Anderson v Boyne USA, Inc., 2012 Mich. App. LEXIS 1725

Anderson v Boyne USA, Inc., 2012 Mich. App. LEXIS 1725

Patrick N. Anderson, Plaintiff-Appellant, v Boyne USA, Inc., Defendant-Appellee.

No. 306060

COURT OF APPEALS OF MICHIGAN

2012 Mich. App. LEXIS 1725

September 11, 2012, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.

PRIOR HISTORY: [*1]

Charlevoix Circuit Court. LC No. 10-028423-NO.

JUDGES: Before: SERVITTO, P.J., and FITZGERALD and Talbot, JJ.

OPINION

Per Curiam.

Plaintiff appeals as of right from an order granting plaintiff’s motion for summary disposition. We affirm.

Plaintiff filed a complaint against defendant after he was paralyzed as the result of a snowboarding accident involving a jump in the terrain park at Boyne Mountain Ski Resort. The trial court found that the Ski Area Safety Act (SASA), MCL 408.341 et seq, barred plaintiff’s claim because the jump was an inherent, obvious, and necessary danger of snowboarding.

We review a trial court’s decision on a motion for summary disposition de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Defendant filed its motion under both MCR 2.116(C)(8) and (C)(10), but the trial court did not specify the rule it was applying when it granted the motion. “However, where, as here, the trial court considered material outside the pleadings, this Court will construe the motion as having been granted pursuant to MCR 2.116(C)(10).” Hughes v Region VII Area Agency on Aging, 277 Mich App 268, 273; 744 NW2d 10 (2007). “A motion for summary disposition under MCR 2.116(C)(10) tests the [*2] factual sufficiency of the complaint.” BC Tile & Marble Co, Inc v Multi Building Co, Inc, 288 Mich App 576, 582-583; 794 NW2d 76 (2010). All documentary evidence supporting a motion under (C)(10) must be viewed in a light most favorable to the nonmoving party. Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich App 264, 278; 769 NW2d 234 (2009). When reviewing a motion pursuant to MCR 2.116(C)(10), summary disposition may be granted if the evidence establishes that “there is no genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter of law.” MCR 2.116(C)(10). “There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in a light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). In addition, this issue requires us to “determine whether a set of circumstances falls within the scope of MCL 408.342(2),” which is a question of law that is also reviewed de novo. Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20; 664 NW2d 756 (2003).

MCL 408.342 provides:

(1) While in a ski area, each skier shall do all [*3] of the following:

(a) Maintain reasonable control of his or her speed and course at all times.

(b) Stay clear of snow-grooming vehicles and equipment in the ski area.

(c) Heed all posted signs and warnings.

(d) Ski only in ski areas which are marked as open for skiing on the trail board described in section 6a(e).

(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snowmaking or snow-grooming equipment.

The parties primarily rely on Anderson to support their positions. In Anderson, the plaintiff was in a ski competition at Pine Knob Ski Resort when he “‘caught an edge’ as he neared the finish line and lost his balance.” Anderson, 469 Mich at 22. As a result, “he collided with the shack housing the race timing equipment.” Id. Our Supreme Court noted that SASA provided [*4] for two types of dangers inherent in skiing: natural and unnatural hazards. Anderson, 469 Mich at 24. The examples listed in the statute “are employed to give the reader guidance about what other risks are held to be assumed by the skier[,]” but are not limited to those listed. Id. at 25. The Court applied the doctrine of ejusdem generis1 and “conclude[d] that the commonality in the hazards is that they all inhere in the sport of skiing and, as long as they are obvious and necessary to the sport, there is immunity from suit.” Id. The question then became “whether the timing shack was within the dangers assumed by plaintiff as he engaged in ski racing at Pine Knob.” Id. The Court held that it was. Id. The Court stated that the timing equipment was necessary for ski racing, and for it to function it had to be protected from the weather. Id. The shack provided that protection and “was obvious in its placement at the end of the run.” Id. The Court stated that the shack was “a hazard of the same sort as the ski towers and snow-making and grooming machines to which the statutes refers us.” Id. at 25-26. Further, the Court rejected the plaintiff’s argument that the shack was larger than other [*5] alternatives that could have been used for timing-equipment protection. Id. at 26. The Court stated, “We find nothing in the language of the statute that allows us to consider factors of this sort. Once hazards fall within the covered category, only if they are unnecessary or not obvious is the ski operator liable.” Id. The Court stated that the Legislature enacted the statute to remove these matters “from the common-law arena” and to grant immunity to ski-area operators. Id. Therefore, the reasonableness of the placement of the shack was not a consideration for the fact-finder. Id.

1 Under ejusdem generis, general terms include those “of the same kind, class, character, or nature as those specifically enumerated.” Anderson, 469 Mich at 25, n 1 (quotation marks and citation omitted).

As noted in Anderson, the list of examples in SASA is not exhaustive and is provided as guidance to determine what other risks a skier assumes. Here, the jump was a danger assumed by plaintiff as he snowboarded in the terrain park. Whether it was created by defendant or not, it was still a variation in the terrain that a snowboarder would expect to see if he or she entered a terrain park. Even if the jump [*6] were not inside the terrain park, it would still be a danger inherent in the sport of skiing; a snowboarder accepts the risks associated with snowboarding, regardless of whether he is snowboarding down a slope or performing tricks in a terrain park. See Barrett v Mount Brighton, Inc, 474 Mich 1087; 1087, 719 NW2d 154 (2006) (indicating that the particular form of skiing does not matter).

While it is true one can snowboard without jumps, a snowboarder enters a terrain park expecting to use jumps, rails, and boxes. Without those features, there would not be a terrain park. If a snowboarder did not want to use those features, he or she would not enter a terrain park. Instead, the snowboarder would simply propel down a ski hill. Therefore, a jump is a necessary feature of a terrain park.

Further, the jump was in an obvious placement in the terrain park. Plaintiff was aware of the original jump the previous day, but failed to inspect the premises on the second day, even though he knew features of the park could change. There were signs posted at the entrance of the terrain park stating that skiers were responsible for familiarizing themselves with the terrain throughout its use, especially [*7] because the features change constantly due to snow conditions, weather, and usage. The jump was not a hidden feature of the park, and plaintiff would have seen it had he heeded all posted signs and warnings, as required by the statute. See MCL 408.342(1)(c).

In addition, plaintiff argues that the jump was not obvious because he was unaware of the danger it created by being improperly constructed; he relies on his expert witness to support the assertion that the jump should have been constructed in a safer way. However, whether there was a safer alternative for creating the jump appears to be irrelevant for purposes of SASA. See Anderson, 469 Mich at 26. The Legislature enacted the statute to remove these matters “from the common-law arena” and to grant immunity to ski-area operators; therefore, reasonableness of the placement of the jump would not be a consideration. Id.

Affirmed.

/s/ Deborah A. Servitto

/s/ E. Thomas Fitzgerald

/s/ Michael J. Talbot

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Nageotte v. Boston Mills Brandywine Ski Resort, et al., 2012 Ohio 6102; 2012 Ohio App. LEXIS 5266 (Ohio App 2012)

Nageotte v. Boston Mills Brandywine Ski Resort, et al., 2012 Ohio 6102; 2012 Ohio App. LEXIS 5266 (Ohio App 2012)

Megan Nageotte, Appellee v. Boston Mills Brandywine Ski Resort, et al., Appellants

C.A. No. 26563

COURT OF APPEALS OF OHIO, NINTH JUDICIAL DISTRICT, SUMMIT COUNTY

2012 Ohio 6102; 2012 Ohio App. LEXIS 5266

December 26, 2012, Decided

SUBSEQUENT HISTORY: Discretionary appeal not allowed by Nageotte v. Boston Mills Brandywine Ski Resort, 2013–Ohio–1622, 2013 Ohio LEXIS 1085 (Ohio, Apr. 24, 2013)

PRIOR HISTORY: [**1]

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO. CASE No. CV 2012 01 0175.

DISPOSITION: Judgment affirmed.

COUNSEL: JEFREY M. ELZEER, Attorney at Law, for Appellants.

MARK J. OBRAL and THOMAS J. SILK, Attorneys at Law, for Appellee.

JUDGES: EVE V. BELFANCE, Judge. MOORE, P. J. DICKINSON, J. CONCUR.

OPINION BY: EVE V. BELFANCE

OPINION

DECISION AND JOURNAL ENTRY

BELFANCE, Judge.

[*P1] Defendants-Appellants Brandywine Ski Resort, Inc. (“Brandywine”) and Raymond Conde appeal from the order of the Summit County Court of Common Pleas which directed Brandywine and Mr. Conde to produce the witness statements of Mr. Conde. For the reasons set forth below, we affirm.

I.

[*P2] On January 15, 2010, Plaintiff-Appellee Megan Nageotte went to Brandywine to go skiing. As she was “utilizing a tramway tow-rope, attempting to disembark, * * * her hand was caused to be pulled into the tramway tow-rope wheel [(bullwheel),] lifting her off of the ground and propelling her around the entire length of the tow-rope wheel, * * * causing serious and lasting personal injuries * * * .” On January 10, 2012, Ms. Nageotte filed a multi-count complaint against Boston Mills Brandywine Ski Resort, Brandywine Ski Resort, Boston Mills Ski Resort, Boston [**2] Mills Ski Resort, Inc., Mr. Conde, in his capacity as an employee, John Doe employees 1-5, John Doe individuals 1-5, and John Doe entities 1-5, which included several counts alleging negligence of the Defendants. Subsequently, Ms. Nageotte sought leave to file an amended complaint, which was unopposed, to consolidate the ski-resort defendants to a single defendant: Brandywine Ski Resort, Inc. Her motion was ultimately granted.

[*P3] The matter proceeded to discovery, at which point the Defendants refused to produce witness statements of Mr. Conde, asserting both attorney-client privilege and the work-product doctrine. Ms. Nageotte filed a motion to compel and/or request for an in-camera inspection and extensive briefing by both sides followed. No hearing was held on the issue. The trial court concluded that neither the work-product doctrine nor the attorney-client privilege applied and granted the motion to compel.

[*P4] Brandywine and Mr. Conde have appealed the trial court’s ruling with respect to the issue of attorney-client privilege but not the application of the work-product doctrine. Ms. Nageotte filed a motion to dismiss this appeal, asserting that this Court lacked jurisdiction; however, [**3] we subsequently denied her motion and see no reason to revisit that ruling.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-APPELLEE’S MOTION TO COMPEL THE PRODUCTION OF STATEMENTS OF DEFENDANT-APPELLANT, RAYMOND CONDE, AS THE ATTORNEY-CLIENT PRIVILEGE PROTECTS THE DISCLOSURE OF THESE STATEMENTS.

[*P5] Brandywine and Mr. Conde assert in their sole assignment of error that the trial court erred in concluding that the attorney-client privilege did not apply to protect disclosure of Mr. Conde’s witness statements. Because we conclude that the trial court did not err in determining that Brandywine and Mr. Conde failed to meet their burden, we affirm its ruling.

[*P6] [HN1] “Although, generally, discovery orders are reviewed under an abuse-of-discretion standard, the Supreme Court of Ohio has concluded that the issue of whether the information sought is confidential and privileged from disclosure is a question of law that should be reviewed de novo.” Ward v. Summa Health Sys., 184 Ohio App.3d 254, 2009-Ohio-4859, ¶ 11, 920 N.E.2d 421 (9th Dist.). [HN2] “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * * .” Civ.R. 26(B)(1).

[*P7] [**4] [HN3] “In Ohio, the attorney-client privilege is governed by statute, R.C. 2317.02(A), and in cases that are not addressed in R.C. 2317.02(A), by common law.” (Internal quotations and citations omitted.) State ex. rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port. Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, ¶ 24, 905 N.E.2d 1221.

R.C. 2317.02(A), by its very terms, is a mere testimonial privilege precluding an attorney from testifying about confidential communications. The common-law attorney-client privilege, however, reaches far beyond a proscription against testimonial speech. The privilege protects against any dissemination of information obtained in the confidential relationship.

(Internal quotations and citations omitted.) Id.

[*P8] Thus, as Ms. Nageotte seeks discovery of Mr. Conde’s witness statements, the question is whether the common-law attorney-client privilege applies. [HN4] “[T]he party seeking protection under the privilege carries the burden of establishing the existence of that privilege.” Perfection Corp. v. Travelers Cas. & Sur., 153 Ohio App.3d 28, 2003 Ohio 3358, ¶ 12, 790 N.E.2d 817 (8th Dist.); see also Grace v. Mastruserio, 182 Ohio App.3d 243, 2007-Ohio-3942, ¶ 19, 912 N.E.2d 608 (1st Dist.), citing Lemley v. Kaiser, 6 Ohio St.3d 258, 263-264, 6 Ohio B. 324, 452 N.E.2d 1304 (1983). [**5] At issue in this case is whether appellants met their burden to establish the existence of the privilege.

[HN5] The common-law attorney-client privilege applies (1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.

(Internal quotations and citations omitted.) Grace at ¶ 19; Perfection Corp. at ¶ 12.

[*P9] Ms. Nageotte sought the witness statements of Mr. Conde because Mr. Conde was working at the top of the slope where Ms. Nageotte was injured. Further, Ms. Nageotte believes that Mr. Conde failed to press an emergency stop button or otherwise prevent Ms. Nageotte’s injuries. Brandywine and Mr. Conde assert that Mr. Conde’s witness statements are protected by the attorney-client privilege because the statements were at some point provided to Brandywine’s and Mr. Conde’s attorney. Brandywine and Mr. Conde submitted the affidavit of their attorney, who averred that he is the attorney representing the defendant in the [**6] action and that Brandywine and its liability insurer provided him with Mr. Conde’s witness statements “for the purpose of defending this action.” In addition, Brandywine and Mr. Conde relied on portions of the deposition of Michael March, who is the supervisor of the lifts at Brandywine Ski Resort. A large portion of Mr. March’s deposition was filed in this case, including some portions filed with Ms. Nageotte’s motion to compel.

[*P10] Mr. March testified that: (1) the ski patrol, an all-volunteer organization, typically obtains witness statements; (2) Mr. March typically reviews those witness statements; (3) the witness statements are obtained and preserved as a part of Brandywine’s insurance program; (4) the statements are turned over to the insurance carrier if there is a claim made; and (5) the witness statements are turned over to counsel if necessary to defend against any litigation. Mr. March agreed during his deposition that part of his job was to take witness statements to understand what happened and that Brandywine would want to understand what happened when someone was injured irrespective of whether the person filed a claim.

[*P11] [HN6] “In order for a document to constitute a privileged [**7] communication, it is essential that it be brought into being primarily as a communication to the attorney.” (Emphasis added.) In re Klemann, 132 Ohio St. 187, 192, 5 N.E.2d 492 (1936). “A document of the client existing before it was communicated to the attorney is not within the present privilege so as to be exempt from production. But a document which has come into existence as a communication to the attorney, being itself a communication, is within the present privilege.” (Emphasis omitted.) (Internal quotations and citations omitted.) Id. See also In re Story, 159 Ohio St. 144, 147, 111 N.E.2d 385 (1953) (noting that, in some instances, reports and records, which according to custom are turned over and remain in possession of attorney, are privileged communications); In re Keough, 151 Ohio St. 307, 85 N.E.2d 550 (1949), paragraph two of the syllabus.

[*P12] In addition, [HN7] “[o]therwise discoverable information cannot be made privileged by merely turning it over to an attorney.” Harpster v. Advanced Elastomer Sys., L.P., 9th Dist. No. 22684, 2005-Ohio-6919, ¶ 14. There is evidence in the record that indicates the statements at issue were not brought into being primarily as a communication to the parties’ attorney and that the document [**8] existed before it was communicated to the attorney and was not prepared at the direction of the attorney. See id. Shortly after the incident, Mr. March began to take witness statements. He agreed during his deposition that part of his job was to take witness statements to understand what happened and that Brandywine would want to understand what happened when someone was injured irrespective of whether the person filed a claim. Moreover, he agreed that, at the time the witness statements were made, he did not know a claim or lawsuit was coming. Further, it is unclear when the statements were handed over to the insurance company and the attorney.

[*P13] Moreover, we cannot say that the trial court erred in concluding that Brandywine failed to meet its burden. It is not clear whether the witness statements at issue were in fact confidential. See Grace, 182 Ohio App.3d 243, 2007-Ohio-3942, at ¶ 19, 912 N.E.2d 608. It is not evident from the materials provided what the circumstances were under which Mr. Conde’s witness statements were taken, how many witness statements were taken, or who in fact took the statements.1 For instance, it is unclear whether Mr. Conde gave his statement with just Mr. March present [**9] or in the presence of other people. Thus, the trial court was not presented with evidence that the witness statements at issue were confidential. If the statements were not confidential, the attorney-client privilege would not apply. See Grace at ¶ 19; Perfection Corp., 153 Ohio App.3d 28, 2003-Ohio-3358, at ¶ 12.

1 Mr. March’s deposition seems to indicate that he took at least one of Mr. Conde’s witness statements; however, Mr. March’s testimony also evidences that ski patrol is typically responsible for taking witness statements.

[*P14] Accordingly, we conclude the trial court did not err in concluding that the witness statements were not protected from discovery by the attorney-client privilege in light of the evidence presented by Brandywine and Mr. Conde. Brandywine’s and Mr. Conde’s assignment of error is overruled.

III.

[*P15] In light of the foregoing, the judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall [**10] constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellants.

EVE V. BELFANCE

FOR THE COURT

MOORE, P. J.

DICKINSON, J.

CONCUR.

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Fisher v. Sierra Summit, Inc. et al., 2011 Cal. App. Unpub. LEXIS 185

Fisher v. Sierra Summit, Inc. et al., 2011 Cal. App. Unpub. LEXIS 185

John G. Fisher, Plaintiff and Appellant, v. Sierra Summit, Inc. et al., Defendants and Respondents.

F058735

COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT

2011 Cal. App. Unpub. LEXIS 185

January 11, 2011, Filed

NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.

PRIOR HISTORY: [*1]

APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. 08CECG00198. Donald S. Black, Judge.

CORE TERMS: ski, patrollers, summary judgment, skiing, user, hole, rented, slope, emergency, snow-sliding, negligently, ambiguous, patrol, bad faith, bleachers, triable, skied, scene, crash, skier, snow, grossly negligent, triable issue, gross negligence, public policy, groomed, manufacturers, distributors, customer, arms

COUNSEL: Lang, Richert & Patch, Robert L. Patch II, David T. Richards, and Ana de Alba for Plaintiff and Appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker, Patrick M. Kelly, Steven R. Parminter, and Kathleen M. Bragg for Defendants and Respondents.

JUDGES: Wiseman, Acting P.J.; Kane, J., Poochigian, J. concurred.

OPINION BY: Wiseman

OPINION

Plaintiff John G. Fisher was severely injured when he crashed while skiing at the Sierra Summit ski resort. He sued defendants Sierra Summit, Inc., and Snow Summit Ski Corporation, contending he crashed because he skied into a hole in the snow that was present because of their negligence. He also claimed that ski patrol personnel at Sierra Summit contributed to his injuries by providing first aid negligently.

The trial court granted defendants’ motion for summary judgment. The court ruled that Fisher’s claim that he was injured by a dangerous condition negligently allowed to exist on the property was barred by a release he signed when he rented his skis, a release in which he expressly assumed the risk of being injured while skiing. It ruled that his claim of negligent first [*2] aid was barred by Health and Safety Code section 1799.102, 1 a Good Samaritan statute that immunizes from tort liability those who, at the scene of an emergency, render emergency care in good faith and not for compensation.

1 Subsequent statutory references are to the Health and Safety Code unless otherwise noted.

We affirm the judgment. We agree with the trial court’s conclusion that the risks Fisher expressly assumed when he signed the release included the risk of the accident he suffered. On the ski patrol issue, however, we will not reach the issue of whether section 1799.102 applies. This would require us to decide whether “for compensation” in that statute means for any compensation or for compensation specifically by the injured person–a question which, under the circumstances, it is unnecessary to decide. Instead, we hold that the claim of negligent first aid by the ski patrollers is barred by section 1799.108, which immunizes those certified to provide prehospital emergency field care treatment at the scene of an emergency except where their conduct is grossly negligent or not in good faith. There is no triable issue of fact regarding whether the ski patrollers were grossly [*3] negligent or acted in bad faith, so summary judgment on this claim properly was granted.

FACTUAL AND PROCEDURAL HISTORIES

Fisher filed his complaint on January 17, 2008. It alleged that on January 20, 2007, “while skiing at a safe speed and in-bounds [on] a properly marked ski slope, [Fisher] encountered a large hole in the snow which was not naturally occurring or obvious.” He crashed. When ski patrol personnel came to the scene, they allegedly failed to provide proper assistance. The accident resulted in Fisher’s quadriplegia. The complaint alleged three causes of action: (1) negligence in defendants’ maintenance of the property, resulting in the hole into which Fisher skied; (2) negligence in defendants’ provision of ski equipment to Fisher; and (3) negligence in defendants’ provision of first aid at the scene of the accident. Fisher voluntarily dismissed the second cause of action, pertaining to equipment, on March 19, 2009.

Defendants filed a motion for summary judgment. With it, they submitted a copy of a release Fisher signed when he rented his skis at the ski shop at Sierra Summit on the day of the accident. The document, a single sheet of 8-by-14-inch paper, printed in four columns [*4] going down the narrow axis of the paper, sets out two distinct agreements, with two separate places for the customer’s signature. The first agreement, occupying the first column, pertains exclusively to equipment. It reads:

“PLEASE READ CAREFULLY BEFORE SIGNING EQUIPMENT RENTAL AGREEMENT & RELEASE OF LIABILITY DO NOT SIGN UNTIL YOU HAVE RECEIVED YOUR EQUIPMENT

“I understand how this ski (snowboard, skiboard) boot-binding system works and I have been fully instructed in its proper use. Any questions I have had about this equipment have been satisfactorily answered. I agree that the binding release/retention setting numbers appearing in the visual indicator windows on the binding correspond to those recorded on this form (Alpine only).

“I agree to have user check this equipment before each use, including the binding anti-friction device (Alpine only), and that I will not use this equipment or if I am not the user permit the user to use this equipment if any parts are worn, damaged, or missing. If I am not the user I will provide all of this information to the user.

“I understand that I may return at any time to have this equipment examined, replaced or repaired.

“X

“USER’S SIGNATURE

DATE”

Fisher’s [*5] signature appears on the line. The second column is filled with a box for the customer’s name, address, shoe size, and other information necessary for providing equipment. Fisher filled out this box.

The second agreement occupies the third and fourth columns. It refers to equipment as well, but also contains a more general release of liability. It reads:

“RELEASE OF LIABILITY “1) READ CONTRACT COMPLETELY, SIGN/INITIAL “2) PROCEED TO CASHIER, HAVE DRIVER’S LICENSE/I.D. READY.

“1. I will read the EQUIPMENT RENTAL AGREEMENT & RELEASE OF LIABILITY of this agreement, and will be responsible for obtaining all of the information required by that section and will provide a copy of same to the user of this agreement. I will make no misrepresentations to the ski shop regarding the user’s height, weight, and age or skier type.

“2. I understand that ALL FORMS OF SNOW-SLIDING, including skiing and snowboarding, are HAZARDOUS activities. I also understand that all forms of snow-sliding have inherent and other RISKS OF INJURY, INCLUDING DEATH, that reasonable care, caution, instruction and expertise cannot eliminate. I further understand that injuries are common and ordinary occurrences during these [*6] activities. I hereby agree to freely, voluntarily and expressly ASSUME and accept any and ALL RISKS of any injury to any part of the user’s body while engaging in any form of snow-sliding.

“(Please Initial )

“3. I understand that the Alpine ski equipment being furnished by Snow Summit, Inc., and/or by Sierra Summit, Inc., and/or by Bear Mountain, Inc., any of their respective agents, employees, or affiliated corporations (hereinafter collectively referred to as “Summit”), forms all or part of a ski-boot-binding system which will NOT RELEASE OR RETAIN AT ALL TIMES OR UNDER ALL CIRCUMSTANCES. I further agree and understand that any ski-boot-binding system does NOT ELIMINATE THE RISK of injuries to any part of the user’s body. If SkiBoard or Snowboard or any other equipment is being furnished, I understand that these systems are designed to NOT RELEASE and do NOT PROTECT against injuries to any part of this user’s body.

“(Please Initial )

“4. I hereby FOREVER RELEASE SUMMIT, as well as the equipment manufacturers and distributors from, and agree to indemnify them and hold them harmless for, any and all responsibility or legal liability for any injuries or damages to any user of any equipment [*7] rented with this form, whether or not such injuries or damages are caused by the NEGLIGENCE OF SUMMIT. I agree NOT to make a claim against or sue Summit, or any of the equipment manufacturers and distributors for injuries or damages relating to or arising from the use of chairlifts or surface tows, any snow-sliding activities and/or the use of this equipment. I accept full responsibility for any and all such injuries and damages.

“(Please Initial )

“5. Summit provides NO WARRANTIES, express or implied. This equipment is accepted “AS IS.” I will accept full responsibility for the care of the listed equipment. I agree to return all rented equipment by the agreed date to avoid additional charges.

“(Please Initial )

“6. I have read this agreement and understand its terms. I am aware that this is a binding contract which provides a comprehensive release of liability. However, it is not intended to assert any claims or defenses that are prohibited by law. I agree that the foregoing agreement is intended to be as broad and inclusive as is permitted by law and that if any portion or paragraph is held invalid, the balance shall continue in full legal force and effect.

“X

“USER’S SIGNATURE

DATE”

Fisher [*8] signed at the bottom and initialed in each place indicated.

Defendants argued that this release constituted Fisher’s express assumption of the risk of having the accident he had and that it formed the basis of a complete defense to all Fisher’s claims. Defendants argued that, apart from the release, all Fisher’s claims were also barred by the common-law doctrine of primary assumption of the risk, set out in Knight v. Jewett (1992) 3 Cal.4th 296 and its progeny. They further contended that Fisher could not produce evidence to support his claims that they were negligent in maintaining the property or providing first aid.

To support the contention that Fisher could not prove negligent maintenance of the property, defendants produced evidence that their personnel had inspected the area where Fisher crashed a number of times the day before and the day of the accident and did not find any condition requiring marking or correction. Defendants also pointed to Fisher’s deposition testimony, implying that he was not on a groomed ski run when he crashed: “And when I skied from one run to the next, I encountered a hole that seemed to be between the two runs.”

To support the contention that Fisher [*9] could not prove negligent first aid, defendants produced evidence that Fisher told the ski patrollers when they first arrived, and before he was moved, that he had no feeling in his feet or legs. He became agitated and combative and sat up and waved his arms; the ski patrollers told him he might injure himself more and should stop. Defendants argued that these facts showed Fisher had already become paralyzed in the crash and that his injuries could not have been caused by anything done by the ski patrollers. Defendants also argued that there was no evidence of any act or omission by the ski patrollers that would have caused additional injury to Fisher.

On the claim of negligent first aid alone, defendants also relied on section 1799.102. At the time, 2 that section provided:

“No person who in good faith, and not for compensation, renders emergency care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered.”

Defendants argued that their ski patrollers were immunized by this statute because they did not receive any compensation [*10] from Fisher. They acknowledged that no published California case has interpreted the phrase “not for compensation” in this statute; they relied on out-of-state cases applying other states’ similar statutes.

2 Section 1799.102 was amended effective August 6, 2009. (Stats. 2009, ch. 77, § 1.) The former version applies to this case.

Defendants additionally relied on section 1799.108, which provides:

“Any person who has a certificate issued pursuant to this division from a certifying agency to provide prehospital emergency field care treatment at the scene of an emergency, as defined in Section 1799.102, shall be liable for civil damages only for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.”

Defendants presented evidence that all the ski patrollers involved had the certification required by this section. They argued that Fisher could present no evidence that the patrollers who assisted him acted in bad faith or with gross negligence.

In opposing the motion for summary judgment, Fisher argued that the release did not apply to his accident because it only released defendants’ liability for injuries arising from problems with the rented [*11] equipment. The court could not grant summary judgment based on the release, he argued, because this was a reasonable interpretation of an ambiguous contract. It was patently ambiguous, he argued, because a reasonable person could interpret its terms to mean that liability was released only for injuries related to equipment failures. It was latently ambiguous because defendants asked skiers to sign it when renting equipment and did not obtain any release from skiers who brought their own equipment, suggesting that liability for equipment failure was its only subject matter. Even if the release did relate to liability for accidents resulting from the condition of the slopes, Fisher argued, it would not bar an action for a dangerous condition that existed because of defendants’ negligence. In addition, even if the release covered defendants’ negligence, it did not cover the particular kind of negligence that caused Fisher’s injuries because releasing liability for injuries caused by falling in an artificially created hole was not reasonably related to the parties’ purpose in entering into the release.

Responding to defendants’ argument that there was no evidence to support his claim that [*12] the accident resulted from their negligent maintenance of the slopes, Fisher submitted evidence intended to show that the hole was on a groomed slope, meant to be skied on by defendants’ patrons, and was not naturally occurring. He cited his own deposition in which he testified that he did not ski on any ungroomed areas. He further testified that there was a wall of ice on the far side of the hole as he skied into it and that the wall of ice “seemed to have a groomed edge on the top of it ….” Fisher also submitted a declaration asserting that the hole was “manmade.” The declaration does not, however, explain how Fisher knew it was manmade. In addition, Fisher pointed to deposition testimony by Sierra Summit personnel acknowledging that holes or walls in the snow can inadvertently be created by snow grooming equipment.

In response to defendants’ claim that Fisher could not produce evidence of negligent first aid, Fisher argued that if he could sit up and wave his arms at the time when the ski patrollers found him, that could mean the patrollers added to his injuries through their first aid. He also claimed the defense was not entitled to summary judgment on the claim unless it offered [*13] expert medical testimony that the ski patrollers acted reasonably.

Fisher argued that the doctrine of primary assumption of the risk does not apply to this case. He said the doctrine applies only to risks inherent in the risky activity, and the risk of an accident like his is not inherent in skiing if the hole was artificial and was present because of defendants’ negligence.

On the ski patrol claim, Fisher contended that section 1799.102 was inapplicable because the ski patrollers were compensated by defendants. He argued that the statute requires simply that aid be given “not for compensation”; that defendants’ view would read words into the statute that are not there; and that this would be improper, regardless of what out-of-state cases interpreting other statutes might say. Fisher also argued that summary judgment could not be granted based on section 1799.108 because of the facts that he was combative and tried to sit up while he was being aided, combined with defendants’ failure to produce an expert opinion. Fisher did not explicitly say how these points helped him, but presumably he meant they showed there was a triable issue of whether the ski patrollers were grossly negligent. [*14] Fisher also did not explicitly say why his ski patrol claim fell outside the release or outside the doctrine of primary assumption of the risk, but his arguments on those topics implied that neither defense would apply because the risk of negligent first aid was not related to equipment failure and not an inherent risk of skiing.

The trial court granted the motion for summary judgment, basing its ruling on the release and on section 1799.102. It held that the release barred Fisher’s claim that his crash was caused by a hole negligently allowed to exist on a slope because the release “clearly and unambiguously releases defendant from liability for injuries or damages caused by defendant’s negligence and which occur to any user of rented equipment, a status which plaintiff indisputably occupied.” It stressed that the release “clearly expresses plaintiff’s agreement not to sue defendant and to accept full responsibility for all injuries and damages relating to or arising from … ‘any snow-sliding activities ….’” The court rejected Fisher’s contention that the release was ambiguous: “[B]y its express terms [it] is not limited to damages or injuries caused by the equipment, but extends to [*15] any claims relating to or arising from snow-sliding activities.” In applying section 1799.102 to the negligent first-aid claim, the court acknowledged that no California cases have interpreted the phrase “not for compensation.” It agreed with defendants’ view that the phrase means not for compensation by the injured party.

DISCUSSION

We review an order granting summary judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) We independently review the record and apply the same rules and standards as the trial court. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925.) The trial court must grant the motion if “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co., supra, at p. 850.) We view the facts in the light most favorable to the nonmoving party and assume [*16] that, for purposes of our analysis, his version of all disputed facts is correct. (Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 159.) A moving defendant can establish its entitlement to summary judgment by either (1) demonstrating that an essential element of the plaintiff’s case cannot be established, or (2) establishing a complete defense. (Code Civ. Proc., § 437c, subd. (o).)

I. Dangerous condition of property claim

Fisher contends that the trial court erred in applying the release of liability he signed to bar his claim that defendants caused his injuries by negligently allowing the existence of the hole into which he skied. We disagree.

A contract in which a party expressly assumes a risk of injury is, if applicable, a complete bar to a negligence action. (Knight v. Jewett, supra, 3 Cal.4th 296, 308, fn. 4; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372.)

“In order for a release of liability to be held enforceable against a plaintiff, it ‘must be clear, unambiguous and explicit in expressing the intent of the parties’ [citation]; the act of negligence that results in injury to the releasee must be reasonably related to the object [*17] or purpose for which the release is given [citation]; and the release cannot contravene public policy [citation]. A release need not be perfect to be enforceable. [Citation.]” (Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1304-1305 (Sweat).)

We address each requirement in turn.

A. The release is clear, unambiguous, and explicit in expressing the intent of the parties

We agree with the trial court’s conclusion that the release Fisher signed applied unambiguously to injuries arising from skiing accidents, including the injuries Fisher suffered, even if caused by defendants’ negligence. The release stated that Fisher “agree[d] to freely, voluntarily and expressly ASSUME and accept any and ALL RISKS of any injury to any party of the user’s body while engaging in any form of snow-sliding.” He agreed to “FOREVER RELEASE SUMMIT,” as well as the equipment manufacturers and distributors, from “any and all responsibility or legal liability for any injuries or damages to any user of any equipment rented with this forms, whether or not such injuries or damages are caused by the NEGLIGENCE OF SUMMIT.” He also agreed “NOT to make a claim against or sue Summit, or any of the equipment [*18] manufacturers and distributors for injuries or damages relating to or arising from the use of chairlifts or surface tows, any snow-sliding activities and/or the use of this equipment.” He accepted “full responsibility for any and all such injuries and damages” and stated that he was “aware that this is a binding contract which provides a comprehensive release of liability” and “is intended to be as broad and inclusive as is permitted by law ….” This language applies to personal injuries sustained by a skier who crashes while skiing at the resort, even if the crash is caused by a defect in the snow or ground surface caused by defendants’ negligent maintenance of the property. Fisher’s argument that the agreement is patently ambiguous because it contains references to the rented equipment and the equipment manufacturers and distributors is not persuasive. The agreement plainly states that Fisher releases the ski resort and the equipment manufacturers and distributors from liability for injuries caused by skiing as well as those caused by equipment problems.

The release also is not latently ambiguous. The parties disagree about whether extrinsic evidence should be considered to determine [*19] whether the release is latently ambiguous, but we need not resolve that debate because no latent ambiguity appears even if the extrinsic evidence Fisher relies on is considered. Fisher relies on evidence that the release is given to customers when they rent equipment; that neither it nor any other release is obtained from customers who ski without renting equipment; and that because of these circumstances he assumed, without reading the release, that it applied only to injuries caused by problems with the rented equipment. None of this detracts from the clarity of the release’s language or renders reasonable an interpretation according to which the release applies only to injuries arising from the rented equipment.

B. The alleged negligence that resulted in the injury was reasonably related to the purpose for which the release was given

The purpose of releases like the one signed by Fisher is to make skiing facilities available to the public by removing liability exposure that would make the operation of those facilities economically infeasible. (National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 938 [if releases of liability in cases [*20] arising from hazardous recreational pursuits are not enforced, “many popular and lawful recreational activities are destined for extinction”].) The alleged negligence in maintenance of the property that Fisher says caused his injuries has a reasonable relationship with this purpose.

Fisher argues that the release’s purpose is not reasonably related to the conditions that caused his accident because the release only applies to accidents caused by equipment problems and was only given to customers renting equipment. We have already explained why the release cannot reasonably be understood as applying only to accidents caused by equipment problems. The fact that the resort gave the release only to skiers who rented equipment does not show that its purpose is limited to accidents arising from equipment, for its plain meaning is to the contrary. It may be that the release fails fully to achieve its economic purpose if the resort does not obtain it from all skiers, but that does not prove it has a different purpose.

Fisher also argues that the release’s purpose is not reasonably related to the conditions that caused his accident because the risk of skiing into an artificially created hole [*21] in a groomed part of a slope is not a reasonably foreseeable risk, and there is at least a triable question of whether the hole he skied into was artificially created and in a groomed part of a slope. He cites Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1490-1491 (Bennett), which reversed summary judgment against the signer of an agreement releasing the defendants from liability for injuries, including injuries caused by the defendants’ negligence, sustained by the signer in a bicycle race. The court held that there was a triable question of whether the accident–a collision with a car on a race course that was closed to traffic–was reasonably foreseeable.

The Bennett court did not cite any authority directly supporting the proposition that an agreement releasing liability for negligence applies only to harms arising from reasonably foreseeable negligence. It relied instead on quotations from the Restatement Second of Torts and the treatise of Prosser and Keeton to the effect that releases apply only to harm-causing conduct of the defendant that was within the contemplation of the parties. (Bennett, supra, 193 Cal.App.3d at p. 1490.) It is not by any means [*22] clear to us that, as a general proposition, parties who enter into a release of liability for negligent conduct related to a hazardous recreational activity intend the release to apply only to negligent conduct that the parties can reasonably be expected to think of in advance. This is especially implausible where, as here, the release explicitly applies to all skiing-related injuries even if caused by defendants’ negligence. To the extent that Bennett is in conflict with these views, we decline to follow it. Further, even if we were applying the holding of Bennett, we would not conclude that it stands in the way of summary judgment here. Even assuming there are triable questions of whether the hole was artificial and whether it was on a groomed portion of the slope, Fisher has suggested no persuasive reasons why a crash caused by negligently maintained slope conditions would not be reasonably foreseeable. What sort of negligence would be more likely to cause a skiing accident than negligence in failing to keep the slopes in good condition?

Fisher relies also on Sweat, supra, 117 Cal.App.4th 1301, in which we held that a release did not apply because the defendant’s negligence was not [*23] reasonably related to the purpose of the release. In that case, the plaintiff attended an auto race where, if an audience member sat in the bleachers in the pit area, the track owners required him or her to sign a release of liability for any claim of injury arising while the audience member was in that area, even if caused by the owners’ negligence. The plaintiff signed the release, sat in the pit area bleachers, and was injured when the bleachers collapsed. After a bench trial, the court found this release was a complete defense. We reversed (id. at p. 1303), concluding that the release was ambiguous; that extrinsic evidence was necessary to resolve the ambiguity; and that, in light of that evidence, the release’s only purpose was to allow audience members to observe the race from the pit area. The collapse of the bleachers had no causal relation to dangers arising from the race, so the release was not applicable to liability for injuries resulting from that collapse. (Id. at pp. 1305-1308.)

Sweat is distinguishable from this case. Here we have an unambiguous release barring negligence liability for any injury resulting from skiing, among other activities. A skiing accident caused [*24] by a negligently maintained ski trail falls within the scope of the release.

The final paragraph of our analysis in Sweat is instructive:

“Here, appellant’s express assumption of risk would cover all hazards related to the automobile race and its observation. As appellant points out, those might include a tire separating from a car and hitting someone, a car leaving the track and striking a spectator, or someone being burned by a crash. This is not an exhaustive list. One can even anticipate the flying tire, the errantly driven car, or the flames from the crash causing the collapse of bleachers. The race activity might lead to less dramatic accidents: a person slipping on automotive grease in the pit area, or even a race observer slipping on spilled soda while keenly watching the race as he or she steps through the bleachers. The release agreement here does not, however, contractually charge appellant with assuming the risk of injury from defectively constructed or maintained bleachers, should a full trial on the merits establish such facts.” (Sweat, supra, 117 Cal.App.4th at p. 1308.)

The accident in Sweat fell outside the release because it was causally unrelated to the race, to allow [*25] the observation of which was the purpose of the release. An accident unrelated to skiing, such as a fall inside a ski lodge caused by a defect in the floor unreasonably allowed to be present, would be comparable to the accident in Sweat and would fall outside the release, for it would be causally unrelated to skiing or any of the other activities mentioned in the release. Here, however, if the skiing accident were caused by defendant’s negligent maintenance of the slopes, as Fisher claims, it would be comparable to an accident caused by something negligently allowed to remain on the floor in the race-observation area–grease or soda–by the track owners in Sweat. That cause is reasonably related to skiing and consequently to the purpose of the release.

C. The release is not against public policy

Fisher argues that there is a public policy of “fundamental fairness,” and that the release violates this policy because it “appears, on its face, to only relate to the rental equipment ….” As we have said, this is not the case. Fisher also repeats here the argument that, because the release was obtained only from skiers who rented equipment, it is only applicable to accidents caused by the equipment. [*26] Again, this circumstance does not negate the explicit statements in the agreement releasing defendants from liability for any injuries sustained while the customer engages in snow-sliding activities.

Fisher also argues that the release violates public policy because it allows defendants to be negligent in maintaining their ski slopes without incurring liability. As we have seen, however, the law allows releases of liability for injuries caused by negligence during hazardous recreational activities, and does so in order to prevent exposure to liability from making those activities economically infeasible. Finally, Fisher argues that public policy was violated because defendants obtained releases only from those renting equipment but did not “make it unquestionably clear” that it was doing so. There is no public policy that requires this be done. A release must be clear about what is being released, and the release at issue here satisfied that requirement, as we have said.

The parties have extensively briefed the subject of primary assumption of the risk, but our holding on the release makes it unnecessary for us to address that issue.

II. Negligent first-aid claim

Fisher argues that the [*27] trial court erred when it held that section 1799.102 barred his claim of negligent first aid by the ski patrollers. He says summary judgment could not properly be granted on this basis because there was evidence that the ski patrollers received compensation for performing their duties. We need not break ground in this unsettled area because an alternative basis for the judgment–a basis raised by defendants in the trial court–is available. (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22 [appellate court may affirm summary judgment on any correct legal theory raised by parties in trial court].)

This basis is section 1799.108, which immunizes certified first-aid providers except in cases of gross negligence or actions not taken in good faith. In support of their motion, defendants submitted evidence that all the ski patrollers who aided Fisher were properly certified. They also submitted evidence of the aid the patrollers gave, arguing that nothing in their actions or the surrounding circumstances gave any support to a claim of gross negligence or bad faith. This evidence included Fisher’s own statement in his deposition that the only thing he remembered about [*28] the people who aided him was that they insisted he lie still. It also included declarations by three patrollers who assisted Fisher: Mary Warner, Russ Bassett, and Richard Bailey. According to these declarations, a guest was helping Fisher when the ski patrollers first arrived. The guest said he was an EMT. The patrollers brought a toboggan, a backboard, a cervical collar, splints, and oxygen. Fisher was on the ground and the guest was correctly supporting his cervical spine, according to one of the patrollers. Fisher repeatedly yelled that his arms, legs, and back were broken and that he was going into shock. When one of the patrollers pinched Fisher’s leg and determined that he had no feeling in it, Fisher said he was paralyzed and became agitated. He swung his arms and tried to sit up until the patrollers calmed him and persuaded him to be still. The patrollers used the toboggan and backboard to bring Fisher to the first-aid patrol room, where his care was taken over by paramedics. The paramedics decided to transport Fisher to the hospital by ambulance.

In his opposition to the motion, Fisher presented no additional evidence. He only pointed to the evidence that he waved his arms [*29] and tried to sit up. Presumably his point was that, in the end, his injuries were too severe to allow this and therefore the patrollers might have made the injuries worse. He did not say so explicitly, however, and presented no supporting evidence. He also pointed out that defendants did not present an expert’s opinion that the patrollers did not act negligently.

A defendant moving for summary judgment has, at all stages, the burden of persuading the court that the plaintiff cannot establish an essential element of his cause of action. The defendant need not conclusively negate an element of the cause of action, however. Rather, the defendant must first bear a burden of producing evidence making a prima facie showing of the nonexistence of a triable issue of material fact. The burden of production then shifts to the nonmoving plaintiff, who must produce evidence making a prima facie showing that a triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-851, 853-855.)

In this case, Fisher does not claim there is a triable issue about whether the ski patrollers were certified. 3 He only claims there is a triable issue about whether they were [*30] grossly negligent or acted in bad faith. Defendants sustained their burden of producing evidence making a prima facie showing that there is no triable issue on the element of gross negligence or bad faith. As described in the ski patrollers’ declarations, the first aid they gave included nothing upon which a claim of gross negligence or bad faith could be founded. The fact that Fisher sat up and waved his arms, or attempted to do so, does not show that the ski patrollers made his injuries worse. There was no evidence that the sitting and waving or attempted sitting and waving were actions that later became impossible for Fisher, and no evidence that even if they did, this was because of anything done or omitted by the ski patrollers. Contrary to Fisher’s argument, there is no authority for the view that summary judgment can be obtained by a defendant on a claim of grossly negligent first aid only if the defendant presents an expert opinion that there was no gross negligence. Fisher presented no evidence to sustain his burden of making a prima facie showing that a triable issue exists on the element of gross negligence or bad faith. Defendants have sustained their ultimate burden of [*31] persuasion that Fisher cannot prove an essential element of this cause of action.

3 At oral argument, Fisher claimed, for the first time, that “some” of the ski patrollers were not certified. This claim does not appear in his discussion of this issue in his opening brief or his reply brief. It did not appear in his memorandum of points and authorities in opposition to the motion for summary judgment or the errata he filed to that memorandum. In their statement of undisputed facts, defendants stated that responders Russ Bassett, Richard Bailey, Marc Smith, Tim Crosby, and Mary Warner were qualified in first aid through, or were first-aid instructors for, the American Red Cross or the National Ski Patrol. Fisher agreed that these facts were undisputed. He did not argue that these credentials did not amount to certification within the meaning of section 1799.108. His separate statement of disputed facts did not state any contrary evidence or assert that any uncertified patrollers administered first aid. A factually unsupported claim made for the first time at oral argument on appeal is not grounds for reversing summary judgment.

Defendants argue that the release, the doctrine of primary [*32] assumption of the risk, and section 1799.102 all also support the court’s decision. We need not address these additional theories. 4

4 In their appellate brief, defendants assert that the trial court “implicitly determined the Release did not apply to the actions of the ski patrol” because it granted summary judgment on that claim on a different basis. This is not correct. A court does not implicitly reject a theory merely by basing a decision on another theory. “[A]n opinion is not authority for a proposition not therein considered.” (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)

DISPOSITION

The judgment is affirmed. Defendants are awarded costs on appeal.

Wiseman, Acting P.J.

WE CONCUR:

Kane, J.

Poochigian, J.

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O’Connell v. Killington, Ltd., 164 Vt. 73; 665 A.2d 39; 1995 Vt. LEXIS 74

O’Connell v. Killington, Ltd., 164 Vt. 73; 665 A.2d 39; 1995 Vt. LEXIS 74

Mary Ryan O’Connell v. Killington, Ltd.

No. 93-394

SUPREME COURT OF VERMONT

164 Vt. 73; 665 A.2d 39; 1995 Vt. LEXIS 74

August 4, 1995, Filed

HEADNOTES

1. Torts – Generally – Existence of Duty

A landowner’s duty does not extend to assisting the prosecution of claims arising from torts of third parties also using the land.

2. Torts – Generally – Existence of Duty

The main concern of defendant’s ski patrol employees is and should be to give emergency medical assistance, remove the injured skier safely from the mountainside, and obtain necessary medical care; court was reluctant to dilute these critical, emergency duties with a responsibility to pursue and identify another skier for purposes of an injured skier’s litigation.

3. Torts – Generally – Existence of Duty

The Legislature has provided, as of 1994, that a skier involved in a collision has the responsibility to provide his or her name and local and permanent address to the other parties to the collision, but has also made clear that the ski area has no duty to obtain that identification. 12 V.S.A. 1038(b).

4. Torts – Generally – Existence of Duty

Although ski area could voluntarily assume the duty to investigate accidents on behalf of injured skiers, ski area’s employee manual provisions did not show the assumption of this responsibility because the manual made clear that the investigatory responsibilities placed on employees were for the protection of the ski area with respect to suits against it – there was nothing to indicate that they were assumed as duties to third parties.

5. Torts – Generally – Existence of Duty

To the extent ski area’s policy intended that its employees identify colliding skiers to aid in litigation between them, the rationale of Larocque v. State Farm Insurance Co., 163 Vt. 617, 618, 660 A.2d 286, 288 (1995), that a policy directing employees to investigate claims did not create a duty to a particular claimant, was controlling and prevented use of defendant’s manual to create a negligence duty.

6. Torts – Generally – Existence of Duty

In personal injury case against ski area, although the proper meaning of the employee manual may have been a question of fact for the jury, if a duty were present under some construction of the manual, the threshold question of whether the manual, however construed, could give rise to a duty was for the court.

COUNSEL: Thomas M. French, Brattleboro, for plaintiff-appellee.

Allan R. Keyes and John J. Zawistoski of Ryan Smith & Carbine, Ltd., Rutland, for defendant-appellant.

JUDGES: PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

OPINION BY: JOHN A. DOOLEY

OPINION

[*74] [**41] DOOLEY, J. Defendant ski area, Killington, Ltd., appeals from a negligence judgment against it based on defendant’s failure to identify an unknown skier with whom plaintiff, Mary Ryan O’Connell, collided while skiing. On appeal, defendant claims that it owed no duty to plaintiff to identify the other skier, that plaintiff’s claim is barred because the jury found that the accident resulted from an inherent risk of skiing, and that the court made errors in its charge to the jury. We reverse.

[*75] On January 12, 1990, plaintiff was skiing one of defendant’s most difficult trails. She stopped to rest at the edge of the trail and was struck by another skier who lost control on the ice at the center of the trail. One of [***2] defendant’s ski patrollers, along with plaintiff’s sister, arrived at the scene shortly after the collision. Plaintiff requested that they obtain the name of the other skier. While the ski patroller was occupied with evaluating and stabilizing plaintiff’s injury, plaintiff’s sister spoke to the other skier, and requested that he follow plaintiff to the patrol station and identify himself. The skier failed to arrive at the patrol station as requested, and has never been identified. Plaintiff’s injuries proved serious, and she and her husband filed suit against defendant in Rutland Superior Court, complaining that defendant negligently (1) failed to warn of the icy conditions on the trail, (2) failed to close the trail because of its dangerous condition and (3) failed to obtain the identity of the skier who had collided with plaintiff. Defendant denied those allegations and alleged that plaintiff’s injuries were the consequence of her assumption of the inherent risks of skiing.

The trial court denied defendant’s motion for directed verdict, both at the close of plaintiff’s case and at the close of the evidence. The court submitted the failure-to-warn and the failure-to-identify counts [***3] to the jury. In its instructions to the jury on the failure-to-identify count, the court stated that the jury could find that defendant had assumed the duty to identify skiers involved in accidents based on its employee manual. This manual instructed defendant’s employees to investigate thoroughly all accidents and to obtain the identity of everyone involved. The court instructed the jury that, to decide defendant’s negligence on this count, it need determine only whether defendant had an opportunity to identify the other skier involved in the accident.

Based on the instructions, the jury found for defendant on the failure-to-warn count and on the failure to close the trail because it found that the accident resulted from an inherent risk of the sport of skiing. It further found that defendant had negligently failed to obtain the identity of the other skier and that its negligence was the proximate cause of the loss of plaintiff’s “right to compensation” from that skier for her injuries. The jury awarded plaintiff $ 71,108.69 in damages, and the trial court denied defendant’s motions for judgment notwithstanding the verdict and for a new trial.

Defendant raises three issues on [***4] appeal: (1) whether defendant had a duty to plaintiff to obtain the identity of the other skier who collided [*76] with her; (2) whether plaintiff’s failure-to-identify claim is precluded by the jury’s finding that the accident and injury were a result of one or more inherent risks in the sport of skiing; and (3) whether certain instructions to the jury were proper. We agree with defendant’s position on the first issue and, therefore, reverse. Because the case must be dismissed, we do not reach the second and third issues.

Defendant first claims that it owed plaintiff no duty to obtain the identity of the other skier, and that, accordingly, the trial court erred by instructing the jury that could find that defendant’s employee manual created such a duty. We agree.

In deciding this question, we first note that although the Vermont Legislature has passed a statute governing liability vis-a-vis the obtaining of names of skiers involved in a collision, see 12 V.S.A. § 1038(b)(2), this accident preceded the effective date of the statute so that it does not apply to this case. In any event, we conclude that the result in this case [**42] is the same under either the common law or the statute. 1 [***5]

1 [HN1] 12 V.S.A. § 1038(b), effective June 21, 1994, provides, in part:

(b) Collision at a ski area.

(1) Any person who is involved in a collision with a skier at a ski area which results in bodily injury to any party to the collision has a duty to provide his or her name and local and permanent address to the other parties to the collision and shall proceed to the ski area first aid facility and provide that information to the ski area first aid personnel.

(2) No ski area, its employees or agents shall be held responsible for ensuring compliance with these duties by any person, nor shall it be liable in any way for a failure to obtain such person’s name or address.

[HN2] Common-law negligence requires that there be a legal duty owed by defendant to plaintiff, breach of that duty, that such breach be the proximate cause of plaintiff’s harm, and that plaintiff have suffered actual loss or damage. See Langle v. Kurkul, 146 Vt. 513, 517, 510 A.2d 1301, 1304 (1986). Clearly, the first of these elements, duty, [***6] is central to a negligence claim, and its existence is primarily a question of law. Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 487, 622 A.2d 495, 499 (1993). The imposition of a duty is “‘an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.’” Id. (quoting W. Prosser & W. Keeton, The Law of Torts § 53, at 358 (5th ed. 1984)).

Plaintiff’s theory is that defendant had a duty to obtain the name of the skier who collided with her so plaintiff could sue that skier for her damages caused by the collision. Under plaintiff’s theory, this duty arises, first and foremost, because plaintiff’s injury occurred on [*77] defendant’s land, held open to the public for skiing. See Restatement (Second) of Torts § 314A(3) (1965).

In Langle, through the discussion of decisions from other states, we identified a number of factors to consider in determining whether a duty exits. See Langle, 146 Vt. at 519-20, 510 A.2d at 1304-05. [HN3] These factors may include the degree of certainty that plaintiff suffered injury, the closeness of the connection between defendant’s conduct and plaintiff’s injury, the moral blame [***7] attached to defendant’s conduct, the policy of preventing future harm, the burden to the defendant, the consequences to the community of finding a duty, and the availability and cost of insurance. Id. We think that an additional factor is more significant herd — that is, that plaintiff seeks a duty to prevent purely economic loss. Negligence law does not generally recognize a duty to exercise reasonable care to avoid intangible economic loss to another unless one’s conduct has inflicted some accompanying physical harm. See Prosser & Keeton, supra, § 92, at 657; Breslauer v. Fayston School Dist. Vt. , , 659 A.2d 1129, 1132 (1995). Thus, a possessor of land open to the general public has a duty to aid and protect a member of the public coming on the land against unreasonable risk of “physical harm” only. Restatement (Second) of Torts § 314A(1)(a), (3). Physical harm does not include economic loss. See Breslauer, Vt. at , 659 A.2d at 1132; Restatement (Second) of Torts § 7(3).

Our review of the decisions from other jurisdictions indicates that, [HN4] absent a special relationship or undertaking, there is no duty to protect [***8] another’s litigation interest. For example, there is no duty to preserve possible evidence for another party to assist that party in future litigation against a third party. See Edwards v. Louisville Ladder Co., 796 F. Supp. 966, 969 (W.D. La. 1992); Murphy v. Target Products, 580 N.E.2d 687, 689 (Ind. Ct. App. 1991); Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 734 P.2d 1177, 1179 (Kan. 1987). A municipal police force has no duty to investigate motor vehicle accidents to identify possible tortfeasors. See Jackson v. Heymann, 126 N.J. Super. 281, 314 A.2d 82, 85 (N.J. Super. Ct. Law Div. 1973); Caldwell v. City of Philadelphia, 358 Pa. Super. 406, 517 A.2d 1296, 1303 (Pa. Super. Ct. 1986). Similarly, a taxicab company owes no duty to an injured passenger to identify the operator of the vehicle which caused the accident and injured the passenger. See Stupka v. Peoples Cab Co., 437 Pa. 509, 264 A.2d 373, 374 (Pa. 1970). An exception to this rule may exist when there is some special relationship or duty arising from contract, statute or other special circumstance. See Bondu v. Gurvich, 473 So. 2d 1307, 1313 [**43] (Fla. Dist. Ct. App. 1984) [*78] (claim against defendant hospital for destruction of evidence permitted because hospital [***9] had statutory duty to maintain medical records); Koplin, 734 P.2d at 1179.

This general principle has been applied to circumstances identical to those present here. Two reported decisions have concluded that a ski area has no duty to obtain the identity of a negligent skier who collides with and injures the another skier. See Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159, 1164 (Idaho 1990); Phillips v. Wild Mountain Sports, Inc., 439 N.W.2d 58, 59-60 (Minn. Ct. App. 1989). Based on its prediction of our negligence law, the United States District Court for the District of Vermont determined that a ski area has no duty to identify the negligent skier. See Emil v. Sherburne Corp., No. 80-22, slip op. at 2-3 (D. Vt. July 8, 1980). We agree with that court that the landowner’s duty does not extend to “assisting the prosecution of claims arising from . . . torts” of third parties also using the land. Id. at 3.

We adopt the reasoning of the above decisions and conclude that no duty exists in these circumstances. Although our primary reason is the economic nature of the interest plaintiff asserts, other factors also point to the absence of a duty here. The main concern [***10] of defendant’s ski patrol employees is and should be to give emergency medical assistance, remove the injured skier safely from the mountainside, and obtain necessary medical care. We are reluctant to dilute these critical, emergency duties with a responsibility to pursue and identify another skier. See Caldwell, 517 A.2d at 1301 (police duty at accident scene was to ensure victim’s physical well-being in expediting her trip to the hospital, not to protect the financial interests of the plaintiff).

Moreover, even if the ski area had a duty to identify, it would have only a limited ability to enforce that duty against an uncooperative skier. This suggests that any recognition of a duty should come from the Legislature, which can provide the ski area the means to discharge the duty. In fact, the Legislature has provided, as of 1994, that a skier involved in a collision has the responsibility “to provide his or her name and local and permanent address to the other parties to the collision,” but has also made clear that the ski area has no duty to obtain that identification. 12 V.S.A. § 1038(b).

Finally, we consider plaintiff’s argument that there is a special circumstance present [***11] in this case that creates a duty. Plaintiff relies primarily on defendant’s employee manual that establishes procedures [*79] in case of ski accidents. These procedures include completing an accident reporting form, obtaining names and addresses of witnesses to the accident, obtaining witness statements and recording observations at the accident scene. Plaintiff argues that these provisions amount to the voluntary assumption of a duty to investigate accidents, particularly skier collisions. See Restatement (Second) of Torts § 323 (one who gratuitously undertakes “to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability” for “physical harm” resulting from negligent performance of undertaking).

Although we agree that defendant could voluntarily assume the duty to investigate accidents on behalf of injured skiers, we do not believe that the manual provisions show the assumption of this responsibility. The manual makes clear that the investigatory responsibilities placed on employees are for the protection of defendant with respect to suits against it. There is nothing to indicate that they were assumed [***12] as duties to third parties.

This exact claim was made and rejected in Northcutt v. Sun Valley Co., 787 P.2d at 1164. The court held that imposing such requirements on employees did not create a duty to skiers to act on the skiers’ behalf. This holding is consistent with our decisions in similar circumstances. In Smith v. Day, 148 Vt. 595, 538 A.2d 157 (1987), engineers on a railway train sued Norwich University when a university student shot at the train and injured them. We concluded that, although defendant sought to control its students via the imposition of numerous rules and regulations, it did not assume a duty to third persons to control the volitional criminal [**44] acts of the students. Id. at 598, 538 A.2d at 159. More recently, in Larocque v. State Farm Ins. Co., Vt. , , 660 A.2d 286, 288 (1995), we concluded that a liability insurer’s employee manual, while directing employees to investigate claims in an efficient and cooperative manner, did not create any duty to a particular claimant to process the claim in good faith and consistent with the manual. Citing Smith, 148 Vt. at 598, 538 A.2d at 158-59, we stated that conducting [***13] one’s “business in a way that [is] responsive to third-party claimants does not create a legally enforceable duty to do so with respect to a particular claimant.” Id. To the extent defendant’s policy intended that its employees identify colliding skiers to aid in litigation between [*80] them, we believe that the rationale of Larocque is controlling and prevents use of defendant’s manual to create a negligence duty. 2

2 Plaintiff relies upon a Colorado trial court decision that denied a ski area summary judgment in a failure-to-identify case similar to that here. Burgener v. Keystone Arapahoe Ltd. Partnership, No. 90 CV 215, slip op. at 3 (Colo. Dist. Ct., Summit County Sept. 5, 1991). In that case, the plaintiff argued successfully that the defendant assumed the responsibility to investigate in certain publications and materials that were distributed to the public, including the plaintiff. These were read and relied upon by the plaintiff’s husband, who skied with her. This case has none of the public promotional and reliance elements of Burgener and is distinguishable on that basis.

[***14] In adopting this position, we are necessarily rejecting the suggestion that the jury could decide whether the manual creates a duty to investigate and identify the other skier. The trial court’s supplemental charge to the jury appears to have adopted this approach. As we indicated earlier, the existence of a duty is primarily a question of law. See Denis Bail Bonds, Inc., 159 Vt. at 487, 622 A.2d at 499. Although the proper meaning of the employee manual may have been a question of fact for the jury, if a duty were present under some construction of the manual, the threshold question of whether the manual, however construed, could give rise to a duty was for the court. See Smith v. Day, 148 Vt. at 598 n.3, 538 A.2d at 159 n.3.

Reversed.

FOR THE COURT: John A. Dooley, Associate Justice

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McDonough v. National Off-Road Bicycle Assn. (NORBA), 1997 U.S. Dist. LEXIS 8036 (Dist. Del 1997)

McDonough v. National Off-Road Bicycle Assn. (NORBA), 1997 U.S. Dist. LEXIS 8036 (Dist. Del 1997)

Arthur Mcdonough and Linda Mcdonough, in their own right and as Parents of Bradley Alan Mcdonough, deceased, and Arthur Mcdonough in his own right and as Administrator of the Estate of Bradley Alan Mcdonough, Plaintiffs, v. National Off-Road Bicycle Assn. (NORBA), U.S. Cycling Fed., and Delaware Trail Spinners, Defendants.

C.A. No. 95-504-SLR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

1997 U.S. Dist. LEXIS 8036

June 2, 1997, Decided

NOTICE: [*1] FOR ELECTRONIC PUBLICATION ONLY

DISPOSITION: Defendants’ motion for summary judgment denied.

COUNSEL: For plaintiffs: Donald Eilhu Evans, Esquire, Wilmington, Delaware. Of Counsel: Edwin F. McCoy, Esquire., Philadelphia, Pennsylvania.

For defendants: Mason E. Turner, Esquire, of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Delaware.

JUDGES: Sue L. Robinson, District Judge

OPINION BY: Sue L. Robinson

OPINION

MEMORANDUM OPINION

Date: June 2, 1997

Wilmington, Delaware

ROBINSON, District Judge

I. INTRODUCTION

This case is a wrongful death/survival action filed as a result of Bradley McDonough’s (“McDonough”) death on August 30, 1993. Plaintiffs are Arthur and Linda McDonough, the parents of the decedent (collectively referred to as “plaintiffs”). Defendants are The National Off-Road Bicycle Association (“NORBA”), United States Cycling Federation (“Federation”), and the Delaware Trail Spinners (“Trail Spinners”). The court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Presently before the court is defendants’ motion for summary judgment. (D.I. 66) For the following reasons, defendants’ motion for summary judgment shall be denied.

II. BACKGROUND

[*2] In the summer of 1993, Bradley McDonough developed an interest in off-road bicycle competition. In the spring or early summer of 1993, McDonough acquired an off-road bike (also known as a mountain bike) and rode with his college friends, Randall Blaker (“Blaker”), Michael Odenwald (“Odenwald”), and Kenny Steidle (“Steidle”). (D.I. 71 at A51-A52) On August 8, 1993, McDonough, Blaker, Odenwald and Steidle participated in a NORBA sanctioned event in Windham, New York (“Windham race”). (D.I. 71 at A51) In all NORBA events, participants are required to obtain a permanent membership or a one-day trial membership. The application for the one-day membership contains a section entitled “Agreement and Release of Liability” (“release”). (D.I. 68 at A3)

On the day of the Windham race, McDonough, along with his friends, paid for a one-day trial membership and signed the release. (D.I. 71 at A 54-55; D.I. 68 at A5) In signing the release, Blaker stated that he did not really read it, but simply skimmed through it. (D.I. 71 at A54) Blaker stated that he assumed it was a release “to some degree and we understood that we were involved in a sport.” (D.I. 71 at A54-A55)

The Windham race course was [*3] basically a two lap course. (D.I. 71 at A56) McDonough and Steidle quit after one lap because they were tired. (D.I. 71 at A56) Blaker, who was behind McDonough and Steidle, also stopped after the first lap since his friends had stopped. (D.I. 71 at A56) Odenwald did not complete the race either, because his bicycle broke. (D.I. 71 at A56) All four friends had water bottles on their bikes during the race. (D.I. 71 at A54)

On August 15, 1993, McDonough and Blaker participated in another NORBA sanctioned event in Delaware, called the C & D Canal Classic (“C & D race”). (D.I. 84 at A109) The C & D race consisted of three race levels: (1) Beginners’; (2) Sport; and (3) Pro/Expert. (D.I. 71 at A22) McDonough and Blaker both entered the Beginners’ level. (D.I. 71 at A23 and A59) The Beginners’ course was a 14 mile course “over the local terrain which included steep and gradual hills, open gravel and dirt roads, and wooded trails.” (D.I. 71 at A23) The Sport and Pro/Expert courses also used the same 14 miles designated for the Beginners’ course. (D.I. 71 at A38)

The Beginners’ course was difficult because of its layout. (D.I. 71 at A38) The terrain on the Beginners’ course made it difficult [*4] for riders to access their own water without stopping. (D.I. 71 at A38) Some areas on the course were smoothed out so that riders could stop or ride slowly and access their water bottles. (D.I. 71 at 38) The course, however, did not have any neutral area where water was given out to the race contestants. (D.I. 71 at A38) The only water the race contestants could drink was the water that they brought themselves. (D.I. 71 at A38) No physician was present at the race. (D.I. 71 at A24) There was neither an ambulance nor emergency medical personnel present at the race site. (D.I. 71 at A23) Denise Dowd (“Dowd”), another participant in the Beginners’ level, stated that the course was “difficult due to the heat and humidity and layout.” (D.I. 71 at A87) Although Dowd is an avid biker and had participated in approximately 20 mountain bike races, it took her over an hour and fifteen minutes to complete the course. (D.I. 71 at A87)

Defendant Trail Spinners, a NORBA club member, received sanctioning from NORBA to promote the C & D race. In order to receive sanctioning, defendant Trail Spinners had to complete a “Pre-Event Planning Checklist” (“Checklist”) provided by NORBA. (D.I. 84 at A109-A110) [*5] The Checklist contains several questions relating to the safety precautions taken for the event. Trail Spinners, through its race director William Bowen (“Bowen”), represented on the Checklist that there would be, inter alia, emergency medical assistance on site and adequate water for the participants and spectators. (D.I. 84 at A110) Bowen specifically represented that there would be an ambulance on site and adequate water or fluids for participants and spectators before, during, and after the race. (D.I. 84 at A110) The Checklist also provided that: “A NORBA Official must be present at your event. The NORBA Official will complete their portion of the checklist before allowing the event to proceed.” (D.I. 84 at A109) The Checklist identifies Elizabeth Small (“Small”) as the NORBA Official. Small, however, did not complete her portion of the Checklist and did not sign it. (D.I. 84 at A110)

When McDonough arrived at the race site, he again paid for a one-day trial membership and signed the release. (D.I. 68 at A7) Blaker also paid for a one-day trial membership and signed the release. (D.I. 71 at A59) No one at the race site explained the documents to the race participants. (D.I. [*6] 71 at A41) The release provides in part:

I acknowledge that cycling is an inherently dangerous sport in which I participate at my own risk and that NORBA is a non-profit corporation formed to advance the sport of cycling, the efforts of which directly benefit me. In consideration of the agreement with NORBA to issue an amateur license to me, hereby on behalf of myself, my heirs, assigns and personal representatives, I release and forever discharge NORBA and the United States Cycling Federation, its employees, agents, members, sponsors, promoters, and affiliates from any and all liability, claim, loss, cost or expense, and waive any such claims against any such person or organization, arising directly or indirectly from or attributable in any legal way to any action or omission to act of any such person or organization in connection with sponsorship, organization or execution of any bicycle racing or sporting event, in which I may participate as a rider, team member or spectator.

(D.I. 68 at A5) On the back of the trial membership and release certain “Racing Regulations” are set forth. (D.I. 68 at A8). At section 4.6, NORBA recommends that each participant carry “at least [*7] 8 ounces of water.” (D.I. 68 at A8) Section 5.6 provides that neutral water will be provided for any race that exceeds 60 minutes in length. (D.I. 68 at A8)

According to James McGroerty (“McGroerty”), the President, Officer, and Co-Founder of Trail Spinners, it is commonly understood by those who participate in races that they are required to sign the release. (D.I. 71 at A45) McGroerty stated that: “Most of [his] friends who are avid racers look at the form as you are signing this paper basically saying yes, I am doing this race at my own risk on the course. If I get hurt, it’s my own fault. It’s basically the way we look at it when we sign these forms and compete in an event.” (D.I. 71 at A45) Dowd, who also signed the release that day, stated that she understood that the release was intended to protect the defendants from liability. (D.I. 71 at A89) Dowd, however, did not believe that the release was intended to relieve the defendants from providing “common sense safety precautions, particularly on site trained medical personnel with an ambulance.” (D.I. 71 at A89) Dowd stated that she would not have signed the release if she had known there was no medical assistance immediately [*8] available. (D.I. 71 at A89)

Before the start of the race, McGroerty addressed the race contestants from the hood of his car. (D.I. 71 at A38 and A42) He addressed the participants without a bullhorn. (D.I. 71 at A37) There were approximately 80 to 100 total participants in the group that raced with McDonough and Blaker. (D.I. 71 at A37 and A62) McGroerty told the race contestants that there was no ambulance on site, but that one could be called. (D.I. 71 at A42) McGroerty did not specifically warn the participants about heat exhaustion. (D.I. 71 at A42) Instead, McGroerty told the contestants to be “careful, . . . take their time” and not to “ride over your head, which means going beyond your ability.” (D.I. 71 at A42) McGroerty also told them to “watch their bodies, make sure they didn’t push themselves too hard because it was hot out.” (D.I. 71 at A42) Finally, he told them that “if they felt dizzy or nauseous, to back off, stay cool and keep from going too hard.” (D.I. 71 at A42) McGroerty did not get any questions after he addressed the participants. (D.I. 71 at A37) McGroerty testified that he does not have Red Cross, CPR or EMT certification of any kind. (D.I. 71 at A43) He [*9] also does not know the signs of exertional heat stroke. (D.I. 71 at A43)

At approximately 9:00 a.m., McDonough and Blaker left the starting line with other contestants. (D.I. 71 at A23 and A62) Both McDonough and Blaker had brought water bottles with them. (D.I. 71 at A61) The temperature on that day was “extremely hot [] with high humidity.” (D.I. 71 at A85) Although McDonough and Blaker began the race together, they were separated because Blaker had a flat tire. (D.I. 71 at A63) After Blaker changed his flat tire, he continued in the race and eventually completed the course. (D.I. 71 at A64) McDonough, however, did not. (D.I. 71 at A64)

McGroerty found McDonough when he went to investigate whether some participants had accidently or deliberately missed the course markings. (D.I. 71 at A44) McGroerty first saw McDonough’s bike. As he approached the bike, he saw McDonough who was about five or six feet from his bike. (D.I. 71 at A44) According to McGroerty, other participants would not have seen McDonough since he was off to the side of the course, but could have seen his bike. (D.I. 71 at A44)

When McGroerty found McDonough, he was on the ground lying on his side and his breathing [*10] was heavy and labored. (D.I. 71 at A44) McDonough appeared to have trouble breathing and was not responsive. (D.I. 71 at A44) According to McGroerty, McDonough appeared to be unconscious. (D.I. 71 at A44) Based on these observations, McGroerty called 911 from his cellular phone. (D.I. 71 at A44) After calling 911, McGroerty went to the start/finish area and sought assistance. (D.I. 71 at A42 and A87) He led two people back to where McDonough was found and they administered CPR until an ambulance arrived. (D.I. 71 at A42 and A87-A88) According to Dowd, one of the two people who administered CPR, no one gave McDonough any water before the ambulance arrived because no water was provided. (D.I. 71 at A88) Blaker, however, testified that when McDonough’s bike was brought back from where McDonough had been found, it still had a water bottle attached to it that was half full. (D.I. 71 at A65)

Dowd stated that the race was “generally disorganized” and that there was a lot of confusion. (D.I. 71 at A86) According to Dowd, the race was delayed for 30 minutes and no maps of the course were given to the participants or posted. (D.I. 71 at A87-A88) Small, the NORBA official on duty at the race, [*11] reported to NORBA that the “race director [Bowen] was ‘light’ in the emergency medical area.” (D.I. 84 at A110) Small also reported that no course maps were available, but that the course was adequately marked. (D.I. 84 at A110) Overall, Small stated that mistakes were made since no water was provided, no emergency medical personnel were on site, and the course was too long. (D.I. 84 at A114)

Dowd stated that it took her about 5 minutes to reach McDonough and that the ambulance arrived 10 to 15 minutes after she began administering CPR. (D.I. 71 at A88) When the ambulance arrived, McDonough was treated by paramedics and helicoptered to the Medical Center of Delaware in Christiana, Delaware. (D.I. 71 at A23) Although hospitalized, McDonough died of heat stroke on August 30, 1993. (D.I. 70 at 1)

III. DISCUSSION

1. Summary Judgment Standard

[HN1] Summary judgment should be granted only if a court concludes that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). [HN2] The moving party bears the burden of proving that no genuine issue of material fact is in dispute. Matsushita Elec. Indus. [*12] Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Once the moving party has carried its initial burden, the nonmoving party “must come forward with ‘specific facts showing that there is a genuine issue for trial.’” Id. at 587. “Facts that could alter the outcome are ‘material,’ and disputes are ‘genuine’ if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct.” Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n.1 (3d Cir. 1995) (citations omitted). If the nonmoving party fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The mere existence of some evidence in support of the nonmoving party will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for the nonmoving party on that factual issue. Anderson v. Liberty Lobby, [*13] Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). This court, however, must “view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion.” Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995) (citation omitted).

2. Express or Primary Assumption of Risk

[HN3] Since Delaware adopted a comparative negligence statute, 1 it has become necessary to distinguish between primary and secondary assumption of the risk. Koutoufaris v. Dick, 604 A.2d 390, 397 (Del. 1992); cf. Bib v. Merlonghi, 252 A.2d 548, 550 (Del. 1969) Primary assumption, sometimes referred to as express assumption of risk, “involves the express consent to relieve the defendant of any obligation of care while secondary assumption [of risk] consists of voluntarily encountering a known unreasonable risk which is out of proportion to the advantage gained.” Koutoufaris, 604 A.2d at 397-398. With the adoption of the comparative negligence statute in Delaware, secondary assumption of risk became “totally subsumed within comparative negligence.” Id. at 398. Primary assumption of risk, however, still exists as [*14] a complete bar to recovery. See id. (stating that primary assumption of risk “might well constitute a complete bar to recover, as a matter of law, even in a comparative negligence jurisdiction”) (citation omitted); see also Patton v. Simone, 626 A.2d 844, 852 (Del. Super. Ct. 1992); see also Staats v. Lawrence, 576 A.2d 663, 668 (Del. Super. Ct. 1990).

1 In 1984, Delaware adopted a modified comparative negligence statute, which allows a jury to apportion liability where both parties are negligent only if the plaintiff’s negligence is less than fifty percent. 10 Del. C. § 8132 (1984).

Defendants argue that plaintiffs’ action is barred, as a matter of law, because McDonough expressly assumed the risks inherent in an off-road bicycle race when he signed the release. Defendants contend that the release, in plain and unambiguous language, is intended to protect defendants from all liability arising out of any hazards encountered in an off-road bike race. (D.I. 78 at 9) Defendants assert that McDonough, [*15] as a college graduate and former participant in a NORBA event, must have had an understanding of the these inherent dangers when he signed the release. As further support, defendants note that McDonough signed an identical Agreement and Release just one week prior to the C & D race. Based on these facts, defendants assert that summary judgment is appropriate.

In considering the facts and making all reasonable inferences in plaintiffs’ favor, the court finds to the contrary. [HN4] A release will not be set aside if the language is clear and unambiguous. Hallman v. Dover Downs, Inc., 1986 U.S. Dist. LEXIS 15708, Civ. A. No. 85-618 CMW, 1986 WL 535 at *2 (D. Del., Dec. 31, 1986) (citing Chakov v. Outboard Marine Corp., 429 A.2d 984, 985 (Del. 1981); see Bennett v. United States Cycling Federation, 193 Cal. App. 3d 1485, 239 Cal. Rptr. 55, 58 (Cal. Ct. App. 1987). [HN5] Where the language of a release is ambiguous, it must be construed strongly against the party who drafted it. Hallman, 1986 WL 535 at *2; Bennett, 239 Cal. Rptr. at 58. [HN6] In an express agreement to assume a risk, a plaintiff may undertake to assume all risks of a particular relation or situation, whether they are known or unknown to him. [*16] Restatement (Second) of Torts, § 496D, cmt. a, (1965). However, for the release to be effective, it must appear that the plaintiff understood the terms of the agreement, or that a reasonable person in his position would have understood the terms. Bennett, 239 Cal. Rptr. at 58. As the Bennett court stated, “there is little doubt that a subscriber of a bicycle release . . . must be held to have waived any hazards relating to bicycle racing that are obvious or that might reasonably have been foreseen.” Id. These hazards include “collisions with other riders, negligently maintained equipment, bicycles which were unfit for racing but nevertheless passed by organizers, [and] bad road surfaces . . . .” Id. Thus, the understanding of the parties when the release was executed, in light of all the facts and circumstances, is paramount in determining whether the language is clear and unambiguous. Hallman, 1986 WL 535 at *2. The evidence must establish that the parties intended the release to apply to the particular conduct of the defendant which has caused the harm. Restatement (Second) of Torts, § 496B, cmt. d, (1965).

In the present case, plaintiffs assert that [*17] a genuine issue of material fact exists as to whether McDonough understood that the release included a waiver against the hazards created by defendants’ alleged negligent and reckless conduct in promoting the race. The court agrees.

IV. CONCLUSION

For the reasons stated above, the court shall deny defendants’ motion for summary judgment. An order will issue consistent with this memorandum opinion.

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Sanny, v. Trek Bicycle Corporation, 2013 U.S. Dist. LEXIS 65559

Sanny, v. Trek Bicycle Corporation, 2013 U.S. Dist. LEXIS 65559

John Sanny and Diana Sanny, Plaintiffs, v. Trek Bicycle Corporation, Defendant.

Civil No. 11-2936 ADM/SER

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

2013 U.S. Dist. LEXIS 65559

May 8, 2013, Decided

May 8, 2013, Filed

CORE TERMS: bicycle, retention, wheel, secondary, deposition, unreasonably dangerous, sheet, manufacturer, errata, post-sale, front wheel, detachment, summary judgment, question of fact, duty to warn, equipped, warning, failure to warn, notice, skewer, design defect, alternative design, engineering, corrections, feasible, deponent, warn, fork, dropout, tip

COUNSEL: [*1] Terry L. Wade, Esq., Vincent J. Moccio, Esq., and Brandon E. Vaughn, Esq., Robins, Kaplan, Miller & Ciresi, LLP, Minneapolis, MN, on behalf of Plaintiffs.

Stephen J. Foley, Esq., Michael W. Haag, Esq., and Steven J. Erffmeyer, Esq., Foley & Mansfield, PLLP, Minneapolis, MN, on behalf of Defendant.

JUDGES: ANN D. MONTGOMERY, U.S. DISTRICT JUDGE.

OPINION BY: ANN D. MONTGOMERY

OPINION

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiffs John and Diana Sanny assert claims of design defect, failure to warn, and failure to provide post-sale warnings against Defendant Trek Bicycle Corporation’s (“Trek”). 1 On March 22, 2013, the undersigned United States District Judge heard oral argument on Trek’s Motion for Summary Judgment [Docket No. 77], Motion to Exclude Testimony of Plaintiffs’ Expert Witness David Hallman [Docket No. 76] (“Motion to Exclude”), and Motion to Strike Changes to Deposition of Plaintiffs’ Expert David Hallman [Docket No. 70] (“Motion to Strike”). For the reasons stated herein, Trek’s Motion for Summary Judgment is granted in part, its Motion to Strike is granted, and its Motion to Exclude is granted in part.

1 Plaintiffs withdrew their claims for negligent failure to recall and negligent failure to advise [*2] the Consumer Product Safety Commission of a product hazard, conceding Minnesota law does not recognize these claims. Pls.’ Mem. Opp. Summ. J. [Docket No. 95] (“Pls.’ Opp.”) 48-49.

II. BACKGROUND

A. Sanny’s Accident

At the time of his accident in 2009, John Sanny (“Sanny”) taught tennis and other classes at the University of Minnesota’s Minneapolis campus. Vaughn Aff. [Docket No. 96] Ex. UU (“Sanny Dep.”), at 18, 33-34. In 1993, Sanny purchased a used Model 930 Single Track bicycle, manufactured by Trek in 1990. The bicycle had a quick release mechanism, which allowed Sanny to quickly remove and replace the front wheel. About every 2-4 weeks, Sanny commuted to Cooke Hall, where he had an office, by driving to campus, parking in a nearby surface lot, and then riding his bicycle the remainder of the trip. Id. at 14-15. To fit his bicycle inside his car, Sanny routinely removed the bicycle’s front wheel. Id.

On September 10, 2009, Sanny arrived at the campus parking lot in the morning, about one hour before his class. Id. at 30. Sanny removed his bicycle from his car and attached the front wheel. Id. at 15-18. He then rode his bicycle about two-and-a-half blocks to Cooke Hall and entered the [*3] building before realizing he had left his keys in his car. Id. at 21, 30-31. Sanny returned to his bicycle and headed back to the parking lot to retrieve his keys. Id. at 30-31. As he approached the parking lot, he “bunny-hopped” a curb to cross the street. Id. at 24-25, 31; Haag Aff. [Docket No. 85] Ex. 2 (Map of accident site). The front wheel of his bicycle came loose and caught on the front brakes, causing the bicycle to come to a sudden stop. Vaughn Aff. Ex. VV (“Hallman Report”), at 2. Sanny was thrown face-forward off of his bicycle. See id. The first campus police officer to respond found Sanny on the pavement, bleeding and suffering from serious head and facial injuries. Vaughn Aff. Ex. A (“Welsh Dep.”), at 45-46.

On or about September 19, 2011, Plaintiffs filed suit against Trek. Plaintiffs allege Trek negligently failed to incorporate a “secondary retention system” into the design of Sanny’s bicycle, which would have acted as a safety mechanism when Sanny’s wheel detached. Compl. 2. Plaintiffs also allege Trek failed to warn Sanny of the risk of front wheel detachment in bicycles without secondary retention devices. Id. Finally, Plaintiffs argue they have stated a third claim [*4] alleging Trek’s post-sale failure to warn Sanny. Trek argues Plaintiffs did not sufficiently plead this claim.

B. Quick Release Device

A quick release mechanism, like the one used in Sanny’s bicycle, involves three major components: a bicycle fork designed for quick release use, a front wheel designed for the same, and the quick release device itself. In a bicycle equipped for a quick release tire, the front “fork blades”–the arms of the bicycle which hold the wheel–each end in an open, u-shaped “dropout.” The front wheel has a hollow axle, meaning the axle has a narrow, cylindrical hollow space running its length. The quick release device is a skewer that has an adjustable nut on one end and a lever on the other.

To connect the wheel to the bicycle, the quick release skewer is placed through the hollow of the front wheel’s axle, so that it protrudes on either end by a small amount. The wheel is then placed between the fork blades, so that the dropouts fit on to the skewer, on either side of the wheel axle. To secure the wheel to the bicycle, the rider tightens the nut on one end of the quick release device and presses the lever inward 90 degrees (relative to the skewer) on the other [*5] end. The lever, acting as a cam, tightens the skewer so that the quick release device is pushing in on each dropout from the outside. This pressure ensures the wheel does not detach during riding; the wheel is essentially “pinched” in place.

The alleged danger with quick release wheels is the risk that the quick release nut and/or lever become loose or completely undone during a ride. Because friction is the primary force keeping the wheel attached to the bicycle, a loss of “grip” by the quick release device means the dropouts are simply resting on top of the quick release skewer. If the rider of the bicycle in this situation lifts the front of his bicycle off of the ground, makes a sharp turn, or takes a similar action, the rider risks lifting the dropouts off of the axle and detaching the front wheel in mid-ride. In the present case, Plaintiffs and Trek agree that Sanny’s action in “hopping” over a curb to cross the street caused the front fork of his bicycle to lift off of and thus detach from his front wheel.

III. DISCUSSION

A. Motion for Summary Judgment

1. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure states a court shall grant summary judgment if no [*6] genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. On a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). If evidence sufficient to permit a reasonable jury to return a verdict in favor of the nonmoving party has been presented, summary judgment is inappropriate. Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995) (citations omitted). However, “the mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment. . . . Instead, ‘the dispute must be outcome determinative under prevailing law.’” Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992) (citations omitted).

2. Design Defect

To establish a design defect claim under Minnesota law, a plaintiff must present specific facts establishing three elements: (1) the product was in a defective condition, unreasonably dangerous for its intended use; (2) the defect existed when the product left the manufacturer’s control; and (3) the defect proximately caused the plaintiff’s injury. Westbrock v. Marshalltown Mfg. Co., 473 N.W.2d 352, 356 (Minn. Ct. App. 1991) [*7] (citing Bilotta v. Kelley Co., Inc., 346 N.W.2d 616, 624 (Minn. 1984)). Whether a product is defective is usually a question of fact; “only when reasonable minds cannot differ does the question become one of law.” Thompson v. Hirano Tecseed Co., Ltd., 456 F.3d 805, 809 (8th Cir. 2006).

For both negligence and strict liability claims, Minnesota courts use a “reasonable care” balancing test to determine whether a product is defective. Thompson, 456 F.3d at 809. Under this balancing test, a product is unreasonably dangerous, and thus defective, if the manufacturer:

fails to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended, as well as an unintended yet reasonably foreseeable use.

What constitutes “reasonable care” will, of course, vary with the surrounding circumstances and will involve a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm.

Mozes v. Medtronic, Inc., 14 F. Supp. 2d 1124, 1127 (D. Minn. 1998) (citing Bilotta, 346 N.W.2d at 621).

The [*8] parties dispute whether Sanny’s bicycle was unreasonably dangerous because it had no secondary retention device. Viewed as a whole, the evidence submitted by the parties would allow reasonable minds to disagree regarding whether Trek used reasonable care in choosing not to include a secondary retention device in the design of Sanny’s bicycle. Each category of evidence presented by the parties is discussed below.

a. Feasible alterative design

While not a prima facie element of a design defect claim, an important factor in determining whether a product is unreasonably dangerous is the availability of a feasible, safer alternative design. Kallio v. Ford Motor Co., 407 N.W.2d 92, 96-97 (Minn. 1987); Young v. Pollock Eng’g Group, Inc., 428 F.3d 786, 789 (8th Cir. 2005). If, at the time the manufacturer designed the product at issue, a safer, feasible design existed, it weighs in favor of finding the contested design unreasonably dangerous. Implicit in this evaluation, however, is the balance between utility and safety. If the alternative design increases safety at the cost of performance or utility, it may warrant the conclusion that the alternative design is not feasible. See, e.g., Unrein v. Timesavers, Inc., 394 F.3d 1008, 1012 (8th Cir. 2005) [*9] (holding expert must demonstrate proposed safety modifications do not “interfere with the machine’s utility”); Sobolik v. Briggs & Stratton Power Prods. Group, LLC, No. 09-1785, 2011 U.S. Dist. LEXIS 33911, 2011 WL 1258503, at *4-5 (D. Minn. Mar. 30, 2011) (finding plaintiff had submitted sufficient evidence to create question of fact on issue of safety, despite defendants’ arguments that proposed design would harm utility).

Here, the parties agree several feasible, alternative designs exist which incorporate secondary retention devices. In bicycle design terms, “secondary retention device,” or “positive retention device,” refers to any kind of mechanism that acts as a failsafe in the event a quick release wheel loosens or detaches from a bicycle’s dropouts. One of the most common secondary retention devices found in bicycles are “tabbed tips” or “tab tips.” Normally, the dropouts to which the quick release skewer attaches are completely smooth. On a bicycle with tab tips, the dropouts are not flat but have extended, outward-curving edges. With this design, if a quick release nut and handle are not fully tightened, they may still “sit” in these tab tips and keep the wheel in place even if the front of the bicycle [*10] lifts off of the ground. In other words, tab tips act as a kind of safety railing to hold a quick release wheel that is no longer firmly attached. Another type of secondary retention device is the “peg and eyelet” device, which essentially adds two washers to either side of the quick release skewer; the washers are then attached to the bicycle fork blades using pegs or hooks that connect to holes punched into the washers.

Although Trek agrees that several feasible alternative designs exist, it disputes whether any of these designs–namely, whether any secondary retention device–actually increases bicycle safety. As discussed below, whether a secondary retention device would have increased the safety of Sanny’s bicycle is a key question of fact that a jury must resolve.

b. Trek’s record of wheel separation claims

Until his death in 1995, Robert Read served as Trek’s Director of Engineering and as the primary person tracking and evaluating the safety of Trek’s quick release bicycles. Read investigated all wheel separation claims from 1985 until 1995, and kept a record of reported claims. Haag Aff. Ex. O. In 1990, Read made the decision that Trek would incorporate secondary retention devices [*11] in all of its quick release bicycles, and Trek initially used both peg and eyelet, and tab tip designs. Id.; see also Vaughn Aff. Ex. P., at 4. By 1991, every new Trek bicycle had a secondary retention device of some kind. Vaughn Aff. Ex. P., at 4. Sanny’s bicycle, manufactured in 1990, was among the last of the bicycles manufactured by Trek without a secondary retention device.

Plaintiffs argue that Trek’s own use of tab tips, and peg and eyelet devices demonstrate the safety benefit that results from secondary retention devices. Since 1985, Trek has recorded 58 claims of wheel separation. See Vaughn Aff. Ex. X (Trek’s wheel separation claims list). A simple review of these claims indicate that the majority of wheel separations were reported from 1985 until the early 1990′s, after which the number of incidents reported per year began to decrease. See id. Plaintiffs argue that the year-over-year decrease in wheel separation incidents was the result of Trek’s decision to incorporate secondary retention devices in its bicycles starting in 1990. The correlation between decreased incident reports and use of secondary retention devices, according to Plaintiffs, is evidence that the feasible [*12] alternative designs increase the safety of Trek bicycles.

Trek disputes the necessity of secondary retention devices. Trek argues that although it has received claims of wheel separation in quick release bicycles, the number of reported incidents is extremely low compared to the total number of Trek bicycles sold. In particular, Trek argues that it was only aware of nine instances of wheel separation by 1990. See Haag Aff. Ex. Y (“Read Dep.”), at 152-53. 2 By that time, Trek had sold over a million bicycles, resulting in a wheel separation rate of about 0.0009%. See id. at 80. Trek also argues that four of these nine recorded incidents involved bicycles equipped with peg and eyelet style retention devices. As a result, Trek, through Read, decided bicycles without secondary retention devices had substantially the same level of safety as bicycles equipped with secondary retention devices. Id. at 82-84. Trek claims that it nevertheless adopted secondary retention devices to avoid litigation.

2 Although Read testified that Trek was only aware of nine claims of wheel separation by January 1990, Trek’s documents reflect 11 claims. Vaughn Aff. Ex. X. The reason for the discrepancy is unclear.

Trek [*13] also disputes Plaintiffs’ interpretation of the larger number of wheel separation claims. At oral argument, Trek stated that of the 58 total claims of wheel separation it recorded, about 32 of the bicycles involved had secondary retention devices, further demonstrating these devices’ failure to increase safety. By way of explanation, Trek notes that secondary retention devices are cumbersome, and increase the risk of user error in properly securing a quick release wheel. Trek argues that the decrease in wheel separation claims in the 1990′s did not result from any design change; on the contrary, Trek argues the decrease resulted from Trek’s campaign to educate riders on the proper use of quick release devices. Plaintiffs respond that although some wheel detachments may have occurred in bicycles designed to hold secondary retention devices, many of the 32 bicycles in question were not actually equipped with such devices at the time of the accidents. Plaintiffs also complain that Trek destroyed most of its files associated with older wheel separation claims, preventing Plaintiffs from further investigating the particular circumstances of each claim. See Pls.’ Opp. 37.

As an initial matter, [*14] it is necessary to address whether evidence of other wheel separation claims will be admissible at trial, as only facts based on admissible evidence may be considered at the summary judgment stage. See JRT, Inc. v. TCBY Sys., Inc., 52 F.3d 734, 737 (8th Cir. 1995). In the area of product liability litigation, evidence of similar injuries or incidents “may be relevant to prove a product’s lack of safety or a party’s notice of defects.” J.B. Hunt Transport, Inc. v. Gen. Motors Corp., 243 F.3d 441, 444 (8th Cir. 2001). Similar incident evidence also risks raising “extraneous controversial issues,” confusing the issues, and being more prejudicial than probative. Id. (citation omitted). As a result, the offering party has the burden of demonstrating that the past incidents are substantially similar to the incident at issue. Id. at 445. Ultimately, the admission of such evidence is in the trial court’s discretion. Arabian Agric. Servs. Co. v. Chief Indus., Inc., 309 F.3d 479, 485 (8th Cir. 2002); Hammes v. Yamaha Motor Corp. U.S.A., Inc., No. 03-6456, 2006 U.S. Dist. LEXIS 26526, 2006 WL 1195907, at *12, n.2 (D. Minn. May 4, 2006).

Here, Trek’s prior wheel separation incidents bear relevant similarities to Sanny’s accident. [*15] Every prior incident involved a bicycle with a quick release device, and it is logical to assume the bicycle wheel detached during foreseeable use. See, e.g., Schaffner v. Chicago & N.W. Transp. Co., 129 Ill. 2d 1, 541 N.E.2d 643, 660, 133 Ill. Dec. 432 (Ill. 1989) (reaching same conclusion in similar circumstances). Whether the wheel detached due to user error is immaterial, as Trek concedes user error of the quick release device is a foreseeable cause of injury. Def.’s Mem. Supp. Summ. J. [Docket No. 81] (“Def.’s Mem.”) 15. In this case, the parties agree that wheel separation incidents may be grouped together to demonstrate comparative safety and overall incident trends. See, e.g., id. at 14. In addition, the offered evidence is summary in nature and thus avoids the risk of unfair prejudicial effect. As a result, the evidence of Trek’s past wheel separation incidents is likely to be admitted in some form at trial.

Arguing against this conclusion, Trek cites Magistrate Judge Rau’s holding that Plaintiffs failed to demonstrate how Sanny’s injuries compare to the majority of injuries suffered in other wheel detachment accidents. See Order, Jan. 2, 2013 [Docket No. 69] 8. Before Judge Rau, Plaintiffs argued for the appropriateness [*16] of punitive damages in part by describing several specific examples of injuries suffered by Trek bicycle riders. Judge Rau properly held that Plaintiffs had failed to demonstrate that injuries as serious as Sanny’s had occurred in the majority of wheel detachment claims. Id. As a result, Judge Rau held Plaintiffs had not demonstrated injuries rising to the level of seriousness required by Minnesota’s punitive damages statute. Id. Here, the evidence at issue is not of past injuries, but of the wheel detachments themselves. As discussed above, this more limited evidence is probative of the design’s safety and Trek’s notice of prior accidents. See, e.g., Broun, Kenneth, McCormick on Evidence § 200 (7th ed. 2013) (when evidence of other accidents used to show manufacturer’s notice, similarity to accident at issue “can be considerably less” than for other purposes). As such, evidence of past wheel separation claims may be relevant at trial for a purpose other than that argued in the punitive damages context.

The admissible evidence of Trek’s prior wheel separation claims supports a finding that genuine issues of material fact exist. Among other things, evidence of prior accidents may demonstrate: [*17] (1) a design defect; or (2) the manufacturer’s knowledge that prior accidents had occurred. See Lovett v. Union Pac. R. Co., 201 F.3d 1074, 1081 (8th Cir. 2000). Regarding the former purpose, evidence of similar accidents may indicate that the product at issue is unsafe and thus defective. See id. Even accidents occurring after the accident in question may be probative of safety. 4 See Indep. Sch. Dist. No. 181, Brainerd v. Celotex Corp., 309 Minn. 310, 244 N.W.2d 264, 266 (Minn. 1976); Steenson, Michael K., et al., 27 Minn. Practice Series § 12.9 (2012 ed.). Regarding the latter purpose, a manufacturer’s notice of other accidents addresses whether a manufacturer exercised sufficient care to eliminate any unreasonable risk of harm from foreseeable uses of its product at the time of design. See, e.g., Hammond v. Compaq Computer Corp., No. 06-1670, 2009 U.S. Dist. LEXIS 90245, 2009 WL 3164797, at *4-5 (D. Minn. Sept. 29, 2009) (potential foreseeability of harm addressed in part whether manufacturer used reasonable degree of care in design).

4 In this case, evidence of accidents occurring after Sanny’s injuries may be relevant because, as Trek concedes, bicycles have a long useful life. As a result, bicycles manufactured at the same [*18] time as or before Sanny’s bicycle may have had wheel detachments after Sanny’s accident.

Trek’s history of wheel separation claims creates a question of fact regarding whether Trek exercised reasonable care in its failure to include a secondary retention device in its 1990 design of the bicycle Sanny later purchased. First, the parties dispute the significance of what these prior incidents demonstrate concerning the effectiveness of secondary retention devices. Plaintiffs argue Trek’s wheel separation claims decreased in the early 1990′s because of Trek’s use of secondary retention devices; Trek argues proper education in the use of quick release devices increased safety despite the presence of secondary retention devices. The parties’ differing but reasonable views of the same evidence demonstrates a question of fact. See, e.g., Riedl v. Gen. Am. Life Ins. Co., 248 F. 3d 753, 756 (8th Cir. 2001) (citation omitted). Second, the pre-1991 incidents of wheel separation are evidence that Trek had some notice of the risks associated with quick release devices, which creates a question of fact regarding the reasonableness of its decision to forgo secondary retention devices until 1990-91.

In [*19] addition, the parties’ disagreement over the specifics of the wheel separation evidence itself also precludes summary judgment. The parties simply disagree about how many of the pre-1991 wheel separations involved bicycles that had actually been equipped with secondary retention devices. Neither party has provided any evidence that conclusively resolves the discrepancy; instead, the parties rely on the contradictory recollections of deponents. See Read Dep. 152-53; Vaughn Aff. Ex. QQ (“Bretting Dep.”) 81-91. Further, Trek has no evidence showing that any of the bicycles involved in the recorded wheel detachments were actually equipped with secondary retention devices at the time of detachment. 5 A direct, factual conflict over Trek’s wheel separation data exists, and at summary judgment this conflict must be resolved in favor of Plaintiffs.

5 Trek also argues Plaintiffs have failed to present statistical evidence, such as through a study using epidemiological methods, that secondary retention devices have resulted in statistically significant increases in safety. However, such an analysis is not necessary to establish a question of fact in a design defect case. See, e.g., Sobolik, 2011 U.S. Dist. LEXIS 33911, 2011 WL 1258503, at *3 [*20] (holding even a single prior accident could establish question of fact); see also Hammond, 2009 U.S. Dist. LEXIS 90245, 2009 WL 3164797, at *4 (finding question of fact although product had been manufactured 1.5 million times and used without incident).

c. Industry standards

i. Industry publications

Industry standards at the time the manufacturer chose the design at issue is one factor in determining the manufacturer’s exercise of reasonable care. See, e.g., Buchanna v. Diehl Mach, Inc., 98 F.3d 366, 371 (8th Cir. 1996) (interpreting comparable Arkansas law and holding evidence of compliance with industry standards not conclusive proof of safety, but rather “competing evidence from which to choose”). Plaintiffs submit excerpts from patents, publications, books, and other materials indicating bicycle manufacturers and consumers had discussed the safety of quick release devices well before 1990. See, e.g., Vaughn Aff. Ex. J (excerpt from 1984 edition of American Bicyclist and Motorcyclist magazine noting availability of secondary retention devices). Trek does not dispute the veracity of these documents, nor does it offer any reason why Plaintiffs’ submitted evidence on this topic should be disregarded. Thus, this evidence [*21] further establishes a genuine question of material fact, as it suggests Trek knew or should have known that others in the bicycle industry had acknowledged the risk of harm resulting from quick release wheel separation, and that other manufacturers had already begun implementing secondary retention devices.

ii. Schwinn Bicycles

Plaintiffs also cite the actions of Schwinn Bicycles (“Schwinn”), another bicycle manufacturer, as evidence of the industry standard. In particular, Plaintiffs describe the development of the “Brilando clip” by Frank Brilando, a retired Schwinn employee. Testifying in a deposition for previous product liability litigation against Trek, Brilando stated that in the late 1960′s and early 1970′s Schwinn became concerned about the number of occurrences of quick release wheel separations. Vaughn Aff. Ex. D (“Brilando Dep.”), at 25-27 (testimony from Thurston v. Trek Bicycle Corp., No. PI-96-013351 (Hennepin Dist. Ct. 1998)). As a result, Schwinn halted sales of a particular bicycle model that used a quick release device. Id. at 88-89. Brilando then designed and patented the “Brilando clip,” two of which affix to the quick release skewer. When attaching a quick release [*22] wheel, the rider then manually clips the other ends of the Brilando clips to specially-mounted pegs extruding from the fork blades. Id. at 37-40.

Plaintiffs argue Brilando’s testimony demonstrates the safety conferred by secondary retention devices in general. Schwinn began incorporating Brilando clips into its quick release designs in 1976. From 1968 to 1985, Schwinn received 131 reports of wheel detachments in quick release bicycles without secondary retention devices. Vaughn Aff. Ex. E (Schaffner Stipulation). To Brilando’s knowledge, Schwinn did not receive a single report of wheel detachment in bicycles equipped with these secondary retention devices from 1976 to 1992, when Brilando retired. Id. at 55-56. From this evidence, Plaintiffs argue a jury could reasonably conclude secondary retention devices feasibly increase the safety of quick release bicycles.

Trek responds that Brilando’s testimony is both hearsay and irrelevant. In terms of admissibility, Trek argues Brilando’s deposition transcript is hearsay, and that Plaintiffs never noticed Brilando as an expert witness or submitted an expert report by him. Even if his testimony was admissible, Trek argues neither Brilando nor [*23] Schwinn considered quick release bicycles without secondary retention devices to be defective in the early 1990′s. See Schaffner v. Chicago & N.W. Transp. Co., 161 Ill. App. 3d 742, 515 N.E.2d 298, 113 Ill. Dec. 489 (Ill. Ct. App. 1987) (affirming jury verdict that a 1973 Schwinn bicycle was not unreasonably dangerous because it lacked secondary retention device), aff’d, 129 Ill. 2d 1, 541 N.E.2d 643, 133 Ill. Dec. 432; Brilando Dep. 149-50.

Based on the current record, at least some of Brilando’s deposition testimony from Thurston is likely to be admissible at trial. Plaintiffs’ counsel submitted an affidavit stating Brilando was unavailable as a witness in this case due to his age, physical condition, and deteriorating memory. Vaughn Aff. ¶ 4. Also, Brilando’s prior deposition was taken in a product liability lawsuit against Trek, in which Trek’s previous counsel had the “opportunity and similar motive to develop [the testimony] by direct, cross-, or redirect examination.” Fed. R. Evid. 804(b)(1)(B). As a result, Brilando’s testimony appears to qualify for an exception to the rule against hearsay. However, Trek is correct that Plaintiffs did not disclose Brilando as an expert witness. As a result, Brilando’s opinions are inadmissible; only his factual knowledge [*24] of Schwinn’s bicycle designs and safety record will be received in evidence.

Brilando’s testimony is an additional factor leading to the conclusion that there is a genuine question of fact for jury consideration. Brilando testified that Schwinn received zero claims of quick release wheel separations in bicycles equipped with the Brilando clips, which may lead a jury to conclude Schwinn’s secondary retention device increased the safety of quick release bicycles. Also, although Brilando’s knowledge was limited in some respects, his testimony is some evidence of the bicycle industry standards at the time Trek chose the design for Sanny’s bicycle.

iii. CPSC rules and ASTM standards

The parties argue at length regarding the significance of rules promulgated by the Consumer Product Safety Commission (CPSC) for bicycle safety. The CPSC is tasked with protecting the public against injury resulting from consumer products, and performs education, research, and rule-making functions. The history of how bicycle safety came under the CPSC’s purview is stated in Forester v. Consumer Prod. Safety Comm’n, 559 F.2d 774, 182 U.S. App. D.C. 153 (D.C. Cir. 1977), and a detailed summary is not necessary here. Of relevance, however, [*25] is the CPSC’s decision in 1978 to promulgate a rule addressing bicycle wheel hubs. See 16 C.F.R. § 1512.12. In § 1512.12, the CPSC required front wheel hubs to have positive retention devices but specifically exempted quick release bicycles. Id. § 1512.12(c).

The parties offer very different views of how the CPSC’s position on quick release bicycles evolved. Plaintiffs argue that bicycle manufacturers had previously only marketed quick release devices to bicycle racers, and that Schwinn, leading the industry, had only just begun marketing quick release devices to casual riders by 1978. Plaintiffs cite evidence that by 2004, the CPSC had begun urging ASTM International (formerly known as the American Society for Testing and Materials), an organization that adopts voluntary manufacturing standards, to take the position that all quick release devices should have secondary retention devices. See, e.g., Vaughn Aff. Ex. M. Trek responds that ASTM standards are entirely voluntary and that if the CPSC had truly determined quick release devices to be unsafe, the agency would have taken regulatory action. In addition, Trek cites a CPSC bicycle safety study from 1994 in which the agency concluded [*26] no revisions to its bicycle regulations were required. Haag Aff. Ex. N.

The evidence offered by the parties regarding the CPSC is of limited value. Although Plaintiffs credibly argue the CPSC had begun advocating for voluntary standards adopting the use of secondary retention devices, all of the cited evidence dates from 2004 or later: well after Trek designed Sanny’s bicycle. Conversely, Trek’s cited study from 1994 does reflect the CPSC’s determination that it did not need to revise its safety standards; however, the CPSC’s report did not specifically address quick release devices or secondary retention devices. Plaintiffs’ evidence also indicates that the CPSC may have chosen to pursue non-regulatory safety standards for quick release devices, and that bicycle companies had failed to report wheel detachments to the CPSC. In short, much of the CPSC evidence does not reflect industry standards in 1990; to the extent any of the evidence is relevant, it is conflicting and further raises questions of fact.

d. Summary

Ultimately, reasonable minds could disagree as to whether Trek used reasonable care in evaluating the balance between safety and utility at the time of the manufacture of Sanny’s [*27] bicycle. As Trek concedes, bicycle accidents often result in serious injury, and occasionally in death. Def.’s Mem. 5-7. However, Trek argues that the wheel detachment rate is so small that although serious injury or death is possible, the design at issue cannot be unreasonably dangerous, even if several feasible alternative designs exist. In 1990, Trek considered much of the same evidence now before the Court and decided to forgo secondary retention devices. In Trek’s view, these retention devices did not tangibly increase safety and also decreased the utility of the quick release device. Weighing the reasonableness of that decision, and the risk of harm against its seriousness, is a question of fact best decided by a jury. See Thompson, 456 F.3d at 809.

3. Failure to Warn

In addition to their design defect claim, Plaintiffs allege Trek failed to properly warn Sanny about the danger of riding a quick release bicycle not equipped with a secondary retention device. Under Minnesota law, a plaintiff claiming a failure to warn must show: “(1) the defendant[] had reason to know of the dangers of using the product; (2) the warnings fell short of those reasonably required, breaching the duty [*28] of care; and (3) the lack of an adequate warning caused plaintiff’s injuries.” Tuttle v. Lorillard Tobacco Co., 377 F.3d 917, 924 (8th Cir. 2004) (quotation omitted). To establish causation, a plaintiff must demonstrate that a warning would have caused him or her to act in a way that would have avoided the injury. See Ramstad v. Lear Siegler Diversified Holdings Corp., 836 F. Supp. 1511, 1516 (D. Minn. 1993).

Plaintiffs claim must fail for two reasons. First, Plaintiffs allege Trek failed to warn Sanny that his bicycle lacked a secondary retention device. However, a product warning need only warn about the inherent dangers and proper use of the product; there is no requirement that a product warning instruct the user as to other possible designs or products. See Glorvigen v. Cirrus Design Corp., 816 N.W.2d 572, 582 (Minn. 2012).

Second, Plaintiffs cannot establish the element of causation. Sanny testified he had owned quick release bicycles since the late 1970′s and had at least a passing familiarity with quick release devices since that time. Sanny Dep. at 11-15. Sanny had owned this Trek bicycle for about 16 years before his accident. See id. at 14. During the year before his accident, [*29] Sanny testified he installed and removed his quick release wheel every 2 to 4 weeks and agreed that he was “perfectly competent” to do so. Id. at 14-15. In addition, Sanny also testified he knew he could crash if he did not properly secure his quick release device. 6 Sanny Dep. 46-51. Although causation is usually a question of fact, Sanny’s own testimony precludes Plaintiffs’ failure to warn claim in this case. Plaintiffs cannot show how warning Sanny as to the potential dangers and proper use of a quick release device would have caused him to act differently, because Sanny admits he already possessed all of the information that would be included in a legally adequate warning. See Ramstad, 836 F. Supp. at 1516.

6 At his deposition, Sanny initially disputed knowing how sudden the accident resulting from a wheel detachment could be, testifying, “I don’t think anybody has an idea they’re going to go crashing to the ground.” Sanny Dep. 48. Trek’s counsel then asked: “So you think you needed someone to tell you beforehand that if the front wheel became detached from the fork that you should have been warned there could be a catastrophic – you could fall off the bike?” Sanny answered, “No, [*30] sir.” Trek’s counsel confirmed, “You knew that?” Sanny responded, “Yes.” Id. at 48-49.

4. Post-Sale Failure to Warn

Plaintiffs also allege Trek had a duty to contact Sanny after his purchase of the bicycle to warn him about the risks of using a quick release device without a secondary retention mechanism. Minnesota has recognized a manufacturer’s post-sale duty to warn “only in special cases.” Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 833 (Minn. 1988). No specific test for establishing a post-sale duty to warn exists, but Hodder noted several factors warranting the recognition of a duty in that case, including:

(1) the defendant’s knowledge of problems with the product since the late 1950′s, including the knowledge that the product might explode with little provocation; (2) the hidden nature of the danger; (3) the fact that when explosions did occur, serious injury or death usually resulted; (4) defendant remained in that line of business, continued to sell parts for use with the product and had advertised the product within five years of the plaintiff’s injury; and (5) defendant had undertaken a duty to warn of product dangers.

Ramstad, 836 F. Supp. at 1517 (analyzing Hodder). [*31] Several decisions have indicated that “continued service, communication with purchasers, or the assumption of the duty to update purchasers, is a necessary element” for a post-sale duty to warn. McDaniel v. Bieffe USA, Inc., 35 F. Supp. 2d 735, 741 (D. Minn. 1999) (collecting cases).

As an initial matter, Trek argues Plaintiffs have not properly pled a claim for post-sale failure to warn. Trek argues that nowhere in the Complaint did Plaintiffs allege sufficient facts to state a claim under the basic notice pleading standards of Rule 8 of the Federal Rules of Civil Procedure and the fair notice requirements of Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Plaintiff responds that the following allegations put Trek on notice of this claim:

The separation of the front wheel from the front fork of the subject Trek 930 Single Track bicycle and the resulting injuries to Plaintiff John Sanny were caused and contributed by the negligent conduct of Defendant. Said negligence includes, by way of example, but is not limited to, the following:

1. Negligent failure to incorporate a backup safety retention system into the design of the front wheel attaching mechanism to prevent the front wheel [*32] from detaching from the frame in the event the primary attaching mechanism came loose;

2. Negligent failure to advise customers of alternative designs employing such safety retention systems;

3. Negligent failure to advise consumers of the importance of such safety retention systems, and that unintentional misapplication of the primary attaching mechanisms was a known and recurring danger.

Compl. 2. In addition, Plaintiffs rely on a letter their counsel sent to Trek’s counsel before filing the Complaint, in which Plaintiffs cited Hodder and discussed post-sale failures to warn. Pls.’ Opp. 46.

Plaintiffs failed to state a claim for post-sale duty to warn in the Complaint. Under the pleading standards of Twombly and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), plaintiffs must state more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Plaintiffs have not even crossed this minimal threshold of stating a claim for post-sale duty to warn. Nothing in the above-quoted language would put Trek on notice that Plaintiffs had alleged a post-sale duty to warn claim, a claim that arises “only in special cases.” Plaintiffs did not allege [*33] Trek had a post-sale duty of any kind, nor did the Complaint even allude to Trek’s knowledge of a “hidden danger” or the existence of other Hodder factors. Although Plaintiffs explicitly discussed a post-sale duty to warn in their letter to Trek’s counsel, pre-litigation communications may not supplement legal pleadings. See, e.g., Garth v. White, No. 4:06-CV-1112 CAS, 2007 U.S. Dist. LEXIS 53062, 2007 WL 2128361, at *1 (E.D. Mo. July 23, 2007). Allowing such supplementation would defeat the purpose of pleading requirements, and allow plaintiffs to scatter hidden claims among their unfiled, unserved communications.

Even if Plaintiffs had stated a claim for a post-sale duty to warn, they have not demonstrated material questions of fact on that claim. Plaintiffs attempt to portray the potential risks associated with quick release devices as hidden by Trek from its own employees, making the risk more pernicious in nature and warranting a continuing duty to warn. But as Judge Rau observed, Plaintiffs’ own efforts to demonstrate the widely-known risks associated with quick release devices defeats this argument. Order, Jan. 2, 2013 at 6-7. In addition, Plaintiffs have not demonstrated whether Trek undertook a duty to [*34] warn consumers, or whether Trek engaged customers in ongoing relationships in a way that would give rise to a post-sale duty to warn. See McDaniel, 35 F. Supp. 2d at 741. Finally, while the potential for serious harm exists as a result of quick release devices, Plaintiffs have not demonstrated that serious harm “usually” results from use of such devices. Ramstad, 836 F. Supp. at 1517. Although no one factor is necessarily determinative under Hodder, Plaintiffs have not demonstrated the necessary “critical mass” to establish a post-sale duty to warn in this case.

B. Motion to Strike Errata Sheet

Trek’s second motion asks the Court to strike Plaintiffs’ expert David Hallman’s errata sheet from the record. Hallman is a materials/mechanical engineer with Crane Engineering, a company based in Plymouth, Minnesota. See Hallman Report. Hallman possesses degrees in mechanical engineering, and in materials science and engineering. He has also conducted limited research in the area of automobile accidents, and has attended conferences and seminars about vehicle accidents. Hallman has never professionally studied or worked on bicycles or bicycle design. Plaintiffs consulted Hallman for his opinions [*35] not only on the nature of Sanny’s accident, but also regarding Trek’s design choices and the safety of quick release devices.

Trek deposed Hallman on November 14, 2012. At the end of the deposition, neither Hallman nor Plaintiffs’ counsel requested the right to review and make corrections to Hallman’s testimony. Nevertheless, exactly 30 days later Hallman submitted an errata sheet indicating 57 edits to his deposition testimony. Many of his changes completely reverse or substantively amend Hallman’s original answers to Trek’s deposition questions. For example, Trek’s counsel asked Hallman about the kind of wheel hub Sanny’s bicycle had, and Hallman originally answered, “I don’t remember.” Haag Aff., Jan. 29, 2013 [Docket No. 73] Ex. Q (“Hallman Dep.”), at 50. On the errata sheet, Hallman changed this answer to “Sanny’s bicycle had a Sansin hub on the front wheel.” Id. at Ex. FF (“Errata Sheet”). In another instance, counsel asked Hallman if he knew of any engineering standards that might require a bicycle manufacturer to recall older designs, and Hallman answered, “No.” Hallman Dep. 104. On the errata sheet, Hallman changed this to: “Engineering standards, no. Engineering ethics (NSPE [*36] or ABET) would require it. An engineer’s primary responsibility is to protect the public. A recall would have done that.” Errata Sheet at 2. Several of Hallman’s edits actually include page and line citations to other depositions. Hallman did not provide any explanation for his changes.

Trek argues Hallman’s errata sheet not only fails to meet the technical requirements of the federal rules, it also abuses the purpose of the rules, making it impossible to fairly depose a witness. Plaintiffs respond that Hallman’s changes reflect clarifications or corrections consistent with Hallman’s reported opinions, and that some reflect information with which Hallman later became familiar.

The process for submitting an errata sheet is straightforward. Under Rule 30(e) of the Federal Rules of Civil Procedure allows a deponent or party, before the deposition is completed, to request the option to review the deposition transcript or recording and sign a statement listing changes “in form or substance” and “the reasons for making them.” Once the transcript or recording is available, the deponent or party making the request has 30 days to review and submit corrections. See Fed. R. Civ. P. 30(e).

Although [*37] the procedural requirements are clear, Courts have divided on the use of errata sheets to make changes beyond basic corrections. Several courts have followed the reasoning in Lugtig v. Thomas, 89 F.R.D. 639 (N.D. Ill. 1981), in which a deponent made 69 substantive changes to his deposition. The court held that the phrase “changes in form or substance” plainly allowed any changes, even when those changes contradicted original answers or were otherwise unconvincing. Id. at 641. However, the court required the original deposition testimony to remain a part of the record, and held opposing counsel could read the original deposition to the jury at trial. Id. The court also allowed opposing counsel to conduct an additional deposition if the errata sheet made the original deposition “incomplete or useless.” Id. at 642. These measures, the court held, would check abuse. Id.

Plaintiffs cite three decisions from this district to support its argument of allowing substantive changes. See ADT Sec. Servs., Inc. v. Swenson, No. 07-2983, 2010 U.S. Dist. LEXIS 3456, 2010 WL 276234, at *7-8 (D. Minn. Jan. 15, 2010), overruled on other grounds, 2010 U.S. Dist. LEXIS 74987, 2010 WL 2954545; Morse v. Walgreens Co., No. 10-2865, 2011 U.S. Dist. LEXIS 87709, 2011 WL 3468367, at *3 n.3 (D. Minn. Aug. 8, 2011); [*38] and Nw. Airlines, Inc. v. Am. Airlines, Inc., 870 F. Supp. 1504, 1508 (D. Minn. 1994). Although Hallman’s corrections far surpass the corrections made in these cases in terms of volume and substance, these decisions did indeed hold a deponent could substantially change one or more aspects of their deposition testimony.

Trek acknowledges a division among courts on the use of errata sheets, but argues that preventing depositions from becoming “take home examinations” is the better view. See Greenway v. Int’l Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992). In Greenway, the plaintiff made 64 significant changes to his deposition via an errata sheet. Id. at 323. The court ordered deletion of the changes, holding Rule 30(e) only existed to allow a party to correct errors made by the court reporter. The rule did not allow a deponent to “alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses.” Id. at 325. Numerous courts have agreed. See, e.g., Norelus v. Denny’s, Inc., 628 F.3d 1270, 1281-82 (11th Cir. 2010) (collecting cases). The Eighth Circuit has not yet taken a position on either side [*39] of the division of authority.

Ultimately, a flexible approach, such as the one articulated by the Third Circuit Court of Appeals, best serves the interests of fairness and efficiency. See EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 267-68 (3d Cir. 2010). In EBC, the court noted that allowing the original deposition to be read at trial, or allowing a supplemental deposition after the submission of an errata sheet, would offer “cold comfort” to a party that might otherwise have prevailed at summary judgment. See id. at 268. Likening the situation to the court’s view of “sham affidavits,” the Third Circuit held that a “one-size-fits-all rule” would not be appropriate. 7 Id. at 270. The court thus held district courts have the discretion to strike substantive changes made in errata sheets, if the deponent fails to provide “sufficient justification.” Id. EBC’s reasoning is persuasive, in particular because the Eighth Circuit has also articulated a flexible, though cautious, approach to striking “sham affidavits.” See, e.g., City of St. Joseph v. Sw. Bell Tel., 439 F.3d 468, 475-76 (8th Cir. 2006).

7 The “sham affidavit” doctrine, used in both the Third and Eighth circuits, permits courts [*40] to “ignore affidavits that contradict earlier deposition testimony without adequate explanation . . . .” EBC, 618 F.3d at 268; Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365-66 (8th Cir. 1983).

In this case, Hallman’s errata sheet will be stricken. Significantly, and unlike in the cases cited by Plaintiffs, neither Hallman nor Plaintiffs’ counsel exercised their right to review Hallman’s deposition transcript and submit a signed sheet of corrections. Since 1991, Rule 30(e) has required either the deponent or a party to request the right to review and sign before the conclusion of the deposition. Fed. R. Civ. P. 30(e) advisory committee’s note. Here, neither Hallman nor Plaintiffs made this request, either before or after the deposition concluded, and they have not articulated good cause for failing to do so. In addition, Hallman did not state a single explanation or justification for his numerous and substantive edits. Trek’s motion to strike could be granted on these bases alone.

Just as importantly, Hallman’s edits unquestionably reflect an attempt to bolster the substance and credibility of his testimony, and the submission of these edits occurred just after the [*41] deposition deadline had passed and shortly before the dispositive motion deadline. See Stip. to Amend Scheduling Order [Docket No. 16]. Many of Hallman’s “corrections” include citations to the record, to statutes and jury instruction models, and to engineering standards never once mentioned in the original deposition. Reading Hallman’s original deposition to the jury as a counterbalance to his edited testimony would offer “cold comfort” to Trek, which seeks to exclude his expert witness testimony at the dispositive motion stage. See EBC, 618 F.3d at 268. Similarly, allowing Trek to further depose Hallman as this stage could cause significant inefficiency and delay. Under the circumstances of this case, Hallman’s errata sheet will be stricken.

C. Motion to Exclude Expert Testimony

Finally, Trek moves to exclude Hallman’s testimony as Plaintiffs’ expert. Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. The rule states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the [*42] trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. Rule 702 reflects but does not codify the holding of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and the cases interpreting Daubert, including Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). Fed. R. Evid. 702 advisory committee’s note.

Under Daubert, trial courts act as “gatekeepers” to ensure that: the proposed expert testimony is useful to the factfinder in deciding the ultimate fact issue; the expert witness is qualified; and the proposed testimony is “reliable or trustworthy in an evidentiary sense. . . .” Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001). In addition to Rule 702, trial courts may consider several factors set out by Daubert for determining reliability, including: (1) whether the theory can be (and has been) tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error; and [*43] (4) whether the theory enjoys general acceptance in the relevant scientific community. Daubert, 509 U.S. at 593-94. Courts have also considered whether “the expertise was developed for litigation or naturally flowed from the expert’s research.” Lauzon, 270 F.3d at 687.

No single Daubert or Rule 702 factor is determinative. Instead, the trial court must evaluate reliability in a flexible manner, as the Daubert factors may not necessarily apply “to all experts or in every case.” Kumho, 526 U.S. at 141. Thus, the trial court has broad discretion not only in ultimately determining reliability, but also in how it determines reliability. Id. at 142. Finally, the trial court should generally resolve doubts about the usefulness of an expert’s testimony in favor of admissibility. Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir. 2006). “Only if the expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929-30 (8th Cir. 2001).

Hallman produced two reports. In support of each, Hallman reviewed patents, Trek’s promotional and safety materials, documents produced in this and [*44] other litigation, and the Minnesota jury instruction guide. Hallman also visited stores and casually observed bicycles in use. In terms of testing, Hallman used equipment to test the strength of properly and improperly affixed quick release devices on a single Trek bicycle, and he also studied the results from Trek’s similar, internal tests. See Hallman Dep. 49-50. Hallman did not similarly test the effect of secondary retention devices, nor did he review similar testing by another party. With this background, Hallman opined that the design of Sanny’s bicycle was unreasonably dangerous, and that tab tips or a similar secondary retention device would have prevented Sanny’s accident. Hallman also evaluated Sanny’s bicycle and concluded that Sanny’s quick release became loose while it was locked to a bicycle post outside of his workplace, shortly before Sanny’s accident.

1. “Unreasonably Dangerous” Opinion

Trek asserts that Hallman reached his ultimate conclusion–that Sanny’s bicycle was unreasonably dangerous–without reliable bases and without the proper qualifications. Trek argues Hallman’s definition of “unreasonably dangerous” relies on circular logic and that his overall opinion is [*45] not based on data but on his own self-serving assertions. It also argues Hallman neither conducted tests nor conducted a statistically reliable study of data demonstrating an increase in safety from secondary retention devices. Trek also argues Hallman has no professional experience in bicycle safety or design, a prerequisite for experts in this case.

Hallman’s ultimate opinion regarding whether Sanny’s bicycle was “unreasonably dangerous” must be excluded. In his deposition, Hallman never clearly articulated his definition for “unreasonably dangerous.” Instead, Hallman circuitously defined an unreasonably dangerous product as one that was “more likely to cause injury” than a product that was not unreasonably dangerous. Hallman Dep. 5-6. As discussed above, “unreasonably dangerous” is a key legal consideration in a design defect claim. While an expert may testify as to the ultimate question before the factfinder, he may be prevented from doing so if his testimony in this regard is more likely to confuse a jury than aid it. Cf. United States v. Kelly, 679 F.2d 135, 136 (8th Cir. 1982) (allowing expert to testify as to ultimate question in part because testimony used commonly understood [*46] legal terms, thus avoiding risk of confusion).

In addition, Hallman did not conduct any testing of secondary retention devices. Hallman tested the reliability of a quick release device operating without a secondary retention mechanism, and also studied similar tests by Trek. He thus concluded that an improperly-affixed device could easily come loose. But Hallman conducted no similar analysis for bicycles equipped with secondary retention devices. On the other hand, because manufacturers have sold various secondary retention devices in the market for many years now, testing is not necessarily a requisite for an opinion about safety. See, e.g., Young, 428 F.3d at 790.

Here again, however, Hallman did not conduct any repeatable analysis in support of his opinion that a bicycle without secondary retention devices is unreasonably dangerous. Under Rule 702, the court’s primary concern is an expert’s methodology, not their conclusions. Bonner, 259 F.3d at 929. Hallman did not use a particular method to reach his ultimate conclusion. Instead, he simply reviewed deposition transcripts and Trek’s wheel detachment data and formed his opinion. See Hallman Dep. 23-25. Nothing about this opinion derives [*47] from scientifically reliable or repeatable methods; it simply affirms Plaintiffs’ view of the evidence without adding insight. A jury could, and should, draw its own conclusions about the testimony and data using common sense. Hallman’s view that Sanny’s bicycle was unreasonably dangerous would not assist the jury.

2. Failure to Warn Opinion

Because the Court grants Trek’s motion for summary judgment on Plaintiffs’ failure to warn claim, Hallman’s testimony in this area is irrelevant. Even if Plaintiffs’ failure to warn claim survived, Hallman’s testimony would not be admissible. In the failure to warn context, experts typically opine regarding a warning’s design or content, or whether a warning could have prevented the accident in question. See, e.g., Finke v. Hunter’s View, Ltd., 596 F. Supp. 2d 1254, 1263 (D. Minn. 2009). Here, Hallman opines only that Trek should have advised Sanny and other consumers of the risk in riding without secondary retention devices. See Pls.’ Mem. Opp. Mot. to Exclude [Docket No. 92] 5; Hallman Aff. Ex. 2 (“Hallman Supp. Report”), at 6. Put plainly, Hallman’s opinions address Trek’s legal duty to warn, and must thus be excluded.

3. Opinions Regarding Bicycle [*48] Mechanics and Sanny’s Accident

Although the above expert opinion testimony previously discussed will be excluded, Hallman does have admissible testimony which may aid the jury. Hallman’s analysis of how quick release devices function, and their potential for wheel detachment without secondary retention devices, are based on mechanical principles within Hallman’s expertise and derived from both Hallman’s and Trek’s own tests. Also, testimony derived from Hallman’s study of Sanny’s bicycle is based on the close analysis of metal deterioration and usage marks, and is within Hallman’s expertise as a materials and mechanics engineer. Although Hallman’s primary expertise centers on automobile accidents, many of the same reconstruction principles could arguably apply here. Because Trek offers no specific argument against these opinions, and because the opinions may aid the jury, these opinions will not be excluded at this stage. 8

8 Trek focused on the wholesale exclusion of Hallman’s testimony, and did not make specific arguments as to each of Hallman’s opinions. The admissibility of opinions not excluded here may be addressed by the parties at or before trial.

IV. CONCLUSION

Based on the foregoing, [*49] and all the files, records and proceedings herein, IT IS HEREBY ORDERED that:

1. Trek’s Motion for Summary Judgment [Docket No. 77] is GRANTED IN PART and DENIED IN PART.

2. Trek’s Motion to Strike Changes to the Deposition of Plaintiffs’ Expert David Hallman [Docket No. 70] is GRANTED.

3. Trek’s Motion to Exclude Testimony of Plaintiffs’ Expert [Docket No. 76] is GRANTED IN PART and DENIED IN PART; the testimony of David Hallman is limited as set forth above.

BY THE COURT:

/s/ Ann D. Montgomery

ANN D. MONTGOMERY

U.S. DISTRICT JUDGE

Dated: May 8, 2013.

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Carrier v. City of Amite, 2010-0007 (La. 10/19/10); 50 So. 3d 1247; 2010 La. LEXIS 2251

Carrier v. City of Amite, 2010-0007 (La. 10/19/10); 50 So. 3d 1247; 2010 La. LEXIS 2251

Herman Carrier, Individually and in His Capacity as the Administrator of the Estate of his Minor Child, Herman Blake Carrier, and his Wife, Wendy Wallace Carrier versus City of Amite, Bell Sports, Inc., and Sears Roebuck and Co.

No. 2010-CC-0007

SUPREME COURT OF LOUISIANA

2010-0007 (La. 10/19/10); 50 So. 3d 1247; 2010 La. LEXIS 2251

October 19, 2010, Decided

SUBSEQUENT HISTORY: Rehearing denied by Carrier v. City of Amite, 2010 La. LEXIS 3053 (La., Dec. 10, 2010)

PRIOR HISTORY: [**1]

ON WRIT OF CERTIORARI FROM THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF TANGIPAHOA.

Carrier v. City of Amite, 6 So. 3d 893, 2009 La. App. LEXIS 215 (La.App. 1 Cir., 2009)

DISPOSITION: REVERSED AND RENDERED.

COUNSEL: Stephen Dale Cronin, GUGLIELMO, MARKS, SCHUTTE, TERHOEVE & LOVE; John David Ziober, KENNON, ODOM & DARDENNE, APC, For Applicant.

Arthur W. Landry, Jeanne Andry Landry, ARTHUR W. LANDRY AND JEANNE ANDRY LANDRY, ATTORNEYS; Christopher M. Moody; John Ernest William Baay, II, Ernest Paul Gieger, Jr., GIEGER, LABORDE & LAPEROUSE, LLC; Thomas Reginald Hightower, Jr., THOMAS R. HIGHTOWER, JR., APLC, For Respondent.

OPINION

[*1247] PER CURIAM *

* Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

We granted certiorari in this case to determine whether this retail seller has a duty to instruct buyers on the proper method of wearing and fitting bicycle helmets. For the reasons that follow, we conclude plaintiffs failed to establish any legal duty on the part of the retailer under the facts presented.

UNDERLYING FACTS AND PROCEDURAL HISTORY

This case arises from an incident in which six-year-old Blake Carrier was injured while riding his bicycle on a municipal tennis court on May 29, 2002. At the time of the accident, Blake was wearing a bicycle helmet his parents allegedly purchased from Sears, Roebuck and Co. (“Sears”) in December 2001.

[Pg 2] Subsequently, Blake’s parents filed the instant suit against several defendants, including Sears. 1 Plaintiffs alleged Sears [*1248] failed to properly fit the helmet and instruct them regarding its correct use.

1 Also named as defendants were Bell Sports, Inc. (the manufacturer of the helmet), and the City of Amite (the owner [**2] of the tennis court). These defendants are not at issue for purposes of this opinion.

During discovery, plaintiffs produced an expert in the area of bicycle safety, James Green. In his deposition, Mr. Green stated he advised his clients to instruct their buyers on the proper use and fit of bicycle helmets. However, Mr. Green admitted he knew of no rules or laws requiring retailers to fit and instruct buyers of bicycle helmets. Mr. Green also explained his clients did not include Sears.

Sears filed both a motion in limine and a motion for summary judgment. In support of the motion in limine, Sears argued Mr. Green had no basis for his conclusion that retailers had a duty to fit and instruct buyers on the proper way to wear a bicycle helmet. In support of the motion for summary judgment, Sears argued retailers had no duty to buyers to fit and instruct on the proper use of bicycle helmets.

The district court granted Sears’ motion in limine to exclude Mr. Green’s testimony, and further granted Sears’ motion for summary judgment to dismiss all claims against Sears.

Plaintiffs appealed. On appeal, the court of appeal reversed, finding the district court erred in deciding the duty issue without [**3] first determining that the expert’s testimony was inadmissible under the factors identified in Daubert v. [Pg 3] Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and State v. Foret, 628 So. 2d 1116 (La. 1993). Accordingly, the court of appeal reversed the judgment granting the motion for summary judgment, and remanded the case to the district court for further proceedings. Carrier v. City of Amite, 08-1092 (La. App. 1 Cir. 2/13/09), 6 So. 3d 893, writ denied, 09-919 (La. 6/5/09), 9 So. 3d 874.

[Pg 4] On remand, Sears re-urged both the motion in limine and the motion for summary judgment. 2 After a hearing, the district court denied Sears’ motions.

2 On remand, Sears filed a pleading captioned “Motion for Hearing on Summary Judgment and Motion in Limine for Purposes of Issuance of Oral Reasons for Judgment, or Alternatively, Motion Requesting Written Reasons for Judgment.” Plaintiffs assert this motion was procedurally improper, because nothing in the court of appeal’s opinion indicated the case was being remanded for entry of reasons. However, the record reveals Sears filed its original motion for summary judgment and motion in limine, as well as [**4] supporting exhibits, into the record at the hearing. Thus, despite the caption of the motion, we believe Sears expanded its pleadings to reurge its motion for summary judgment and motion in limine. See La. Code Civ. P. art. 1154.

Sears sought supervisory review of this ruling. The court of appeal denied the writ, with one judge dissenting.

Upon Sears’ application, we granted certiorari to consider the correctness of the district court’s decision. Carrier v. City of Amite, 10-0007 (La. 3/12/10), 29 So. 3d 1241.

DISCUSSION

The central question presented in this case is whether plaintiffs established a legal duty on the part of a retailer, such as Sears, to provide point-of-sale fitting instructions for bicycle helmets. In Lemann v. Essen Lane Daiquiris, Inc., 05-1095 at p. 8 (La. 3/10/06), 923 So. 2d 627, 633, we discussed the principles for determining the existence of a legal duty:

[HN1] A threshold issue in any negligence action is whether the defendant owed the plaintiff a duty. Meany v. Meany, 94-0251, p. 6 (La. 7/5/94), 639 So.2d 229, 233. Whether a duty is owed is a question of law. Peterson v. Gibraltar Savings and Loan, 98-1601, 98-1609, p. 7 (La. 5/18/99), 733 So. 2d 1198, 1204; Mundy v. Department of Health and Human Resources, 620 So.2d 811, 813 (La. 1993); [**5] [*1249] Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289, 292 (La. 1993). In [Pg 5] deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. See Socorro v. City of New Orleans, 579 So.2d 931, 938 (La. 1991). The inquiry is whether the plaintiff has any law (statutory, jurisprudential, or arising from general principles of fault) to support the claim that the defendant owed him a duty. Faucheaux, 615 So. 2d at 292; Perkins, 98-2081 at 22, 756 So. 2d at 404.

In the instant case, plaintiffs do not identify any Louisiana statutory or jurisprudential authority which establishes a specific duty on the part of a retailer to fit bicycle helmets at the point of sale. Rather, plaintiffs seek to establish the existence of industry standards, including best practices, which they claim are relevant to determine whether a general duty is owed.

At this juncture, the parties dedicate a large part of their briefs to discussing whether the district court properly qualified Mr. Green as an expert on the subject of point-of-sale assistance in the sale of bicycle accessories. However, we find we need not [**6] resolve the question of Mr. Green’s qualifications under the unique facts presented, because we find that Mr. Green’s testimony, even if accepted, is insufficient to establish any factual basis for a duty on the part of Sears.

In his deposition, Mr. Green testified as follows:

They came out with a mass market approach to the Wal-Marts, etcetera, the Sears, the Lowe’s, whoever, that wanted to sell bikes, where they just wanted to get bikes and components out there into the commerce stream. They don’t provide point-of-sale service at all. You have, you have two families of retail organizations here. I maintained ever since I saw this developing some years ago that this mass market approach is not a good thing, that if you’re going to be a reputable retailer and I tell my clients that, if you’re going to be a reputable retailer, you must properly instruct at the point-of-sale from everything to how to operate a quick release, to how to fit a helmet, to never ride at night without a light on your bike, that kind of thing. It should be done at the point-of-sale, because bikes aren’t toys, they’re, they’re vehicles. [emphasis added]

[Pg 6] Although Mr. Green testified the fitting of bicycle [**7] helmets “should” be done at the point of sale, he cited no authority for this proposition other than his own opinion. To the contrary, when asked whether any regulations existed requiring a retailer to provide point-of-sale instructions on fitting bicycle helmets, Mr. Green testified, “[n]o, there’s nothing written up as a standard.”

Similarly, in response to Sears’ interrogatories, plaintiffs admitted Mr. Green did not rely on any formal requirements in support of his position:

INTERROGATORY NO. 4

Please identify any and all standards, state or federal regulations, engineering, helmet manufacturer, department store and/or retail association periodicals, documents or guidelines which your expert, James M. Green, relies upon in opining that an industry standard existed in November, 2001 requiring that retailers of bicycle helmets must give point of sale instructions on proper sizing and fitting.

ANSWER TO INTERROGATORY NO. 4:

There is no requirement but perfectly clear instructions provided by BHSI. Most reputable retailers do fit at the [*1250] point of sale. These include REI, Performance Bicycle, Brooklyn Bike Shop, and any bike shop who belong to the Independent Bicycle Retailer Organization [**8] (now known as the National Bicycle Dealers Association (NBDA). There are currently 6000 shops who belong to NBDA who employ helmet fit at point of sale (See attached documentation from NBDA). The NBDA also outlined the differences between a reputable shop and a mass merchant shop on the safety issue. (See attached documentation from NBDA). [emphasis in original]

A review of the documentation attached to plaintiffs’ answer to Interrogatory No. 4 reveals none of these documents set forth an industry standard which would mandate the fitting of bicycle helmets by a retailer at the point of sale. Moreover, Mr. Green admitted he did not know if Sears belonged to any bicycle safety industry group.

[Pg 7] Under these circumstances, we must conclude Mr. Green’s testimony reflects his own personal opinion as to what a retailer should do, and is not based on any objective standards establishing what a retailer is required to do. Courts have held that [HN2] experts may not rely on their own conclusions as authority in the absence of any objective support. See Grdinich v. Bradlees, 187 F.R.D. 77 (S.D.N.Y. 1999) (holding the expert’s testimony was without foundation because “[w]ithout ‘industry standards’ [**9] to rely upon, [the expert] seems to base his conclusions on his own authority”). Thus, Mr. Green’s testimony does not establish the existence of any statutes, regulations, or industry standards which would support the finding of a duty on a retailer to fit bicycle helmets at the point of sale.

Additionally, as a matter of policy, we find no ground for recognizing such a duty based on general principles of tort law. In Meany v. Meany, 94-0251 at p. 6 (La. 7/5/94), 639 So. 2d 229, 233, we discussed the policy considerations to be taken into account in determining whether the law imposes a duty under particular facts:

[HN3] When a plaintiff articulates a general rule or principle of law that protects his interests, it is necessary for the court to determine whether the rule is intended to protect him from the particular harm alleged, an inquiry which involves both the duty and causation elements of the negligence formulation. The court must make a policy determination in light of the unique facts of the case. Thus, the duty-risk analysis requires the court to take into account the conduct of each party as well as the particular circumstances of the case. Socorro v. City of New Orleans, 579 So.2d 931, 938 (La. 1991). [**10] In determining whether to impose a duty in a particular situation, the court may consider various moral, social, and economic factors, including whether the imposition of a duty would result in an unmanageable flow of litigation; the ease of association between the plaintiff’s harm and the defendant’s conduct; the economic impact on society as well as the economic impact on similarly situated parties; the nature of the defendant’s activity; moral considerations, particularly victim [Pg 8] fault; and precedent as well as the direction in which society and its institutions are evolving. Pitre v. Opelousas General Hospital, 530 So.2d 1151, 1161 (La. 1988); William E. Crow, The Anatomy of a Tort, 22 Loy. L. Rev. 903 (1976).

Applying these precepts to the instant case, we believe the policy considerations militate against the finding of any duty on the part of a retailer to provide point-of-sale fitting instructions for bicycle helmets. Under current societal norms, we do not believe it is reasonable to require mass-marketing [*1251] retailers, such as Sears, to offer specialized point-of-sale advice on the thousands of products they sell. Rather, it is typically understood the consumer will ask [**11] for assistance, if it is required. In the instant case, the deposition testimony of Mr. Carrier establishes he never asked for any assistance at the time he purchased the helmet. Moreover, Mr. and Mrs. Carrier testified in their respective depositions that they believed the helmet, which was purchased as a Christmas gift for Blake, fit him properly; indeed, Mrs. Carrier testified it “was the best-fitting helmet [Blake] ever had.” Mrs. Carrier admitted she did not consult the instructions for fitting the helmet, and testified the instructions “probably got thrown away because we’ve had helmets before so we know how to use them.” 3 Under these circumstances, we find the responsibility to determine whether the helmet was properly fitted should rest with plaintiffs, not Sears.

3 Interestingly, Mr. Green opined that the manufacturer’s instruction on use and fit in this case were “the best I’ve ever seen.” Nonetheless, Mr. Green stated he believed point-of-sale assistance on fit was necessary in part, because consumers frequently failed to consider the instructions on fit and use provided by manufacturers. However, Mr. Green conceded that such a duty did not exist in the case of mail-order [**12] purchases. This dichotomy in Mr. Green’s testimony reveals the fallacy in his conclusions. We believe the more consistent approach is to place the duty on the consumer to determine the product he or she purchased is appropriate for its intended use.

In summary, we conclude that under the facts presented, there is no legal duty which would require Sears to provide fitting instructions for bicycle [Pg 9] helmets at the point of sale. In the absence of any legal duty, Sears is entitled to summary judgment as a matter of law.

DECREE

For the reasons assigned, the judgment of the district court is reversed. The motion for summary judgment filed by Sears, Roebuck Co. is granted, and judgment is entered in its favor dismissing the claims of plaintiffs with prejudice.

REVERSED AND RENDERED.

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Cottom v. USA Cycling, Inc, 2002 U.S. Dist. LEXIS 6745

Cottom v. USA Cycling, Inc, 2002 U.S. Dist. LEXIS 6745

Bradley J. R. Cottom and Melissa Cottom, Plaintiffs, v. USA Cycling, Inc., Defendant.

 

Case No. 1:01-CV-474

 

United States District Court for the Western District of Michigan, Southern Division

 

2002 U.S. Dist. LEXIS 6745

 

April 11, 2002, Decided

April 11, 2002, Filed

 

Counsel: For BRADLEY J.R. COTTOM, MELISSA COTTOM, plaintiffs: Michael J. Cronkright, Michael J. Cronkright, PC, Lansing, MI.

For USA CYCLING INC, defendant: John J. Hoffman, Thomas, DeGrood, Witenoff & Hoffman, Southfield, MI.

Judges: GORDON J. QUIST, UNITED STATES DISTRICT JUDGE.

Opinion By: GORDON J. QUIST

Opinion:

Plaintiffs, Bradley Cottom (“Cottom”) and his wife Melissa, filed this premises liability action against Defendant, USA Cycling, Inc. (“USA Cycling“), in state court after Cottom suffered injuries in a bicycling accident. USA Cycling removed the action to this Court based on diversity jurisdiction, and the matter is now before the Court on USA Cycling’s motion for summary judgment. Oral argument on the Motion was heard on April 9, 2002.

Facts

Cottom, an avid dirt bicycle rider, participated in competitive BMX bicycle racing from age 14 to 20. (Cottom Dep. at 4-5, Pl.’s Br. Resp. Ex. A.) Since that time, he has primarily restricted himself to recreational riding on streets and bike trails. n1 (Id. at 10-11, 20.) At approximately 5 p.m. on July 12, 2000, Cottom took his high performance Diamondback Reactor BMX bicycle to Gier Park in Lansing, Michigan. (Id. at 6, 15.) USA Cycling was constructing a dirt bike race track at the park, and Cottom went to investigate the progress of the track construction. (Id. at 6-7.) Cottom had been to the park approximately one month before and had seen a bulldozer working at the site. (Id. at 7-9.) At that time, he observed approximately 12 riders using the track. (Id. at 9.) When Cottom arrived at the park on July 12, he saw a bulldozer and men who appeared to be construction workers, but they were not working on the track at the time. (Id. at 47, 103.) Other people present at the park were picking up rocks and removing them from the track. (Id. at 93, 103.) There was no fence or other barricade around the track, and no warning or construction signs were posted. (Compl. PP 8-9, 19f.) Other riders were using the dirt track, and Cottom retrieved his bike from his truck in order to join them on the track. (Cottom Dep. at 26-28.) The track was dry, and it was still daylight when he began to ride. (Id. at 26.)

n1 Cottom was 36 years old at the time of his deposition in November 2001. (Cottom Dep. at 4.)

Cottom rode his bike around the track one time without incident. (Id. at 29.) Plaintiffs allege in the Complaint that Cottom stopped to discuss the track conditions with a worker at the track and that the worker assured him that the track was safe. (Compl. P 10.) Plaintiffs have not presented evidence regarding the identity of this person. It is unknown whether the person was an employee or agent of USA Cycling, a construction worker employed by an independent contractor, or merely a bystander, a passerby, or a volunteer picking up rocks. There is nothing in the record to indicate that the person had any more experience on the track or knowledge of the track conditions than Cottom had.

On his second lap around the track, Cottom was riding through a banked turn and heading toward a jump when he lost control of his bike. (Cottom Dep. at 61.) He hyperextended his knee while attempting to recover control and fell to the ground, injuring his leg. (Id. at 32-34, 40.) Cottom testified at his deposition that he was not sure exactly what caused his accident, but he surmised that his tire may have hit a rock or a rut or sank into loose, gravelly dirt. (Id. at 30-32, 92-93.) According to Cottom, his bike was functioning properly and he was “taking it easy” by traveling between 5-10 miles per hour at the time, so neither the condition of his bike nor his speed caused him to lose control. (Id. at 41, 91-92.) Cottom’s wife was present at the park at the time, but she did not see the fall. (Id. at 42.)

Cottom was taken to a hospital where he was admitted for four days. (Compl. P 13.) He fractured his lower left leg in the fall and has undergone three corrective surgeries on his leg and knee since the accident. n2 (Medical Records, Pl.’s Br. Resp. Ex. B.)

n2 The Complaint states that Cottom injured his right leg, but at his deposition, Cottom testified that it was his left leg that was injured. (Compl. PP 11, 23; Cottom Dep. at 33.) Cottom’s medical records confirm that it was his left leg that was fractured. (Medical Records, Pls.’ Br. Resp. Ex. B.)

Standard

[HN1] Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56. The rule requires that the disputed facts be material. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A dispute over trivial facts which are not necessary in order to apply the substantive law does not prevent the granting of a motion for summary judgment. Id. at 248, 106 S. Ct. at 2510. The rule also requires the dispute to be genuine. A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id. This standard requires the non-moving party to present more than a scintilla of evidence to defeat the motion. Id. at 251, 106 S. Ct. at 2511 (citing Improvement Co. v. Munson, 81 U.S. 442, 14 Wall. 442, 448, 20 L. Ed. 867 (1872)).

[HN2] A moving party who does not have the burden of proof at trial may properly support a motion for summary judgment by showing the court that there is no evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S. Ct. 2548, 2553-54, 91 L. Ed. 2d 265 (1986). If the motion is so supported, the party opposing the motion must then demonstrate with “concrete evidence” that there is a genuine issue of material fact for trial. Id.; Frank v. D’Ambrosi, 4 F.3d 1378, 1384 (6th Cir. 1993). The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992)(quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)).

Analysis

The parties agree that Michigan law governs the substantive issues of this case because all of the events occurred in Michigan, the forum state. (Def.’s Br. Supp. at 8-9; Pls.’ Br. Resp. at 4.) See Haque Travel Agency, Inc. v. Travel Agents Int’l, Inc., 808 F. Supp. 569, 572 (E.D. Mich. 1992).

USA Cycling makes several arguments as to why it is entitled to summary judgment. Because the Court believes that the “open and obvious” argument is dispositive, the Court will address only that argument.

USA Cycling argues that because the condition of the track was open and obvious, it did not owe Cottom a duty of protection or warning. USA Cycling notes that Cottom was able to observe the track prior to riding, that he rode around the track one time without falling, and that he was able to get a feel for the track conditions prior to his accident. Thus, according to USA Cycling, there were no hidden dangers present and it cannot be held liable for Cottom’s accident. The Court agrees.

For the purposes of this motion, the parties agree that Cottom entered USA Cycling’s premises as a licensee. (Def.’s Br. Supp. at 10; Pls.’ Br. Resp. at 8-9.) The Michigan Supreme Court has defined licensee status and explained the duty owed to a licensee by a premises owner:

[HN3] A “licensee” is a person who is privileged to enter the land of another by virtue of the possessor’s consent. A landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved. The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee’s visit.

Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 596-97, 614 N.W.2d 88, 91-92 (2000)(citation omitted).

Plaintiffs contend that USA Cycling knew of the dangers presented by an unfinished dirt track, and they submit as evidence publications from USA Cycling regarding safety guidelines and its recommendations concerning BMX track conditions that discuss the dangers of unpacked, loose dirt tracks. (Insurance Guidelines and Safety Manual, Pls.’ Br. Resp. Ex. F; Building the Track – Suggestions, Pls.’ Br. Resp. Ex. E.) Even assuming that USA Cycling knew of the dangers presented by the track at Gier Park, this assertion only gets Plaintiffs halfway over their burden of proof. In order to hold USA Cycling liable for Cottom’s accident, Plaintiffs must not only show that USA Cycling knew or should have known of the potential danger on the premises but also that Cottom did not know about it. This is because [HN4] there is no duty to take steps to safeguard licensees from conditions that are open and obvious, for “such dangers come with their own warning.” Pippin v. Atallah, 245 Mich. App. 136, 143, 626 N.W.2d 911, 914 (2001). A danger is open and obvious if “‘an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection.’” Abke v. Vandenberg, 239 Mich. App. 359, 361-62, 608 N.W.2d 73, 75 (2000) (per curiam) (alteration in original) (quoting Novotney v. Burger King Corp., 198 Mich. App. 470, 475, 499 N.W.2d 379, 381 (1993)). The test is an objective one, asking whether a reasonable person in the position of the plaintiff would foresee the danger. Hughes v. PMG Bldg., Inc., 227 Mich. App. 1, 11, 574 N.W.2d 691, 696 (1997).

Cottom, an experienced BMX cyclist, was able to casually inspect the track and the track conditions before his accident by watching other bikers on the track and then riding on the track once himself. A reasonable person in this position would foresee the dangers the track presented, making the condition of the track open and obvious. In fact, most Americans have ridden bicycles in their youth and know that bike riders lose control of their bikes in loose dirt or that a rock will cause a bike to tip over. Therefore, USA Cycling is absolved of potential liability unless Plaintiffs can show that the condition of the track posed “an unreasonable risk of harm.” Abke, 239 Mich. App. at 361, 608 N.W.2d at 75 (citing Millikin v. Walton Manor Mobile Home Park, Inc., 234 Mich. App. 490, 498-99, 595 N.W.2d 152, 156-57 (1999)). Michigan courts have explained that “special aspects of a condition [might] make even an open and obvious risk unreasonably dangerous.” Lugo v. Ameritech Corp., 464 Mich. 512, 517, 629 N.W.2d 384, 386 (2001). In Lugo, the Michigan Supreme Court discussed the “special aspect” exception to the open and obvious doctrine:

[HN5] With regard to open and obvious dangers, the critical question is whether there is evidence that creates a genuine issue of material fact regarding whether there are truly “special aspects” of the open and obvious condition that differentiate the risk from typical open and obvious risks so as to create an unreasonable risk of harm, i.e., whether the “special aspect” of the condition should prevail in imposing liability upon the defendant or the openness and obviousness of the condition should prevail in barring liability.

. . . .

. . . In sum, only those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to remove that condition from the open and obvious danger doctrine.

Id. at 517-19, 629 N.W.2d at 387-88. For example, a pothole in a parking lot presents an open and obvious risk for which the premises owner would not normally be liable if someone were to trip and fall because of the hole. An unguarded, 30-foot-deep pit might present an unreasonable risk, however, because of the danger of death or severe injury. Id. at 520, 629 N.W.2d at 388.

Cottom has failed to present a genuine issue of material fact about whether the unfinished condition of the track made it unreasonably dangerous. First, the unpacked, gravelly condition of the track surface did not make the likelihood of injury higher than an ordinary, complete bike track. It is just as difficult for an ordinarily prudent person to ride a bike on a race track of loose dirt without losing control of the bike or falling as it is on any other dirt track. Second, there was not a high potential for severe harm. Thousands of people ride bikes everyday, and many of them fall while riding their bikes on sidewalks, bike paths, tracks or trails. Bumps, bruises, and scrapes, or occasionally broken bones or more serious injuries, are the normal incidents of bike riding, especially BMX bike riding as in this case. The track at Gier Park presented these same types of dangers, making it more like an ordinary pothole and less like a deep, unguarded pit. Finally, Cottom has failed to support with any evidence the allegation that an employee or agent working on the track assured him that it was safe for use. There is no indication in the record that this person was actually an employee or agent of USA Cycling rather than a passerby or bystander who came to watch people ride on the track. Moreover, there is nothing to demonstrate that he or she was any more knowledgeable about the safety of the track conditions than was Cottom. In fact, Cottom had the benefit of riding around the track one time and experiencing the track conditions firsthand, and he himself concluded that the track was suitable for riding. (Cottom Dep. at 48-49.)

USA Cycling is entitled to summary judgment because the dangers presented by the track were open and obvious and Plaintiffs have failed to show that there were special aspects of the track making it unreasonably dangerous.

Conclusion

For the foregoing reasons, the Court will grant USA Cycling’s motion for summary judgment.

An Order consistent with this Opinion will be entered.

Dated: APR 11 2002

GORDON J. QUIST

UNITED STATES DISTRICT JUDGE

ORDER

For the reasons stated in the Opinion filed this date,

IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment (docket no. 24) is GRANTED.

This case is closed.

Dated: APR 11 2002

GORDON J. QUIST

UNITED STATES DISTRICT JUDGE

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Okura v. United States Cycling Federation et al., 186 Cal. App. 3d 1462; 231 Cal. Rptr. 429; 1986 Cal. App. LEXIS 2178

Okura v. United States Cycling Federation et al., 186 Cal. App. 3d 1462; 231 Cal. Rptr. 429; 1986 Cal. App. LEXIS 2178

Kevin Okura, Plaintiff and Appellant, v. United States Cycling Federation et al., Defendants and Respondents

No. B021058

Court of Appeal of California, Second Appellate District, Division Five

186 Cal. App. 3d 1462; 231 Cal. Rptr. 429; 1986 Cal. App. LEXIS 2178

November 12, 1986

PRIOR HISTORY: [***1] Superior Court of Los Angeles County, No. SWC-77239, Abraham Gorenfeld, Temporary Judge. *

* Pursuant to California Constitution, article VI, section 21.

DISPOSITION: For the foregoing reasons, the judgment is affirmed.

CALIFORNIA OFFICIAL REPORTS SUMMARY In an action for personal injuries brought by a participant in a bicycle race for injuries suffered during the race, against the organizers of the race and the city in which the race was held, the trial court entered summary judgment for defendants based on a release which plaintiff had signed prior to entry in the race. (Superior Court of Los Angeles County, No. SWC-77239, Abraham Gorenfeld, Temporary Judge. *)

In an action for personal injuries brought by a participant in a bicycle race for injuries suffered during the race, against the organizers of the race and the city in which the race was held, the trial court entered summary judgment for defendants based on a release which plaintiff had signed prior to entry in the race. (Superior Court of Los Angeles County, No. SWC-77239, Abraham Gorenfeld, Temporary Judge. *)

* Pursuant to California Constitution, article VI, section 21.

The Court of Appeal affirmed. The court held that the release was not one involving a transaction affecting the public interest, and was therefore not invalid under Civ. Code, § 1668, making contracts which have exemption of anyone from responsibility for his own wilful injury to the person or property of another as their object against the policy of the law. Further, there were no triable issues of fact regarding whether the release form was clear and legible or whether the release form released defendants from the type of risk which caused plaintiff’s injuries. (Opinion by Hastings (Gary), J., + with Feinerman, P. J., and Ashby, J., concurring.)

+ Assigned by the Chairperson of the Judicial Council.

HEADNOTES

CALIFORNIA OFFICIAL REPORTS HEADNOTES

Classified to California Digest of Official Reports, 3d Series

(1) Compromise, Settlement and Release § 8–Requisites and Validity–Preincident Releases. –Preincident releases that do not involve transactions affecting “the public interest” are not invalid under Civ. Code, § 1668, providing that contracts which have exemption of anyone from responsibility for his own wilful injury to the person or property of another as their object are against the policy of the law. The areas to consider to determine whether or not the public interest is affected are whether it concerns a business suitable for public regulation; whether the party seeking exculpation is performing a service of great importance to the public; whether the party holds himself out as willing to perform the service for any member of the public who seeks it, or at least for any member coming within certain established standards; whether, as a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services; whether, in exercising his superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and whether, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

(2) Compromise, Settlement and Release § 8–Requisites and Validity–Preincident Release–Participation in Organized Bicycle Race. –In an action for personal injuries brought by a participant in a bicycle race against the organizers of the race and the city in which the race was held, the trial court properly entered summary judgment for defendants based on a release which plaintiff had signed prior to entering the race. The release was not invalid under Civ. Code, § 1668, providing that all contracts which have for their object the exemption of anyone for responsibility for his own wilful injury to the person or property of another are against the policy of the law, since the preincident release did not affect the public interest.

(3) Compromise, Settlement and Release § 8–Requisites and Validity–Clarity and Legibility of Release Form. –In an action for personal injuries brought by a participant in a bicycle race against the organizers of the race and the city in which the race was held, the trial court properly granted summary judgment for defendants based on an otherwise valid preincident release which plaintiff had signed prior to entering the race, since no triable issues of fact existed regarding whether the release form was clear and legible. The release was not buried in a lengthy document or hidden among other verbiage. The type was clear and legible, and in light of the fact that the release had no other language to compete with, its size, three and one-half inches by eight inches, was appropriate.

(4) Compromise, Settlement and Release § 9–Construction, Operation and Effect–Release From Type of Risk Causing Injuries. –In an action for personal injuries brought by a participant in a bicycle race against the organizers of the race and the city in which the race was held, the trial court properly entered summary judgment for defendants based on a preincident release which plaintiff had signed prior to entering the race, since the otherwise valid release form released defendants from the type of risk which caused plaintiff’s injuries. The language was clear and unambiguous and the entities released from liability that could have arisen out of negligence or carelessness on the part of the persons or entities mentioned in the release obviously included defendants, who were the promoters and sponsors of the event, and the city, which was an involved municipality.

COUNSEL: Edwin J. Wilson, Jr., and Jo Ann Iwasaki Parker for Plaintiff and Appellant.

Hagenbaugh & Murphy, Robert F. Donohue, Spray, Gould & Bowers, David T. Acalin, Cynthia Goodman and Robert Dean for Defendants and Respondents.

JUDGES: Opinion by Hastings (Gary), J., + with Feinerman, P. J., and Ashby, J., concurring.

+ Assigned by the Chairperson of the Judicial Council.

OPINION BY: HASTINGS

OPINION

[*1464] [**429] On August 4, 1984, appellant was injured while participating in a bicycle race known as the Hermosa Beach Grand Prix. The race was organized and staffed by members and volunteers of the South Bay Wheelmen, Inc., a nonprofit affiliate of the United States Cycling Federation. The United States Cycling Federation is a nonprofit organization of amateur competitive cyclists which sanctions bicycle races and provides clinics and training for members to prepare them for racing events. The race was run on closed portions of the public streets of Hermosa [***2] Beach. The city had issued a permit for the event.

Appellant has brought suit against the South Bay Wheelmen, United States Cycling Federation and the City of Hermosa Beach alleging negligence in the preparation and maintenance of the course. Plaintiff was racing in the second to last race of the day and apparently fell when his bicycle hit [*1465] loose debris as he was crossing railroad tracks on the course. He slid into a loose guardrail and was injured upon impact.

Summary judgment was granted to respondents herein based upon a release admittedly signed by appellant prior to entering the race. The release is contained on the entry form which is titled “Southern California Cycling Federation Standard Athelete’s Entry Blank and Release Form.” The language of the release contained immediately below the title is as follows: “In consideration of the acceptance of my application for entry in the above event, I hereby waive, release and discharge any and all claims for damages for death, personal injury or property damage which I may have, or which may hereafter accrue to me, as a result of [**430] my participation in said event. This release is intended [***3] to discharge in advance the promoters, sponsors, the U.S.C.F., the S.C.C.F., the promoting clubs, the officials, and any involved municipalities or other public entities (and their respective agents and employees), from and against any and all liability arising out of or connected in any way with my participation in said event, even though that liability may arise out of negligence or carelessness on the part of the persons or entities mentioned above.

“I further understand that serious accidents occasionally occur during bicycle racing: and that participants in bicycle racing occasionally sustain mortal or serious personal injuries, and/or property damage, as a consequence thereof. Knowing the risks of bicycle racing, nevertheless, I hereby agree to assume those risks and to release and hold harmless all of the persons or entities mentioned above who (through negligence or carelessness) might otherwise be liable to me (or my heirs or assigns) for damages.

“It is further understood and agreed that this waiver, release and assumption of risk is to be binding on my heirs and assigns.

“I agree to accept and abide by the rules and regulations of the United States Cycling [***4] Federation.” (Italics added.) The only remaining terms on the form are for information regarding the entrant such as: signature, name, address, phone number, date, age and class entered. The whole form is only eight inches wide and three and one-half inches high. The language of the release portion quoted above takes up approximately 40 percent of the form.

The facts presented to the trial court regarding the release were uncontradicted. Appellant admitted signing the release but complained he had no choice and that he had no chance to inspect the course himself because the organizers prevented the participants from going onto the course except during the race. He argues that the release form is void as against public [*1466] policy because it is a contract of adhesion and that the form itself is not sufficient to put a participant on notice that he is actually signing a release.

(1) (2) Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693] sets forth the basic law regarding the validity of preincident releases. First of all, the case recognizes that [HN1] not all releases of liability are invalid under Civil Code section [***5] 1668. Those releases that do not involve transactions affecting “the public interest” may stand. The case sets forth six areas to consider to determine whether or not the public interest is affected: “In placing particular contracts within or without the category of those affected with a public interest, the courts have revealed a rough outline of that type of transaction in which exculpatory provisions will be held invalid. Thus [HN2] the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. [1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of [***6] bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of [**431] the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” (Italics added, fns. omitted, 60 Cal.2d at pp. 98-101.) Bearing these in mind, we will analyze this case.

1. Public Regulation

The transaction in this case was entry into a public bicycle race organized by private nonprofit organizations. While bicycles generally are regulated to the extent they are subject to motor vehicle laws, the organized racing of bicycles is not the subject of public regulation. Neither the South Bay Wheelmen nor the United States Cycling Federation are subject to public regulation.

2. Is This a Service of Great Importance to the Public

The service provided here was the organization and running [***7] of competitive bicycle races for members of the organizers and the public. The race organizers [*1467] obtained the necessary permits; laid out the course; manned the course; obtained sponsors; and advertised the event. This is very similar to the organization and sponsorship of the numerous 10-kilometer and marathon running events that have blossomed since the mid to late 1970′s. However, herein, the races were divided into different classes. Appellant was riding in an “open” public event. Without such organization and sponsorship, those that desire to enter bicycle racing would undoubtedly have no chance to do so under organized settings. Therefore, there is no doubt but that respondents offer a public service. However, does it measure up to the public importance necessary to void the release.

In Tunkl v. Regents of University of California, supra, 60 Cal.2d 92, the question was whether or not a public hospital provided a service of great public importance. The question was answered in the affirmative. The question was also answered in the affirmative regarding escrow companies in Akin v. Business Title Corp. (1968) 264 Cal.App.2d 153 [70 Cal.Rptr. [***8] 287]. In Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 [131 Cal.Rptr. 90, 551 P.2d 410], the Supreme Court held that hospitals, and the relationship between hospitals and physicians, were sufficiently important to prevent an exculpatory clause from applying to a doctor suing a hospital based upon hospital bylaws. In Vilner v. Crocker National Bank (1979) 89 Cal.App.3d 732 [152 Cal.Rptr. 850], the court found that the practice of night deposits was of great public importance regarding the banking industry and its customers so that an exculpatory clause in a night deposit agreement was unenforceable. Also, common carriers provide a sufficiently important public service that exculpatory agreements are void. ( Rest.2d Contracts, § 195, com. a, p. 66.)

Measured against the public interest in hospitals and hospitalization, escrow transactions, banking transactions and common carriers, this transaction is not one of great public importance. [HN3] There is no compelling public interest in facilitating sponsorship and organization of the leisure activity of bicycle racing for public participation. The number of participants is relatively minute compared [***9] to the public use of hospitals, banks, escrow companies and common carriers. Also, the risks involved in running such an event certainly do not have the potential substantial impact on the public as the risks involved in banking, hospitals, escrow companies and common carriers. The service certainly cannot be termed one that “is often a matter of practical necessity for some members of the public.” ( Tunkl v. Regents of University of California, supra, 60 Cal.2d at p. 99.)

3. That the Service Is Open to Any Member of the Public.

It appears that anyone with a bicycle and the entrance fee who desires to enter the event can do so under standards established by the organizers.

[*1468] 4. The Economic Setting and “The Essential Nature of the Service.”

Item 4 seeks to measure the relative bargaining strengths of the parties. However, [**432] its prefaced by the words “the essential nature of the service.” (60 Cal.2d at pp. 99-100.) This ties in with item 2 above. The service provided herein can hardly be termed essential. It is a leisure time activity put on for people who desire to enter such an event. People are not compelled to enter the event [***10] but are merely invited to take part. If they desire to take part, they are required to sign the entry and release form. The relative bargaining strengths of the parties does not come into play absent a compelling public interest in the transaction.

5. Superior Bargaining Power and Standardized Adhesion Contract.

As set forth in item 4, this is not a compelled, essential service. The transaction raises a voluntary relationship between the parties. The promoters and organizers volunteer to hold a race if the entrants volunteer to take part for a nominal fee and signature on the entry and release form. These are not the conditions from which contracts of adhesion arise. Therefore, this item is not applicable.

6. The Provision of Control.

Compared to the patient who has placed himself in the exclusive control of the hospital in Tunkl, or the passenger who sits on a public conveyance, no such release of control exists here. Appellant retained complete control of himself and his bicycle and at any time could have dropped out of the race. Respondents had no control over how appellant rode his bicycle or approached the area in question except as to the general [***11] layout of the course.

Except for item 3, appellant’s situation does not fall within the guidelines set out in Tunkl. (60 Cal.2d at p. 92.) This situation does not present a transaction affecting the public interest. Therefore, there is no proscription for the release contained in the entry and release form herein. The trial court correctly relied upon the case of McAtee v. Newhall Land & Farming Co. (1985) 169 Cal.App.3d 1031 [216 Cal.Rptr. 465].

(3) (4) Finally, no triable issues of fact exist regarding whether the release form is clear and legible or whether the release form released respondents from the type of risk which caused appellant’s injuries. As previously indicated, the entire form is only three and one-half inches by eight inches and the only printing on the form other than the incidental information relating to the competitor is the release language. It is not buried in a lengthy document or hidden among other verbiage. The type is clear [*1469] and legible and in light of the fact it has no other language to compete with, its size is appropriate. The language is clear and unambiguous and the first paragraph concludes with “even though that liability [***12] may arise out of negligence or carelessness on the part of the persons or entities mentioned above.” The entities mentioned obviously include the South Bay Wheelmen who were the “promoters and sponsors” of the event, the United States Cycling Federation and the City of Hermosa Beach, “any involved municipalities.”

For the foregoing reasons, the judgment is affirmed.

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Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003)

Lemoine v Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209 (NY 2003)

Decided and Entered: December 11, 2003

93723

[*1]Nadine Lemoine, Appellant, v Cornell University, Respondent.

Memorandum and Order

Calendar Date: October 15, 2003

Before: Cardona, P.J., Crew III, Carpinello, Rose and Lahtinen, JJ.

Lo Pinto, Schlather, Solomon & Salk, Ithaca

(Raymond M. Schlather of counsel), for appellant.

Nelson E. Roth, Cornell University, Ithaca, for

respondent.

Cardona, P.J.

Appeal from an order of the Supreme Court (Mulvey, J.), entered January 2, 2003 in Tompkins County, which granted defendant’s motion to dismiss the complaint.

Plaintiff alleges that she sustained injuries on January 30, 2000, when she fell from the Lindseth Climbing Wall at defendant’s university during the first session of a seven-week basic rock climbing course offered by defendant’s outdoor education program. She had taken the same course eight years earlier, but had not taken any further instruction in the intervening years. Plaintiff registered, paid the tuition for the class, watched the orientation video describing safety procedures and signed a release holding defendant harmless from liability for, inter alia, any injuries caused by use of the climbing wall, including those caused by defendant’s own negligence. Plaintiff, as a climbing student, also signed a “Contract to Follow Lindseth Climbing Wall Safety Policies,” which included a promise that she would not climb above the yellow “bouldering” line without the required safety equipment. Prior to the accident, plaintiff, who was not wearing safety equipment, alleged that she was climbing with most of her body above the bouldering line. At the time, plaintiff and approximately 10 other students were under the supervision of two instructors. As she descended, instructor Michael Gilbert allegedly told her where to place her hands and feet. Plaintiff asserts that she lost her footing and fell to the floor [*2]below, which she described as “virtually unpadded.”[FN1] Thereafter, plaintiff commenced this action asserting negligence and gross negligence. Defendant moved to dismiss based upon the release and the safety contract, as well as a claim that plaintiff failed to set forth a cause of action [FN2]. Supreme Court granted defendant’s motion, prompting this appeal.

Plaintiff contends that the release and safety contract are void as against public policy by operation of statute, and, as a result, Supreme Court erred in granting defendant’s motion to dismiss. General Obligation Law § 5-326 states in pertinent part:

“Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.”

The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect (see Lux v Cox, 32 F Supp 2d 92, 99 [1998]; McDuffie v Watkins Glen Intl., 833 F Supp 197, 202 [1993]). Facilities that are places of instruction and training (see e.g. Millan v Brown, 295 AD2d 409, 411 [2002]; Chieco v Paramarketing, Inc., 228 AD2d 462, 463 [1996]; Baschuk v Diver’s Way Scuba, 209 AD2d 369, 370 [1994]), rather than “amusement or recreation” (see e.g. Meier v Ma-Do Bars, 106 AD2d 143, 145 [1985]), have been found to be outside the scope of the statute.

In assessing whether a facility is instructional or recreational, courts have examined, inter alia, the organization’s name, its certificate of incorporation, its statement of purpose and whether the money it charges is tuition or a fee for use of the facility (see Fusco v Now & Zen, 294 AD2d 466, 467 [2002]; Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 175-176 [2000]; Baschuk v Diver’s Way Scuba, supra at 370). Difficulties arise in this area of law in situations where a person is injured at a mixed-use facility, namely, one which provides both recreation and instruction. In some cases, courts have found that General Obligations Law § 5-326 voids the particular release where the facility provides instruction only as an “ancillary” [*3]function, even though it is a situation where the injury occurs while receiving some instruction (see e.g. Bacchiocchi v Ranch Parachute Club, supra at 175-176; Wurzer v Seneca Sport Parachute Club, 66 AD2d 1002, 1002-1003 [1978]). In other mixed-use cases, courts focused less on a facility’s ostensible purpose and more on whether the person was at the facility for the purpose of receiving instruction (Scrivener v Sky’s the Limit, 68 F Supp 2d 277, 281 [1999]; Lux v Cox, supra at 99).

Here, plaintiff points out that her enrollment in the class entitled her to a discounted fee rate in the event that she sought use of the climbing wall on nonclass days and, additionally, defendant allowed its students, alumni and graduates of the rock climbing course to use the wall as long as they paid the regular fee and watched the safety video. Consequently, plaintiff, citing Bacchiocchi v Ranch Parachute Club (supra), argues that since this facility is both recreational and instructional, General Obligations Law § 5-326 must apply. While it may be true that defendant’s facility is a mixed use one, given that defendant is unquestionably an educational institution, along with the fact that the brochure and course materials in the record indicate that the purpose of the climbing wall facility was “for education and training in the sport of rockclimbing,” it is apparent that any recreational use of the wall by nonstudents would be ancillary to its primary educational purpose (cf. Bacchiocchi v Ranch Parachute Club, supra). Furthermore, even focusing primarily on plaintiff’s purpose at the facility, it is undisputed herein that she enrolled in the course, paid tuition, not a fee, for lessons and was injured during one of her instructional periods (cf. Scrivener v Sky’s the Limit, supra at 281). Therefore, under all the circumstances, we find that Supreme Court properly found the statute to be inapplicable.

Having found that the release and safety contract were not voided by the statute, we now decide whether they are dispositive in this case (cf. Gross v Sweet, 49 NY2d 102, 107 [1979]). For example, the release unambiguously acknowledges, inter alia, the inherent risks of rock climbing and the use of the climbing wall, including the risk of injury from falling off the wall onto the floor below, which is what plaintiff describes as happening in this case. The release further holds defendant harmless from liability from any negligence, including that related to plaintiff’s supervised or unsupervised use of the wall. Given plaintiff’s signature and initials on these documents, we conclude that dismissal was proper.

Turning to plaintiff’s contention that, even if the statute is applicable, defendant’s motion to dismiss should not have been granted because the release and safety contract, standing alone, would not defeat a claim adequately alleging gross negligence (see Amica Mut. Ins. Co. v Hart Alarm Sys., 218 AD2d 835, 836 [1995]). Significantly, gross negligence is reckless conduct that borders on intentional wrongdoing and is “different in kind and degree” from ordinary negligence (Sutton Park Dev. Corp. Trading Co. v Guerin & Guerin Agency, 297 AD2d 430, 431 [2002]; see e.g. Green v Holmes Protection of N.Y., 216 AD2d 178, 178-179 [1995]). Where a complaint does not allege facts sufficient to constitute gross negligence, dismissal is appropriate (see Sutton Park Dev. Corp. Trading Co. v Guerin & Guerin Agency, supra at 431). Even assuming that plaintiff’s specific allegations are true, we agree with Supreme Court that they constitute only ordinary negligence and cannot survive the motion to dismiss.

The remaining arguments raised by plaintiff have been examined and found to be either unpersuasive or rendered academic by our decision herein.

Crew III, Carpinello, Rose and Lahtinen, JJ., concur.

ORDERED that the order is affirmed, with costs.

Footnotes

Footnote 1: The incident report form, which plaintiff disputes, states that she “decided to jump down.” Defendant’s employees also assert that the floor was padded and plaintiff was four feet from the ground at the time that she left the wall.

Footnote 2: We note that although defendant’s motion states that it is pursuant CPLR 3211 (a) (1) and (7), it appears from the language therein that it is also premised upon CPLR 3211 (a) (5).

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Wynne, Jr., v. Summerland, Inc., 2012 Conn. Super. LEXIS 2684 (Conn Super 2012)

Wynne, Jr., v. Summerland, Inc., 2012 Conn. Super. LEXIS 2684 (Conn Super 2012)

John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers v. Summerland, Inc. dba Camp Kenwood et al.

LLICV095006358S

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF LITCHFIELD AT LITCHFIELD

2012 Conn. Super. LEXIS 2684

November 1, 2012, Decided

November 2, 2012, Filed

NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

JUDGES: [*1] John W. Pickard, J.

OPINION BY: John W. Pickard

OPINION

MEMORANDUM OF DECISION

This is a wrongful death action arising out of the death of Hunter E. Brothers (“Brothers”), a thirteen-year-old camper at Camp KenWood, a summer youth camp in Kent, Connecticut. Brothers died while engaged in a mountain biking activity supervised by two counselors from the camp. The defendant, Summerland, Inc. d/b/a Camp KenWood operated the camp. The defendants, David B. Miskit and Sharon B. Miskit (“the Miskits”), are directors of Camp KenWood. All defendants have moved for summary judgment (#152). The plaintiff, John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers, objects (#158). The court heard oral argument on September 17, 2012.

I. Personal Liability of David and Sharon Miskit

The first basis of the motion for summary judgment is stated by the defendants as follows: “There is no genuine issue of material fact that David Miskit and Sharon Miskit, as officers of a corporation, do not incur personal liability for the corporation’s torts merely because of their official position. There is no evidence of any independently tortious conduct on the part of either David or Sharon Miskit, nor is there any evidence [*2] that Summerland served merely as their alter ego. Thus, summary judgment should enter in favor of David Miskit and Sharon Miskit.”

Paragraph 30 of the third count of the plaintiff’s complaint is based on negligence and is directed against the Miskits as follows: “David Miskit, as President of Summerland, and David and Sharon Miskit, as Directors of Camp KenWood, owed a duty of care to Brothers, because Brothers was a minor child who was entrusted to the care of David and Sharon Miskit, and under Section 19-13-B27a(s) of the Regulations of Connecticut State Agencies, which provides as follows: ‘The camp director shall be responsible at all times for the health, comfort and safety of campers.’” Thus, David Miskit is sued as President of Summerland, Inc. and as a director of Camp Kenwood. Sharon Miskit is sued only as a director of Camp Kenwood.

The Miskits claim that there is no genuine issue of material fact that they do not incur personal liability for the corporations’ torts merely because of their official position. The plaintiff argues that the Miskits, as directors of Camp KenWood, owed Hunter a duty of care imposed by the statutes and regulations of the State of Connecticut. The [*3] plaintiff did not present a serious argument that David Miskit owed a duty of care to Brothers merely because he was the President of Summerland, Inc.

Before discussing the Miskits’ basis for summary judgment, it is necessary to distinguish between directors of corporations and directors of youth camps. [HN1] The position of director of a youth camp is one which is provided for in the statutes which regulate youth camps. C.G.S. §19a-422(c) provides: “[T]here shall be adequate and competent staff, which includes the camp director or assistant director, one of whom shall be on site at all times the camp is in operation, activities specialists, counselors and maintenance personnel, of good character and reputation.” C.G.S. §19a-428(a) provides that: “The Commissioner of Public Health shall adopt regulations, in accordance with the provisions of chapter 54, relating to the safe operation of youth camps, including, but not limited to, personnel qualifications for director and staff . . .”

The regulations adopted by the Commissioner of Public Health pertaining to youth camps are found in Regs., Connecticut State Agencies §19-13-B27a. Subsection (n) of that regulation provides, in part: [HN2] “(1) No person [*4] shall establish, conduct or maintain a youth camp without adequate and competent staff. (2) The camp director shall be over the age of twenty-one and of good character, shall not have been convicted of any offense involving moral turpitude, shall be certified as mentally competent by a physician, shall not use improperly any narcotic or controlled drug, and shall uphold and maintain the standards required under the Youth Camping Act. Except for those persons who have already served at least one summer as a camp director, a camp director shall have at least sixteen weeks administrative or supervisory experience, in an organized camp or in lieu thereof equivalent training or experience in camping satisfactory to the commissioner.” Subsection (s) of that regulation provides [HN3] “Responsibility of management. The camp director shall be responsible at all times for the health, comfort and safety of campers and staff and shall have responsibility for maintaining in good repair all sanitary appliances on the camp ground. He shall promptly prosecute or cause to be ejected from such ground any person who willfully or maliciously damages such appliances.”

[HN4] The statutory and regulatory scheme with [*5] respect to youth camps is clear that the director of a youth camp must be an individual, not a corporation. Also, the position of director of a youth camp is distinct from the position of director of the corporation which owns and operates the summer camp. A youth camp director is an employee and/or an agent of the camp when performing his or her duties. In summary, the director of a youth camp functions as the chief on-site official of the camp and is charged with certain responsibilities including to the safety of campers. Therefore, the statutes and regulations create a duty which the director owes to campers who attend the camp.

Turning to the first basis for summary judgment, the defendants are correct that David Miskit, as President of Summerland, Inc., cannot be liable for the negligence of the corporation absent evidence that he used the corporation as his alter ego. The plaintiff has not made the allegations which would be necessary to pierce the corporate veil. The real ground for the liability of the Miskits rests not on their status as directors or officers of Summerland, Inc., or on piercing the corporate veil, but upon their liability as directors of Camp KenWood.

The motion [*6] for summary judgment and the supporting brief never address the real ground of liability alleged by the plaintiff against the Miskits that as directors of Camp Kenwood they breached their statutory and regulatory duty to be responsible for the health, comfort and safety of the campers including Brothers. Instead, the defendants focus on whether the Miskits can be liable based upon their official capacities at Summerland, Inc. The last two sentences of the defendants’ brief on this point reads: “In short, David and Sharon Miskit have been named as party defendants merely because they are officers of Summerland, Inc. Officers of a corporation, however, do not incur personal liability for its torts merely because of their official position. Inasmuch as there is no evidence of any independently tortious conduct on the part of either David or Sharon Miskit, nor any evidence that Summerland served as their alter ego, they are entitled to summary judgment on all of the plaintiff’s claims.”

[HN5] The statutes and regulations of the State of Connecticut create a duty on the part of camp directors to care for the “health, comfort and safety of campers.” As co-directors of Camp KenWood, the Miskits [*7] are alleged to have breached this duty.1 The documentary evidence submitted by the plaintiff creates a genuine issue of material fact about whether, in fact, the Miskits breached their duty. ” [HN6] Practice Book §17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).

1 In paragraph thirty-one of the third count the plaintiffs allege that David and Sharon Miskit breached their duty of care to Hunter through their negligence, in that:

a. They failed to adequately supervise and train Summerland employees with respect to the use of mountain bicycles by campers, CPR techniques and emergency first aid skills:

b. They failed to provide adequate instruction to Camp KenWood’s campers, including Brothers, in the safety precautions necessary for mountain bicycle trips over steep [*8] and uneven terrain, including but not limited to the negotiation or avoidance of dangerous hills and curves and the adequate securing of a helmet:

c. they failed to have a policy which pre-screened and approved appropriate areas for mountain bicycle riding for campers of various ages;

d. They failed to have a policy that prohibited Camp KenWood’s employees from taking young campers on off-camp premises mountain bicycle trips that were not safe for young children.”

II. Open and Obvious

The defendants’ second basis for summary judgment is that, because the geography of Bald Hill Road was an open and obvious condition, the defendants had no duty to warn Brothers about it. The defendants argue that, as a matter of law, the court should determine that there is clear and undisputed evidence that the risk of riding a bicycle down Bald Hill Road was so open and obvious to thirteen-year-old Brothers that it would negate any duty to warn on the part of the two counselors who were supervising her. In support of that proposition the defendants have presented the court with portions of deposition transcripts and other documents. They argue that the grade and contours of Bald Hill Road were easily observable [*9] by Brothers. Also, the two counselors testified that they stopped with Brothers at the top of Bald Hill Road and told her that the hill got steeper near the bottom and that she would need to control her speed with her brakes. Based upon this discussion, the defendants argue that Brothers was actually aware of the condition of the road. The defendants have cited the court to various cases in which courts have held that dangerous conditions were open and obvious as a matter of law.

The plaintiff argues that the issue of whether the condition of Bald Hill Road is open and obvious is a genuine question of fact which cannot be decided on a motion for summary judgment. I agree. The documentary evidence about Bald Hill Road presents a genuine issue of fact as to whether the steep part of Bald Hill Road can be seen from the top of the hill. Brothers had never been on Bald Hill Road. Whether the discussion she had with the counselors at the top of the hill was sufficient to alert her to the danger is a question of fact as well.

Furthermore, unlike most of the cases cited by the defendants, this is not a premises liability case. There are nine separate allegations of negligence directed against [*10] Summerland, Inc., only one of which relates to a failure to warn. The defendants have not addressed these other allegations of negligence in the motion for summary judgment.

III. Conclusion

For the reasons given above, the motion for summary judgment is denied.

BY THE COURT,

John W. Pickard

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Lloyd v. Bourassa, 2002 Me. Super. LEXIS 132

Lloyd v. Bourassa, 2002 Me. Super. LEXIS 132

C. Gary Lloyd, Plaintiff v. Tom Bourassa, Sugarloaf Mountain Corp., and United States Cycling, Inc. d/b/a National Off-Road Bicycle Association, Defendants

Civil Action Docket No. 01-CV-039

Superior Court of Maine, Hancock County

2002 Me. Super. LEXIS 132

August 20, 2002, Decided

August 21, 2002, Filed and Entered

SUBSEQUENT HISTORY: Affirmed by, Remanded by, Sub nomine at Lloyd v. Sugarloaf Mt. Corp., 2003 ME 117, 2003 Me. LEXIS 131 (Sept. 25, 2003)

JUDGES: Ellen A. Gorman.

OPINION BY: Gorman

OPINION

ORDER

PROCEDURAL HISTORY

On June 22, 1995, C. Gary Lloyd applied for membership in “USCF . NORBA . NCCA.” After filling in some identifying information on the first page of the application form, Lloyd placed his signature on the second page, under a section entitled “Acknowledgment of Risk and Release of Liability.” That section contained the following language:

Please accept this as my application for membership and a USCF, NORBA and/or NCCA license.

I acknowledge that cycling is an inherently dangerous sport in which I participate at my own risk and that the United States Cycling Federation, Inc. is a non-profit corporation formed to advance the sport of cycling, the efforts of which directly benefit me. In consideration of the agreement of the USCF to issue a license to me, hereby on behalf of myself, my heirs, assigns and personal representatives, I release and forever discharge the USCF, its employees, agents, members, [*2] sponsors, promoters and affiliates from any and all liability, claim, loss, cost or expense, and waive and promise not to sue on any such claims against any such person or organization, arising directly or indirectly from or attributable in any legal way to any negligence, action or omission to act of any such person or organization in connection with sponsorship, organization or execution of any bicycle racing or sporting event, including travel to and from such event, in which I may participate as a rider, team member or spectator.

On August 11, 1995, with his NORBA membership in hand, Lloyd traveled to Kingfield, Maine to participate in a mountain biking event sponsored by the Sugarloaf Mountain Corporation known as the Widowmaker Challenge. At Kingfield, Lloyd signed the Official Entry Form, which included the following language under the heading of “Athlete’s Entry & Release Form 1“:

I fully realize the dangers of participating in a bicycle race and fully assume the risks associated with such participation including, by way of example, and not limitations, the following: the dangers of collision with pedestrians, vehicles, other racers and fixed or moving objects; the [*3] dangers arising from surface hazards, equipment failure, inadequate safety equipment and weather conditions; and the possibility of serious physical and/or mental trauma or injury associated with athletic cycling competition.

I hereby waive, release and discharge for myself, my heirs, executors, administrators, legal representatives, assigns, and successors in interest (hereinafter collectively “successors”) any and all rights and claims which I have or which may hereafter occur to me against the sponsors of this event, the National Off-Road Bicycle Association, the promoter and any promoting organization(s), property owners, law enforcement agencies, all public entities, and special districts and…. through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event . . . .

I agree, for myself and successors, that the above representations are contractually binding, and are not mere recitals, and that should I or my successors assert my claim in contravention of this agreement, I or my successors shall [*4] be liable for the expenses incurred (including legal fees) incurred by the other party or parties in defending, unless the other parties are financially adjudged liable on such claim for willful and wanton negligence.

1 To avoid confusion, the “release” signed in June shall be referred to as the “Membership Release,” and the release signed in August shall be referred to as the “Event Release.”

Lloyd registered to participate in both the cross-country race and the downhill challenge. While completing a mandatory practice run on August 11, 1995, Lloyd was involved in a collision with another participant, Tom Bourassa.

On August 10, 2001, Lloyd filed suit against Bourassa, Sugarloaf Mountain Corporation, and United States Cycling Federation d/b/a National Off-Road Bicycle Association, asserting negligence claims against all three. Soon thereafter, Lloyd learned that he had failed to name the appropriate corporate defendant, and filed a motion to amend the complaint. Over objection, that motion was granted, [*5] and U.S.A. Cycling, Inc. replaced United States Cycling Federation d/b/a National Off-Road Bicycle Association.

In their Answers, both Sugarloaf and U.S.A. Cycling responded that Lloyd’s claims were barred by the releases quoted above. In addition, both asserted Counterclaims against Lloyd for breaching the terms of the releases. Both demanded Lloyd be held liable for any expenses they incurred in defending his suit.

On January 25, 2002, Lloyd filed a Motion for Judgment on the Pleadings with respect to Defendants’ Counterclaims and Affirmative Defenses of Release and Waiver. Sugarloaf Mountain Corporation opposed that motion and filed its own Motion for Summary Judgment on March 11, 2002. U.S.A. Cycling also opposed the plaintiff’s motion, and filed its Motion for Summary Judgment on April 11, 2002. All of the motions requested that the court review the language of the releases and determine whether and how it affected the outcome of this suit. A hearing on all three motions was held on July 3, 2002. Any findings included below are based upon the properly submitted affidavits and statements of material fact. Specifically excluded from that category is the affidavit form Attorney [*6] Greif.

DISCUSSION

1. Plaintiff’s Motion for Judgment on the Pleadings

The plaintiff argues that he is entitled to judgment on the defendants’ counterclaims and on their affirmative defenses of release and waiver because “the release, 2” by its terms, does not apply to U.S.A. Cycling, does not apply to the facts of this case, does not protect the defendants from their own negligence, and is unenforceable as contrary to public policy.

2 Plaintiff did not address the language of the Membership Release in his motion.

In considering a motion for judgment on the pleadings, the court is required to accept all of the responding party’s pleadings as true, and draw all reasonable inferences in its favor. Judgment is only appropriate if the responding party can prove no set of facts that would entitle it to relief. The plaintiff has failed to meet that burden.

Applicability to U.S.A. Cycling

In support of his first assertion, Lloyd argued that, because the Event Release does not mention U.S.A. Cycling, [*7] that defendant is not within the category of potentially released entities. With its response to this motion, U.S.A. Cycling filed an affidavit by Barton Enoch to establish that NORBA, a named sponsor of the Widowmaker, was the off-road division of U.S.A. Cycling, Inc. The clear language of the Entry Release covers sponsors, including U.S.A. Cycling d/b/a NORBA.

As mentioned above, Lloyd applied for membership in the United States Cycling Federation (USCF) and NORBA in June 1995. Soon thereafter, USCF merged into a new corporation, U.S.A. Cycling, Inc, that assumed all of its rights and responsibilities. By signing the Membership Release, Lloyd released U.S.A. Cycling, Inc. from responsibility for any accidents that might occur during his participation in any race events it sponsored.

Definition of Event

Lloyd has argued that the strictly construed language of the Event Release does not cover accidents that occur during the training run. In support of this argument, he has cited Doyle v. Bowdoin College, 403 A.2d 1206 (Me. 1979.) In that case, the Law Court said “releases absolving a defendant of liability for his own negligence must expressly spell out [*8] ‘with the greatest particularity’ the intention of the parties contractually to extinguish negligence liability.” Doyle, at 1208. Contrary to the plaintiff’s assertions, the language of the Event Release does precisely that:

I hereby waive, release and discharge for myself, my heirs, executors, administrators, legal representatives, assigns, and successors in interest (hereinafter collectively “successors”) any and all rights and claims which I have or which may hereafter occur to me against the sponsors of this event, the National Off-Road Bicycle Association, the promoter and any promoting organization(s), property owners, law enforcement agencies, all public entities, and special districts and properties . . . . through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event . . . . (emphasis added)

All parties have agreed that the training run was a mandatory part of the event. To interpret the Event Release in such a convoluted fashion that it excludes a mandatory part of the [*9] event from the term “event” defies logic and is contrary to the intent of the parties as demonstrated by the plain language of the release. Hardy v. St. Clair, 1999 ME 142, 739 A.2d 368.

Public Policy

Although releases of liability are “traditionally disfavored,” in Maine that disfavor has resulted in strict interpretation rather than prohibition. Doyle v. Bowdoin College, Id. The cases cited by plaintiff in support of his contrary argument are from other jurisdictions and do not accurately describe the law in Maine. When asked to consider the issue raised here, both Maine state courts and the First Circuit have consistently enforced the language of releases. See, e.g., Hardy v. St. Clair, 1999 ME 142, 739 A.2d 368; McGuire v. Sunday River Skiway Corp., 1994 WL 505035 (D.Me.)(Hornby, J.), aff’d 47 F.3d 1156 (1st Cir. 1995). Despite his reference to a “contract of adhesion,” Lloyd was not compelled to sign either release. He chose to sign both because he wanted to participate in an inherently risky sport. He is free to make such choices, but must also accept responsibility for what happens as a result [*10] of that choice.

For the reasons stated above, plaintiff’s motion for judgment on the pleadings is denied.

2. Defendants’ Motions for Summary Judgment

The Law Court has addressed motions for summary judgment on many occasions:

In reviewing a summary judgment, we examine the evidence in the light most favorable to the nonprevailing party to determine whether the record supports the conclusion that there is no genuine issue of material fact and that the prevailing party is entitled to a judgment as a matter of law. (citation omitted) In testing the propriety of a summary judgment, we accept as true the uncontroverted facts properly appearing in the record. (citation omitted)

Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, P5, 711 A.2d 842, 844. The issue is not whether there are any disputes of fact, but whether any of the disputes involve a “genuine” issue of “material” fact. See Rule 56(c). After reviewing the record provided with these standards in mind, the court must conclude that there are no genuine issues of disputed fact.

Both Lloyd and the defendants agree that Lloyd was required to complete a practice run in order to participate [*11] in the Widowmaker Challenge. All of them agree that Lloyd signed both releases before he took that mandatory run, and all agree that he was involved in a collision with another bicyclist during that run. As was discussed above, the practice run and any problems encountered during it are covered by the terms of the releases Lloyd signed. The Membership Release contains express language releasing claims arising from negligence. The Entry Release contains express language describing the types of accidents or dangers covered by the release, including “the dangers of collision with … other racers.” The collision between Lloyd and Bourassa was precisely the type of accident contemplated by the parties and waived by Lloyd in both releases.

Lloyd has failed to refer to any evidence in the record that might support his theory that that the Event Release should be seen as a substitution or novation of the Membership Release. Without such evidence, the court may not presume that the parties intended that one contract be substituted for the other.

Lloyd has asserted that the reference in the Event Release to an exception for “willful and wanton negligence” precludes summary judgment. However, [*12] no such tort has yet been recognized in Maine, so no jury could be asked to determine whether the defendants had acted with willful or wanton negligence. That exception is inapplicable in this jurisdiction. In addition, that language refers only to the portion of the Release that discusses the defendants’ right to recover expenses, including legal fees. On the record presented, there are no material issues of disputed fact concerning the language of the releases.

U.S.A. Cycling was a sponsor and Sugarloaf was a promoter of the race. As a matter of law, the court finds that the mandatory practice run was included within the language of the Releases, that the releases are clear and unambiguous, and that the accident Lloyd claims falls entirely within the types of harms contemplated by the parties at the time the releases were signed. There is nothing left to be litigated on either plaintiff’s Complaint against defendants U.S.A. Cycling and Sugarloaf, or on their Counterclaims against him.

For the reasons stated above, the court finds that the releases signed by Lloyd individually and collectively bar any civil action against either U.S.A. Cycling, d/b/a NORBA or against Sugarloaf for [*13] the injuries Lloyd allegedly sustained on August 11, 1995. Summary judgment on plaintiff’s Complaint is granted to U.S.A. Cycling, d/b/a NORBA and to Sugarloaf. In addition, summary judgment against Lloyd on their Counterclaims is granted to both U.S.A. Cycling, d/b/a NORBA and. Within thirty (30) days, counsel for these defendants shall submit proof of expenses, including attorney fees, incurred in defense of this action.

ORDER

Plaintiff’s motion for judgment on the pleadings is denied. The motions for summary judgment filed by defendants U.S.A. Cycling and Sugarloaf are granted. Judgment is granted to those defendants on Counts II and III of plaintiff’s amended complaint.

DOCKET ENTRY

The Clerk is directed to incorporate this Order in the docket by reference, in accordance with M.R.Civ.P. 79(a).

DATED: 20 August 2002

Ellen A. Gorman

WordPress Tags: Lloyd,Bourassa,Super,LEXIS,Gary,Plaintiff,Sugarloaf,Mountain,Corp,States,National,Road,Bicycle,Association,Defendants,Civil,Action,Docket,Superior,Court,Maine,Hancock,August,SUBSEQUENT,HISTORY,Sept,JUDGES,Ellen,Gorman,OPINION,ORDER,PROCEDURAL,June,membership,USCF,NORBA,NCCA,information,signature,Acknowledgment,Risk,Release,Federation,corporation,efforts,agreement,heirs,employees,agents,promoters,cost,expense,person,negligence,omission,connection,sponsorship,execution,event,rider,team,member,spectator,Kingfield,Widowmaker,Challenge,Official,Entry,Form,Athlete,dangers,participation,example,limitations,collision,pedestrians,vehicles,racers,equipment,failure,trauma,injury,competition,executors,administrators,successors,promoter,owners,enforcement,agencies,entities,districts,events,representations,recitals,contravention,participant,Soon,defendant,complaint,Over,objection,Answers,addition,Counterclaims,Both,January,Motion,Judgment,Pleadings,Affirmative,Defenses,Waiver,Summary,March,April,outcome,findings,affidavits,statements,fact,category,affidavit,Attorney,Greif,DISCUSSION,policy,inferences,relief,assertion,response,Barton,Enoch,accidents,Definition,argument,Doyle,Bowdoin,College,intention,Contrary,assertions,properties,emphasis,logic,Hardy,Clair,Public,Although,interpretation,prohibition,jurisdictions,Circuit,McGuire,River,Skiway,Hornby,Despite,reference,adhesion,Motions,conclusion,citation,Champagne,Rule,accident,theory,substitution,exception,tort,jury,jurisdiction,Releases,injuries,Within,Counts,Clerk,accordance,hereby,hereinafter,three,whether


Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741

Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741

Morgan Kelly; Pamela Kelly; and Terry Kelly, Plaintiffs, v. United States of America, Defendant.

NO. 7:10-CV-172-FL

United States District Court for the Eastern District of North Carolina, Southern Division

2011 U.S. Dist. LEXIS 89741

August 10, 2011, Decided

August 11, 2011, Filed

COUNSEL: [*1] For Morgan Kelly, Pamela Kelly, Terry Kelly, Plaintiffs: Steven Michael Stancliff, LEAD ATTORNEY, James L. Chapman, IV, Crenshaw, Ware and Martin, P.L.C., Norfolk, VA.

For UNITED STATES OF AMERICA, Defendant: R. A. Renfer, Jr., W. Ellis Boyle, LEAD ATTORNEYS, U. S. Attorney’s Office, Raleigh, NC.

JUDGES: LOUISE W. FLANAGAN, Chief United States District Judge.

OPINION BY: LOUISE W. FLANAGAN

OPINION

ORDER

This matter comes before the court on plaintiffs’ motion to strike affirmative defenses pursuant to Federal Rule of Civil Procedure 12(f), or in the alternative, for partial judgment pursuant to Federal Rule of Civil Procedure 12(c) (DE # 20). Plaintiffs’ motion has been fully briefed. Also before the court is the parties’ joint request for hearing on the motion (DE # 24). For the reasons that follow, plaintiffs’ motion to strike is allowed in part and denied in part. The companion joint motion for hearing is denied.

STATEMENT OF THE CASE

This is an action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. (“FTCA”), to recover damages for injuries allegedly suffered by Morgan Kelly, a minor, at United States Marine Corps Base Camp Lejeune (“Camp Lejeuene”). Morgan Kelly’s parents, Pamela Kelly and Terry [*2] Kelly, join their daughter as plaintiffs in this action.

Plaintiffs filed complaint on September 2, 2010. The government filed answer on December 29, 2010, stating several affirmative defenses. The court conducted a telephonic scheduling conference on February 23, 2011, and afterward entered a preliminary case management order providing for an initial period of written discovery to be completed by April 1, 2011, and for all Rule 12 motions to be filed by May 15, 2011. Further discovery in the case was stayed pending resolution of any motions pursuant to Rule 12.

On May 15, 2011, plaintiffs filed the instant motion to strike the government’s affirmative defenses pursuant to Rule 12(f), or in the alternative, for partial judgment pursuant to Rule 12(c). The motion has been fully briefed. On July 1, 2011, the parties filed joint request for hearing on the motion. On July 6, 2011, the government filed motion for judgment on the pleadings pursuant to Rule 12(c). Plaintiffs were granted an extension of time to respond, and that Rule 12 motion is not yet ripe.

STATEMENT OF THE UNDISPUTED FACTS

In July, 2007, Morgan Kelly, then a fifteen-year-old high school student, was a cadet in the Navy Junior [*3] Reserve Officer Training Corps (“NJROTC”) program at her high school. As part of the program, she voluntarily attended an orientation visit to Camp Lejeune. The United States Marines Corps (“the Marines”) required all NJROTC cadets attending the orientation visit to sign a waiver, which was drafted by the Marines, before being allowed to enter Camp Lejeune. 1 The Marines also required the parent or guardian of any cadet who was a minor to sign the waiver. Morgan Kelly and her mother, Pamela Kelly, both signed the waiver, which is dated July 20, 2007.

1 The waiver is entitled “Waiver of Liability and Assumption of Risk Agreement United States Marine Corps” and states that the individual promises to waive all rights and claims for damages and any other actions arising out of participation in the event, or use of any Marine Corps base, Camp Lejeune, North Carolina, or government equipment or facilities in conjunction with such participation. (Pls.’ Mot., Ex. 1). The waiver further stipulates that the individual assumes the risks involved in the activities and agrees to hold the government harmless for any resulting injury. Id.

The NJROTC group arrived at Camp Lejeune on July 23, 2007. On [*4] July 25, 2007, Morgan Kelly participated in scheduled training activities at the confidence course. On the last obstacle, called the “Slide for Life” (“SFL”), Morgan Kelly fell as she was climbing and suffered unspecified but allegedly serious injuries. Plaintiffs now seek damages in excess of ten million dollars ($10,000,000.00).

DISCUSSION

A. Joint Request for Hearing

Counsel for the parties have suggested to the court that, due to the complexity of the matters at issue in plaintiffs’ motion, oral argument would aid the court in its determination of the motion. On this basis, the parties jointly request a hearing on the motion. [HN1] Local Civil Rule 7.1(i) provides that hearings on motions may be ordered by the court in its discretion, but that motions shall be determined without a hearing unless the court orders otherwise. The court is sensitive to counsel’s request, however, hearing is not necessary on this thoroughly briefed motion. Counsel have been quite articulate in their respective written presentations. Accordingly, the parties’ request for hearing on plaintiffs’ motion is denied. The court turns its attention below to the underlying motion.

B. Motion to Strike or for Judgment on the [*5] Pleadings

1. Standard of Review

Plaintiffs have moved, pursuant to Rule 12(f), to strike the government’s fourth and seventh affirmative defenses. 2 [HN2] Rule 12(f) permits a district court, on motion of a party or on its own initiative, to strike from a pleading an “insufficient defense.” Fed.R.Civ.P. 12(f). “A defense is insufficient if it is clearly invalid as a matter of law.” Spell v. McDaniel, 591 F.Supp. 1090, 1112 (E.D.N.C. 1984). “Rule 12(f) motions are generally viewed with disfavor because striking a portion of a pleading is a drastic remedy and because it is often sought by the movant simply as a dilatory tactic.” Waste Management Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (internal citations omitted). Therefore, motions to strike are rather strictly considered, see Godfredson v. JBC Legal Group, P.C., 387 F.Supp.2d 543, 547 (E.D.N.C. 2005), and the court is required to “view the pleading under attack in a light most favorable to the pleader.” Racick v. Dominion Law Associates, 270 F.R.D. 228, 232 (E.D.N.C. 2010). “Nevertheless, a defense that might confuse the issues in the case and would not, under the facts alleged, constitute a valid defense to the action [*6] can and should be deleted.” Waste Management, 252 F.3d at 347 (internal citations omitted).

2 As noted above, plaintiffs move in the alternative for partial judgment pursuant to Rule 12(c). The court, however, will examine the arguments through the lens of Rule 12(f), because [HN3] “a Rule 12(f) motion to strike is more fitting for situations, such as the one at bar, where a plaintiff challenges only some of the defenses raised in a defendant’s pleading.” Bradshaw v. Hilco Receivables, LLC, 725 F.Supp.2d 532, 534 (D.Md. 2010) (noting that “Rule 12(f) serves as a pruning device to eliminate objectionable matter from an opponent’s pleadings and, unlike the Rule 12(c) procedure, is not directed at gaining a final judgment on the merits”).

2. Analysis

Plaintiffs move to strike the government’s fourth affirmative defense, which asserts that the court lacks subject matter jurisdiction to hear plaintiffs’ claims pursuant to [HN4] the Feres doctrine, which provides the government with immunity from tort claims advanced by armed services personnel. See Feres v. U.S., 340 U.S. 135, 146, 71 S. Ct. 153, 95 L. Ed. 152 (1950). It is undisputed that Morgan Kelly has never been a member of the armed forces. Pls.’ Mot., at 5; Govt’s Resp. in Opp’n, [*7] at 1 n. 1. Therefore, as the government concedes, it is not entitled to defend on the basis of the Feres doctrine. 3 Because the fourth affirmative defense does not constitute a valid defense to the action under the facts alleged, see Waste Management, 252 F.3d at 347, plaintiffs’ motion to strike in this part is granted. The government’s fourth affirmative defense is stricken from its answer.

3 The government also informs that it has abandoned this defense. Govt’s Resp. in Opp’n, at 1 n. 1.

Plaintiffs also move to strike the government’s seventh affirmative defense. At issue is whether, under North Carolina law, 4 the liability waiver signed by the minor, Morgan Kelly, on her own behalf, and also by Pamela Kelly on the minor’s behalf, is enforceable. It is well-established [HN5] under North Carolina law that liability waivers are generally enforceable. See Hall v. Sinclair Refining Co., 242 N.C. 707, 709, 89 S.E.2d 396, 397 (1955) (“[A] person may effectively bargain against liability for harm caused by his ordinary negligence in the performance of a legal duty.”). North Carolina courts strictly construe the terms of exculpatory agreements against the parties seeking to enforce them. Id. Nevertheless, [*8] courts will enforce such contracts unless the contract (1) is violative of a statute; (2) is gained through inequality of bargaining power; or (3) is contrary to a substantial public interest. Waggoner v. Nags Head Water Sports, Inc., 141 F.3d 1162 (4th Cir. 1998) (unpublished table decision); see also Strawbridge v. Sugar Mountain Resort, Inc., 320 F.Supp.2d 425, 432 (W.D.N.C. 2004).

4 [HN6] Under the FTCA, the government is liable in tort “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. In such actions, “federal courts apply the substantive law of the state in which the act or omission giving rise to the action occurred.” Myrick v. U.S., 723 F.2d 1158, 1159 (4th Cir. 1983). Because the alleged act or omission giving rise to the action occurred in North Carolina, North Carolina law governs the nature and extent of the government’s liability for plaintiffs’ injuries. The parties further agree that North Carolina law governs the interpretation and enforceability of the waiver. Pls.’ Mot., at 8-9, Govt’s Resp. in Opp’n, at 2, n. 2.

Although liability waivers are generally enforceable, it is beyond dispute that Morgan Kelly’s own waiver [*9] is unenforceable. [HN7] Under North Carolina law, the contract of a minor generally is not binding on him. See Baker v. Adidas America, Inc., 335 Fed.App’x. 356, 359 (4th Cir. 2009); see also Creech ex rel. Creech v. Melnik, 147 N.C. App. 471, 475, 556 S.E.2d 587, 590 (2001) (citing Freeman v. Bridger, 49 N.C. 1 (1956)). The rule is based on the theory that minors do not have contractual capacity. Nationwide Mut. Ins. Co. v. Chantos, 293 N.C. 431, 443, 238 S.E.2d 597, 605 (1977). “[B]ecause a minor lacks legal capacity there cannot be a valid contract in most transactions, unless it is for necessaries or the statutes make the contract valid.” Creech, 147 N.C. App. at 477, 238 S.E.2d at 591. Accordingly, contracts entered into by a minor, except those for necessities or authorized by statute, are voidable at the election of the minor, and may be disaffirmed. Id. (citing Jackson v. Beard, 162 N.C. 105, 78 S.E. 6 (1913)). Having disaffirmed the waiver by filing complaint, Morgan Kelly’s own contract purporting to waive her personal injury claims is not enforceable. Therefore, the seventh affirmative defense, to the extent it reaches the actions of minor plaintiff Morgan Kelly, is clearly invalid [*10] as a matter of law and therefore insufficient. See Spell, 591 F.Supp. at 1112. For this reason, the court allows plaintiff’s motion to strike the seventh affirmative defense as it pertains to any waiver by Morgan Kelly.

The question now turns on whether, under North Carolina law, a liability waiver signed by a parent on behalf of a minor child 5 is enforceable, or whether such a waiver is unenforceable as contrary to a substantial public interest under the third Waggoner factor. 6 The parties agree that there is no controlling precedent, and the court similarly is unaware of any. The court therefore must forecast how the North Carolina Supreme Court would rule on the question. See Liberty Mut. Ins. Co. v. Triangle Indus., 957 F.2d 1153, 1156 (4th Cir. 1992) (holding that [HN8] where state law is unclear, federal courts must predict the decision of the state’s highest court). Because no North Carolina case or statute directly addresses the issue, the court turns to the law of other jurisdictions for persuasive guidance. Each party relies on a series of decisions from other jurisdictions that fall on either side of the issue. The cases indicate the difficulty in reaching the proper balance [*11] between the important interests and policies at stake.

5 In North Carolina, a minor is defined as any person who has not reached the age of eighteen (18) years. N.C. Gen. Stat. 48A-2.

6 Plaintiffs also argue that the liability waiver is unenforceable under the first two prongs of the Waggoner analysis. Plaintiffs first assert that enforcement of the waiver would violate a statute. However, they point to no specific statute that would be violated by enforcement of the waiver, relying instead on legislative history reciting the purposes of the NJROTC program. The court is unwilling to find that the waiver is violative of statute on this basis, where plaintiffs can offer no statute in clear support of their argument.

Plaintiffs also claim that the waiver was obtained through inequality of bargaining power because plaintiffs were not free to negotiate different terms. In Waggoner, plaintiff rented a jet ski from defendant, signed a liability waiver as part of the rental agreement, and was injured while using the rented equipment. The Fourth Circuit rejected plaintiff’s argument that the waiver was obtained through inequality of bargaining power, reasoning that “[i]t is true that Waggoner could [*12] not negotiate the terms of the contract, but either had to sign the exculpatory clause or decline to rent the jet ski; however, this supposed inequality of bargaining power . . . is more apparent than real. It is not different from that which exists in any other case in which a potential seller is the only supplier of the particular article or service desired. [HN9] Only where it is necessary for [the plaintiff] to enter into the contract to obtain something of importance to him which for all practical purposes is not obtainable elsewhere will unequal bargaining power void an exculpatory clause.” Waggoner, 141 F.3d at 1162. In this case as well, the supposed inequality of bargaining power is more apparent than real, where Morgan Kelly was free to forego participation in the voluntary program. The court therefore declines to find the waiver unenforceable based on the second Waggoner factor.

As plaintiffs correctly note, [HN10] the majority rule in the United States is that parents may not bind their children to pre-injury liability waivers by signing the waivers on their children’s behalf. See Galloway v. State, 790 N.W.2d 252, 256 (Iowa 2010) (listing cases and concluding that “the majority of state [*13] courts who have examined the issue . . . have concluded public policy precludes enforcement of a parent’s pre-injury waiver of her child’s cause of action for injuries caused by negligence“); see also Kirton v. Fields, 997 So.2d 349, 356 (Fla. 2003) (listing cases, and stating that “[i]n holding that pre-injury releases executed by parents on behalf of minor children are unenforceable for participation in commercial activities, we are in agreement with the majority of other jurisdictions”).

[HN11] Many of the states holding that parents cannot bind children to pre-injury releases have reached that conclusion by relying on legal principles that also are recognized in North Carolina. For example, in many states, a parent may not bind a minor child to a post-injury settlement agreement releasing tort claims without court approval. See Galloway, 790 N.W.2d at 257 (noting that, under Iowa law, parents may not compromise and settle a minor child’s tort claim without court approval, and that therefore it would not make sense to permit a parent to prospectively release a child’s cause of action); see also J.T. ex rel. Thode v. Monster Mountain, LLC, 754 F.Supp.2d 1323, 1328 (M.D. Ala. 2010) (observing [*14] that under Alabama law, a parent may not bind a child to a settlement without court approval); see also Scott v. Pacific West Mountain Resort, 119 Wash.2d 484, 494, 834 P.2d 6, 11-12 (1992) (concluding that since, under Washington law, “a parent generally may not release a child’s cause of action after injury, it makes little, if any, sense to conclude a parent has the authority to release a child’s cause of action prior to an injury”).

Similarly, under North Carolina law, a parent cannot bind his minor child by settling a tort claim and executing a release of liability on the minor’s behalf. Sell v. Hotchkiss, 264 N.C. 185, 191, 141 S.E.2d 259, 264 (1965). “The settlement of an infant’s tort claim becomes effective and binding upon him only upon judicial examination and adjudication.” Id. Indeed, “failure to present proof of court approval of a [settlement] contract on behalf of a minor is fatal at any stage of a proceeding seeking to enforce such a contract.” Creech, 147 N.C. App. at 475, 556 S.E.2d at 590. It seems, therefore, that the North Carolina Supreme Court would join those other state courts listed above in holding that, in general, a parent may not bind a child to a pre-injury [*15] liability waiver by signing the liability waiver on the child’s behalf.

[HN12] Although the majority rule is that parents may not bind their children to pre-injury liability waivers, many states recognize an exception where the liability waiver is in the context of non-profit activities sponsored by schools, volunteers, or community organizations. See Monster Mountain, 754 F.Supp.2d at 1327 (noting that “the only published decisions from other jurisdictions that have bound children to pre-injury releases executed by a parent or guardian on the child’s behalf have done so in the context of a minor’s participation in school-run or community-sponsored activities”). 7 For example, courts have upheld liability waivers in the context of school-sponsored fundraising events, high school athletic programs, municipal athletic programs, and voluntary extracurricular programs. See Gonzalez v. City of Coral Gables, 871 So.2d 1067, 1067-68 (Fla. Dist. Ct. App. 2004); Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 747 (2002); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 1998 Ohio 389, 696 N.E.2d 201 (1998); Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal. Rptr. 647 (1990).

7 Indeed, [HN13] where the liability [*16] waiver is in the context of a for-profit activity, it is almost certainly unenforceable. See Monster Mountain, 754 F.Supp.2d at 1327 (stating that “this court is not aware of a single case, that has not been overturned, that has held these clauses to be binding in the context of a for-profit activity”). The many cases cited by plaintiffs overwhelmingly demonstrate the tendency of courts to strike down exculpatory agreements in the context of a commercial activity. See, e.g., Meyer v. Naperville Manner, Inc., 262 Ill.App.3d 141, 634 N.E.2d 411, 199 Ill. Dec. 572 (1994) (horseback riding lessons); Paz v. Life Time Fitness, Inc., 757 F. Supp.2d 658 (S.D. Tex. 2010) (fitness center); Johnson v. New River Scenic Whitewater Tours, Inc., 313 F.Supp.2d 621 (S.D.W.Va. 2004) (whitewater rafting); Kirton v. Fields, 997 So.2d 349 (Fla. 2003) (motor sports park).

In Gonzalez, the parent of a fifteen-year-old high school student signed a liability waiver in order for the student to participate in a school-sponsored training program at the municipal fire station, for which she was to receive class credit. 871 So.2d 1067. In holding that the waiver was enforceable, the court concluded that the program fell “within the [*17] category of commonplace child oriented community or school supported activities for which a parent or guardian may waive his or her child’s litigation rights in authorizing the child’s participation.” Id. Also in the context of school-sponsored extracurricular activities, a California state court and a Massachusetts state court each upheld liability waivers executed in conjunction with high school fundraising events and high school cheerleading practice, respectively. See Hohe, 224 Cal.App.3d at 1563 (noting specifically the voluntary and recreational nature of the activity, which was sponsored by plaintiff’s high school); Sharon, 437 Mass. at 107-08. Finally, apart from the school-sponsored context, the Ohio Supreme Court held that a liability waiver was enforceable in the context of a community-based recreational soccer club. Zivich, 82 Ohio St.3d 367, 1998 Ohio 389, 696 N.E.2d 201. The court in that case held the waiver enforceable to bar the claim of a child who was injured on the soccer field, noting that “the [*18] public as a whole received the benefit of these exculpatory agreements [which allowed the club] to offer affordable recreation and to continue to do so without the risks and overwhelming costs of litigations.” Id. at 372..

Plaintiffs rely heavily on Galloway, wherein the Iowa Supreme Court held a liability waiver unenforceable where it was executed in the context of a high school field trip. 790 N.W.2d at 258-59. In declining to adopt the exception described above, the court noted that the policy concerns justifying the exception were “speculative and overstated,” finding that “the strong public policy favoring the protection of children’s legal rights must prevail over speculative fears about their continuing access to activities.” Id. at 259. This case, however, appears to be an outlier, as the exception is well-established by the majority of state court cases that have discussed the issue, as discussed above.

The court is persuaded by the analysis of those courts that have upheld such waivers in the context of litigation filed against schools, municipalities, or clubs providing activities for children, and concludes that, if faced with the issue, the North Carolina Supreme Court would [*19] similarly uphold a preinjury release executed by a parent on behalf of a minor child in this context.

Applying these principles to the case now at bar, the court observes that the activity at issue here was not commercial in nature, unlike those at issue in Meyer, Paz, Johnson, and Kirton, among others cited by plaintiffs. Here, it is undisputed that the liability waiver was executed on behalf of a fifteen-year-old high school student by her mother in conjunction with the student’s participation in a school-sponsored activity. The facts, therefore, are very similar to those in Gonzalez. As in that case, the court concludes that the activity falls “within the category of commonplace child oriented community or school supported activities for which a parent or guardian may waive his or her child’s litigation rights in authorizing the child’s participation.” Gonzalez, 871 So.2d 1067.

Here, the liability waiver was executed so that Morgan Kelly could participate in a school-sponsored enrichment program that was extracurricular and voluntary. On these facts, the court anticipates that the North Carolina Supreme Court would hold the liability waiver enforceable under the exception for non-commercial [*20] or community-based activities. Therefore, the seventh affirmative defense is not “clearly invalid as a matter of law” as it relates to a waiver of claims by Pamela Kelly, and therefore is not an insufficient defense. See Spell, 591 F.Supp. at 1112. As such, plaintiff’s motion to strike the seventh affirmative defense must be and is denied as to that issue. 8

8 Plaintiffs argue in the alternative that even if the waiver is enforceable to bar Morgan Kelly’s claims, it is not enforceable against the claims of her parents. Plaintiffs argue that “the text of the waiver form envisions an agreement only between the United States and the minor participant.” Pls.’ Mot., at 13. In support, plaintiffs point to language of the waiver which, they claim, emphasizes Morgan Kelly over her parents. For example, the contract refers to “my participation [in the training program]” and the provision that “should I decline to execute this agreement, I will not be permitted to attend the organized event.” Pls.’ Mot., at 13-14. However, the waiver clearly states that “I, the undersigned person, intending to be legally bound, hereby promise to waive for myself, my guardians, heirs, executor, administrators, [*21] legal representatives and any other persons on my behalf, any and all rights and claims for damages” arising out of “my participation in the activities comprising the aforesaid event.” As such, the waiver’s plain language extends not only to Morgan Kelly’s claims but those of her parents as well.

CONCLUSION

For the foregoing reasons, the parties’ joint request for hearing (DE # 24) is DENIED. Plaintiffs’ motion to strike affirmative defenses (DE # 20) is ALLOWED as to the fourth affirmative defense. As to the seventh affirmative defense, plaintiffs’ motion to strike is ALLOWED as to the minor’s waiver of her own claims. Attempted defense on this basis is not supported under law. Affirmative defense persists however, at to the mother’s waiver of the minor’s claims. As discussed at length above, plaintiffs’ motion to strike is DENIED in this remaining part.

SO ORDERED, this the 10th day of August, 2011.

/s/ Louise W. Flanagan

LOUISE W. FLANAGAN

Chief United States District Judge

WordPress Tags: States,America,Dist,LEXIS,Morgan,Pamela,Terry,Plaintiffs,Defendant,District,Court,Eastern,North,Carolina,Southern,Division,August,COUNSEL,Steven,Michael,Stancliff,LEAD,ATTORNEY,James,Chapman,Crenshaw,Ware,Martin,Norfolk,Renfer,Ellis,Boyle,ATTORNEYS,Office,Raleigh,JUDGES,LOUISE,FLANAGAN,Chief,Judge,OPINION,ORDER,Federal,Rule,Civil,Procedure,judgment,Also,companion,STATEMENT,CASE,action,Tort,Claims,FTCA,injuries,Marine,Corps,Base,Camp,Lejeune,Lejeuene,parents,daughter,complaint,September,government,December,conference,February,management,discovery,April,Further,extension,FACTS,student,cadet,Navy,Junior,Reserve,Officer,NJROTC,Marines,cadets,waiver,guardian,Assumption,Risk,Agreement,participation,event,equipment,facilities,conjunction,injury,confidence,obstacle,Slide,Life,million,dollars,DISCUSSION,Joint,Request,argument,determination,basis,Local,hearings,discretion,presentations,attention,Motion,Strike,Pleadings,Standard,Review,fourth,initiative,Spell,McDaniel,Supp,tactic,Waste,Holdings,citations,Godfredson,Legal,Group,Racick,Dominion,Associates,arguments,situations,plaintiff,Bradshaw,Hilco,Receivables,device,opponent,Analysis,jurisdiction,Feres,doctrine,personnel,member,Govt,Resp,waivers,Hall,Sinclair,person,negligence,performance,agreements,statute,Waggoner,Nags,Head,Water,Sports,decision,Strawbridge,Sugar,Mountain,Resort,Under,manner,extent,omission,Myrick,interpretation,Although,Baker,Adidas,Creech,Melnik,Freeman,Bridger,theory,minors,Nationwide,Chantos,transactions,statutes,necessities,election,Jackson,Beard,factor,precedent,Supreme,Triangle,Indus,jurisdictions,guidance,series,decisions,policies,Stat,prongs,enforcement,history,purposes,rental,Circuit,clause,seller,supplier,article,importance,Galloway,State,Iowa,policy,Kirton,Fields,Many,conclusion,example,settlement,approval,Thode,Monster,Alabama,Scott,Pacific,West,Wash,Washington,Sell,Hotchkiss,infant,examination,adjudication,failure,exception,context,events,Gonzalez,Coral,Gables,Sharon,Newton,Mass,Zivich,Mentor,Soccer,Club,Ohio,Hohe,Diego,Rptr,clauses,tendency,Meyer,Naperville,lessons,Time,Johnson,River,Scenic,Whitewater,Tours,park,category,litigation,California,Massachusetts,recreation,litigations,protection,municipalities,Here,enrichment,text,participant,provision,guardians,heirs,executor,administrators,Affirmative,length,pursuant,seventh,whether,behalf,enforceable,exculpatory,violative,unenforceable,upon


Osborn v. Cascade Mountain, Inc 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1

Osborn v. Cascade Mountain, Inc 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1

2002 Wisc. App. LEXIS 1216,*;2003 WI App 1;

259 Wis. 2d 481;655 N.W.2d 546

Amanda Osborn, Joan Osborn, and Richard Osborn, Plaintiffs-Appellants, Unity Health Plans and Wisconsin Physicians Service Insurance Corp., Subrogated-Plaintiffs, v. Cascade Mountain, Inc. and American Home Assurance Company, Defendants-Respondents.

Appeal No. 01-3461

Court of Appeals of Wisconsin, District Four

2003 WI App 1;259 Wis. 2d 481;655 N.W.2d 546;2002 Wisc. App. LEXIS 1216

November 7, 2002, Decided

November 7, 2002, Filed

Notice: [*1] Pursuant to Wis. Stat. Rule 809.23(3) of appellate procedure, an unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority except to support a claim of Res Judicata, Collateral Estoppel or law of the case.

Prior History: Appeal from a judgment of the circuit court for Columbia County: James O. Miller, Judge. Cir. Ct. No. 99-CV-252.

Disposition: Affirmed.

Judges: Before Vergeront, P.J., Dykman and Deininger, JJ.

Opinion: P1. Per Curiam. Amanda Osborn and her parents, Joan and Richard Osborn, appeal from a summary judgment dismissing their personal injury action against Cascade Mountain, Inc., and its insurer. The Osborns sued for injuries Amanda, then age twelve, received while skiing at Cascade Mountain. The dispositive issue is whether the Osborns’ claim is subject to an enforceable release of liability agreement signed by Joan Osborn. We conclude that it is, and therefore affirm.

P2. The Osborns allege that a defective ski-boot-binding system, on ski equipment rented from Cascade Mountain, caused the injury to Amanda. However, before Amanda’s ski trip, Joan signed a document entitled “Rental Permission Agreement and Release of Liability.” That document provided:

I understand and am aware that skiing is a HAZARDOUS activity. I understand that the sport of skiing and the [*2] use of this ski equipment involve a risk of injury to any and all parts of my child’s body. I hereby agree to freely and expressly assume and accept any and all risks of injury or death to the user of this equipment while skiing.

I understand that the ski equipment being furnished forms a part of or all of a ski-boot-binding system which will NOT RELEASE at all times or under all circumstances, and that it is not possible to predict every situation in which it will or will not release, and that its use cannot guarantee my child’s safety or freedom from injury while skiing. I further agree and understand that this ski-boot-binding system may reduce but does not eliminate the risk of injuries to the bottom one-third of my child’s lower leg. However, I agree and understand that this ski-boot-binding system does NOT reduce the risk of injuries to my child’s knee or any other part of my child’s body.

I agree that I will release Cascade Mountain from any and all responsibility or liability for injuries or damages to the user of the equipment listed on this form, or to any other person. I agree NOT to make a claim against or sue Cascade Mountain for injuries or damages [*3] relating to skiing and/or the use of this equipment. I agree to release Cascade Mountain from any such responsibility, whether it results from the use of this equipment by the user, or whether it arises from any NEGLIGENCE or other liability arising out of the maintenance, selection, mounting or adjustment of this ski equipment.

I have carefully read this agreement and release of liability and fully understand its contents. I am aware that this is a release of liability and a contract between my child, myself and Cascade Mountain and I sign it of my own free will.

P3. Amanda fell twice while skiing. Amanda had signed a second release agreement similar to the one previously signed by her mother. The second fall caused her injuries.

P4. Cascade Mountain moved for summary judgment, alleging that the above-quoted release rendered it immune from liability. The trial court agreed and granted summary judgment. On appeal, the Osborns contend that the release is void on contract principles and public policy grounds. n1

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

n1 It is recognized that a parent may waive a child’s claim, Fire Ins. Exch. v. Cincinnati Ins. Co., 2000 WI App 82, P24, 234 Wis. 2d 314, 610 N.W.2d 98, and the Osborns do not claim otherwise here.

- – - – - – - – - – - – - – - – -End Footnotes- – - – - – - – - – - – - – - – - [*4]

P5. An exculpatory contract may be void on public policy grounds or under rules governing contracts. See Werdehoff v. General Star Indem. Co., 229 Wis. 2d 489, 499-500, 600 N.W.2d 214 (Ct. App. 1999). In either case, the issue is one of law. Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 80, 557 N.W.2d 60 (1996). In deciding it, we owe no deference to the trial court. See M & I First Nat’l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 497, 536 N.W.2d 175 (Ct. App. 1995).

P6. In Richards v. Richards, 181 Wis. 2d 1007, 1011, 513 N.W.2d 118 (1994), the supreme court applied a three-part public policy test to determine the validity of a liability release: first, whether it serves two purposes, neither clearly identified nor distinguished; second, whether it is extremely broad and all-inclusive; and third, whether it is a standardized form offering little or no opportunity for negotiation or free and voluntary bargaining. “None of these factors alone would necessarily invalidate the release; however, taken together they demand the conclusion that the contract is void as against public [*5] policy.” Id.

P7. In Yauger, the court applied a two-part test: first, examining whether the release clearly, unambiguously, and unmistakably informed the signer of what was waived; and second, whether the form in its entirety alerted the signer to the nature and significance of what was being signed. Yauger, 206 Wis. 2d at 84. Here, the Osborns contend that Cascade Mountain’s liability release must be deemed void under both the Richards and the Yauger tests.

P8. Cascade Mountain’s liability release is not void under the Richards test. The release’s two purposes are clearly and unmistakably identified in its title, “Rental Permission Agreement and Release of Liability.” That clear enunciation of purpose is not remotely confusing. Second, the release is not unduly broad or all-inclusive. It expressly and unmistakably restricts itself to those using its equipment: “I agree to release Cascade Mountain from [liability], whether it results from the use of this equipment by the user, or whether it arises from any NEGLIGENCE or other liability arising out of the maintenance, selection, mounting or adjustment [*6] of this ski equipment.” (Emphasis added.) Under any reasonable view, that language does not present an overly or unduly broad and all-inclusive release of liability. Third, it cannot be said that the agreement offered little or no opportunity for negotiation or free and voluntary bargaining. The release applied only to those who rented equipment from Cascade Mountain. Amanda, or any other skier, was permitted to ski at Cascade Mountain without signing the release if the person chose to obtain equipment elsewhere.

P9. The liability release is also enforceable under the Yauger test. The release clearly, unambiguously, and unmistakably informed the Osborns that they were agreeing not to pursue a claim against Cascade Mountain for injuries resulting from the use of rented Cascade Mountain ski equipment. Second, the title of the release, if nothing else, clearly informed the Osborns of what they were signing. In Yauger, the court held a liability release void in significant part because it was titled “APPLICATION.” See Yauger, 206 Wis. 2d at 86-87. The release here, unambiguously entitled a “Release of Liability,” removed that problem. Also [*7] in Yauger, only part of the release document actually dealt with the subject of liability. See id. 206 Wis. 2d at 79. Here, virtually every sentence of the release plainly and unmistakably addresses the issues of injury and liability for injury. Again, the facts are far removed from those that persuaded the court in Yauger to declare the release void. Additionally, although the Osborns argue otherwise, the reference to “Cascade Mountain” as the released party is not ambiguous. No one reading the release form could reasonably understand it as referring to anything other than Cascade Mountain, Inc.

P10. The Osborns also contend that the release Amanda signed was not valid because she was a minor. That is true, but irrelevant. The first release, signed by Joan, remained in effect.

By the Court.-Judgment affirmed.

This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)5 (1999-2000).


Chapple, Et Al., v. Ultrafit Usa, Inc., Et Al., 2002 Ohio 1292; 2002 Ohio App. LEXIS 1366

Chapple, Et Al., v. Ultrafit Usa, Inc., Et Al., 2002 Ohio 1292; 2002 Ohio App. LEXIS 1366

Roger Chapple, Et Al., Plaintiffs-Appellants -vs- Ultrafit Usa, Inc., Et Al., Defendants-Appellees

Case No. 01-CAE-08037

COURT OF APPEALS OF OHIO, FIFTH APPELLATE DISTRICT, DELAWARE COUNTY

2002 Ohio 1292; 2002 Ohio App. LEXIS 1366

March 18, 2002, Date of Judgment Entry

PRIOR HISTORY: [*1] CHARACTER OF PROCEEDING: Appeal from the Delaware County, Common Pleas Court, Case No. 00-CVC-06-270.

DISPOSITION: Trial court’s grant of defendants-appellees’ motion for summary judgment was affirmed.

COUNSEL: For Plaintiffs-Appellants: JOHN A. YAKLEVICH, Columbus, Ohio.

For Defendants-Appellees: MARK PETRUCCI, Columbus, Ohio.

JUDGES: Hon. Sheila G. Farmer, P.J., Hon. Julie A. Edwards, J., Hon. John F. Boggins, J. Boggins, J., Farmer, P.J., and Edwards, J. concur.

OPINION BY: John F. Boggins

OPINION

Boggins, J.

This is an appeal from a Summary Judgment ruling of the Delaware County, Court of Common Pleas.

STATEMENT OF THE FACTS AND CASE

The facts underlying this case are that appellant Roger Chapple was an employee of the Ohio Department of Natural Resources, Division of Parks and Recreation (O.D.N.R.). Appellee Ultrafit, Inc. through its president, appellee Jeffrey Sheard is engaged in organizing and promoting events such as triathlons. One of these contests was set for June 28, 1998 at Alum Creek State Park. Appellees had made application to the O.D.N.R. to use the facilities, including employees of O.D.N.R. on June 28, 1998 to conduct a triathlon. Appellant signed up per O.D.N.R. procedure to work the event. John Williamson, crew leader for O.D.N.R. set the work schedule which [*2] included appellant’s duties. (Appellant’s deposition at p.14). Appellant had no contact with appellees on 6/28/98 prior to his injury. Due to severe weather, the triathlon’s starting time was delayed until about 9:30a.m. when the weather had improved. Due to the late start, the race was shortened. Near the end of the shortened event, appellant Roger Chapple was rolling a hose on an abandoned leg of the race and was struck by lightning and injured. Appellant, Joyce Chapple, spouse of Roger Chapple is joined on a loss of consortium basis. The issues are whether appellees owed a duty to Roger Chapple, was he an employee of O.D.N.R. or other status, and if a duty of care existed, did it require a postponement or cancellation of the event. Appellees filed a Motion for Summary Judgment on April 11, 2000 which was set for a non-oral hearing with appellants memorandum in opposition filed May 8, 2000, and a reply subsequently filed. After careful consideration of all materials available to the trial court, it sustained appellee’s motion.

ASSIGNMENT OF ERROR

The sole Assignment of Error is:

I.

THE TRIAL COURT ERRED IN RENDERING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS-APPELLEES WHERE [*3] THE DEFENDANT-APPELLEES OWED A DUTY OF CARE TO PLAINTIFFS-APPELLANTS AND GENUINE ISSUES OF FACT EXISTED CONCERNING DEFENDANTS-APPELLEES’ BREACH OF THAT DUTY.

SUMMARY JUDGMENTS

Civ.R. 56(C) states, in pertinent part:

[HN1] Summary Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law…. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor.

[HN2] Pursuant to the above rule, a trial court may not enter a summary judgment if it appears a material fact is genuinely disputed. [HN3] In order to survive a motion for summary judgment, the non-moving party must produce evidence on any issue [*4] to which that party bears the burden of production at trial. Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St. 3d 108, 570 N.E.2d 1095, citing Celotex v. Catrett (1986), 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548. [HN4] Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St. 3d 35, 36, 506 N.E.2d 212. I. As to the Assignment of Error, even though appellants’ Complaint asserts negligence, gross negligence and wanton and wilful misconduct but his Brief relies solely on negligence. (Appellant’s brief at p. 8). Appellant acknowledges that no Ohio case strictly fits the fact pattern in the case sub judice. Other than the cases citing basic propositions of negligence law, none of the cases cited by either party to this appeal are particularly in point, therefore we must, as the trial court did, review the facts which would support or refute the decision from which the appeal is taken. The deposition of appellant, Roger Chapple, indicates that the weather had cleared by the delayed starting time and that [*5] lightning flashes were to the north of the park. (Appellant’s deposition at p. 26). In the reply brief appellant’s counsel attempts to blame a memory loss for the inability of Roger Chapple to remember that lightning was flashing in his vicinity prior to being struck. (Appellant’s reply brief at p. 2). This conclusion is not supported by appellant’s deposition which demonstrates a clear memory except for short term loss. (Appellant’s deposition at p. 46). The essential issue is whether alleged facts were presented to the trial court indicating a breach of duty of appellees to appellants. [HN5] The existence of a duty is an essential element of negligence action. Grover v. Eli Lilly and Company (1992), 63 Ohio St. 3d 756, 591 N.E.2d 696. [HN6] The foreseeability of injury is obviously a factor to consider under appropriate circumstances. An injury is foreseeable if a reasonably prudent person, under like or similar circumstance knew or should have known that an act or nonperformance of an act was likely to result in harm. Simmers v. Bentley Construction Co. (1992), 64 Ohio St. 3d 642, 597 N.E.2d 504. Here, appellants assert that, because appellee had authority to postpone [*6] or cancel the race, that a duty to appellant existed. The defect in this argument is that the weather had cleared considerably at starting time. Lightning flashes were to the north. Appellant did not believe that danger was present. (Appellant’s deposition at p. 47). Also, if such became a concern, he believed policy dictated that he go to a vehicle. (Appellant’s deposition at p. 40-41). Appellant argues that severe electrical storm activity was present, but his deposition does not support this conclusion. Appellee has reviewed certain theories and applicable cases such as injury to subcontractors, and inherently dangerous activity. These are not applicable under the facts and the appellant being a subcontractor has not been argued. The only aspect of appellant’s position which is close to the decisions in this line of cited cases is one of control by appellee. The control asserted is that appellant was included with the use of the facilities and appellees retained the exclusive ability to cancel or postpone the triathlon. However, no direction occurred. It can only be argued that appellee possessed a general authority to cancel or postpone. In this narrow regard the language of Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103, 113 N.E.2d 629 [*7] is pertinent even though, it is a subcontractor case. It holds that active participation by the contractor as opposed to a general supervisory role is required. The facts in the case sub judice indicate that Roger Chapple chose to work outside and felt that no danger existed. (Appellant’s deposition at p. 41-42). Roger Chapple believed that park rules provided that he wait in a vehicle if a weather danger existed, (Appellant’s deposition at p. 40-41) even though Mr. Hart disputes the existence of such a policy in his deposition. As stated before, Roger Chapple had no contact with appellees and nothing in any deposition supports direction by appellees. It is asserted that lightning was present during the race and the affidavit of Mr. Williamson is relied on for this assertion. However, such affidavit also places the lightning to the north of the race event. It is also stated that appellees had no access to weather information. However, Mr. Sheard’s deposition indicated that amateur radio operators were at the race and would provide such data if such need arose. (Sheard deposition at p. 38). The facts which the trial court had available is that Mr. Chapple was employed by and paid by [*8] O.D.N.R. His worker’s compensation claim was filed as such rather than as a loaned employee to appellees. It is accurate, however, that [HN7] an employee may institute a third-party negligence action even though a worker’s compensation claim has been filed. George v. City of Youngstown (1942), 139 Ohio St. 591. The essence of appellant’s claim is that appellee had the authority to postpone or cancel the race and that the race was commenced under dangerous weather conditions. We must disagree with the Assignment of Error and conclude, as the trial court did, that there is insufficient support for the existence of a duty, control of the activities of appellant, nor negligence of appellee.

We therefore affirm the decision of the trial court.

By: Boggins, J. Farmer, P.J. and Edwards, J. concur.


Hong, v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340

Hong, v. Hockessin Athletic Club, 2012 Del. Super. LEXIS 340

Jahndee Hong, as Guardian/Next Friend of Jaden Hong, a minor, Plaintiff, v. Hockessin Athletic Club, and Eastern Athletic Clubs, Llc, a Delaware limited liability company, Defendants.

C.A. No. N12C-05-004 PLA

SUPERIOR COURT OF DELAWARE, NEW CASTLE

2012 Del. Super. LEXIS 340

June 4, 2012, Submitted

July 18, 2012, Decided

JUDGES: Peggy L. Ableman, Judge.

OPINION BY: Peggy L. Ableman

OPINION

This 18th day of July, 2012, it appears to the Court that:

1. Defendants Hockessin Athletic Club (“HAC”) and Eastern Athletic Clubs, LLC (collectively, “Defendants”) have filed a Motion to Dismiss pursuant to Superior Court Civil Rule 12(b)(6), asserting that Plaintiff’s negligence claim is barred by a liability waiver that was executed as part of the club’s Membership Agreement. For the reasons set forth below, the Court agrees that the liability waiver bars Plaintiff’s claim. Accordingly, Defendants’ Motion to Dismiss is GRANTED.

2. Plaintiff Jahndee Hong (“Hong”) brought this negligence action against Defendants on behalf of her son Jaden Hong (“Jaden”). On March 16, 2011, when he was three years old, Jaden fell from indoor playground equipment at the HAC and broke his right arm. 1 On October 30, 2010, Hong and her husband Minsuk Hong executed a Membership Application and Agreement (“Agreement”) with the HAC. The membership application listed the names and ages of the Hongs’ three children, including Jaden. The Agreement includes a waiver and release of [*2] liability. The Agreement defines a Member as “the individual signer and any and all other persons included in his/her membership with HAC.” Under the heading “WAIVER AND RELEASE OF LIABILITY AND INDEMNITY AGREEMENT,” the Agreement provides as follows:

Member hereby acknowledges that in using the facilities, programs and equipment of HAC, he/she does so entirely at his/her own risk and assume[s] the risk of any injury and/or damage while engaging in any physical exercise or activity or use of any club facility on the premises. This assumption of the risk included, without limitation, Member’s use of any exercise equipment (mechanical or otherwise), the locker room, sidewalk, parking lot, stairs, pool, whirlpool, sauna, steam room, racquet courts, lobby hallways, or any equipment in the facility. Member further agrees to assume the risk in participating in any activity, class, program, instruction, or any event sponsored by HAC. Insurance liability conditions and HAC prohibit any personal training lessons or services by non-HAC staff. Violations of such can result in membership termination.

By executing this Agreement, Member does HEREBY WAIVE, RELEASE AND FOREVER DISCHARGE, HAC and its [*3] past, present and future subsidiaries, affiliates, successors, predecessors, executors, committees, fiduciaries, trustee, employee benefit plans, workers compensation carriers, plan administrators, administrators, partners, employees, insureds, assigns, agents, and representatives in their personal and professional capacities (collectively “HAC”), from all claims, demands, injuries, damages, actions or causes of action, and from all acts of active or passive negligence on the part of such company, corporation, club, its servants, agents, or employees of any nature whatsoever, including attorneys’ fees and costs arising out of or connection with the aforementioned activities. Member further agrees to indemnify and hold harmless HAC from any claims, demands, injuries, damages, actions or causes of action, loss, liability, damage or cost which HAC may incur due to Members['] presence at or use of the facility. Member further agrees that the foregoing warranty, waiver and indemnity agreement is intended to be as broad and inclusive as permitted by the law of the State of Delaware and that if any portion is deemed to be invalid, it is expressly agreed that the remaining terms shall remain [*4] in full legal force and effect.

MEMBER ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND FULLY UNDERSTANDS THAT IT IS A RELEASE OF LIABILITY AND EXPRESS ASSUMPTION OF RISK AND INDEMNIFICATION. MEMBER IS AWARE AND AGREES THAT BY EXECUTING THIS WAIVER AND RELEASE, HE/SHE IS GIVING UP THE RIGHT TO BRING LEGAL ACTION OR ASSERT A CLAIM AGAINST HAC FOR ITS NEGLIGENCE AND/OR FOR ANY DEFECTIVE PRODUCT THAT MAY BE IN THE FACILITY OR ON ITS PREMISES. BY SIGNING BELOW, MEMBER SIGNIFIES THAT HE/SHE HAS READ AND VOLUNTARILY SIGNED THIS AGREEMENT AND THAT NO ORAL REPRESENTATIONS, STATEMENTS OR INDUCEMENTS APART FROM THIS FOREGOING AGREEMENT HAVE BEEN MADE.

HAC contends that the liability waiver bars Plaintiff’s suit. Plaintiff responds that the waiver does not bar Plaintiff’s claim because the waiver, which refers to “all acts of active or passive negligence [...] arising out of or in connection with the aforementioned activities,” is ambiguous and can be interpreted as applying only to the Member’s assumption of the risk of HAC’s negligence in participating in “any activity, class, program, instruction, or any event sponsored by HAC.”

1 Complaint at ¶ 8. The Complaint makes no specific [*5] allegations as to what was wrong with the playground equipment or how HAC’s negligence caused or contributed to Jaden’s injury. Rather, the Complaint alleges that HAC was negligent in that they (a) failed to take reasonable measures to make premises safe for invitees; (b) failed to properly and reasonably inspect the premises; (c) failed to take reasonable measures to make the premises safe; (d) failed to supervise the plaintiff and other invitees on the property to make sure the invitees were safe at all relevant times herein; and (e) were otherwise negligent. See Compl. at ¶ 9. The Court observes that [HN1] playground injuries are a fairly typical hazard of childhood and that the mere fact that a child broke his arm while at the playground ordinarily would not, by itself, demonstrate negligence on the part of the owner of the premises. The Court further notes that [HN2] Delaware’s rules of pleading prohibit plaintiffs from using a complaint as a fishing expedition to see whether a wrong has been committed. See, e.g., Leary v. Eschelweck, 2012 Del. Super. LEXIS 206, 2012 WL 1664236, at *2 (Del. Super. May 8, 2012). The Complaint as presented in this case comes dangerously close to running afoul of that rule.

3. The Court [*6] must first determine whether to adjudicate Defendants’ motion as presented or convert it to a motion for summary judgment. 2 [HN3] Superior Court Civil Rule 12(b)(6) provides that a motion to dismiss shall be treated as a motion for summary judgment under Rule 56 if “matters outside the pleadings are presented to and not excluded by the Court.” 3 HAC has submitted a copy of the signed liability waiver at issue, which Hong also addresses in her Response. Therefore, this motion will be treated as one for summary judgment.

2 Slowe v. Pike Creek Court Club, Inc., 2008 Del. Super. LEXIS 377, 2008 WL 5115035, at 2 (Del. Super. Dec. 4, 2008).

3 Super. Ct. Civ. R. 12(b)(6).

[HN4] When considering a motion for summary judgment, the Court examines the record to determine whether genuine issues of material fact exist and to determine whether the moving party is entitled to judgment as a matter of law. 4 [HN5] Summary judgment will be granted if, after viewing the evidence in the light most favorable to the non-moving party, there are no material facts in dispute or judgment as a matter of law is appropriate. 5

4 Super. Ct. Civ. R. 56(c).

5 Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 879-80 (Del. Super. 2005).

4. In the factual context of this [*7] case, the question of whether the liability waiver that Hong signed as part of the Membership Agreement with HAC now bars her claim against Defendants is an easy one. In Slowe v. Pike Creek Court Club, which involved a guest who fell on a set of negligently maintained stairs in the swimming pool at the Pike Creek Court Club, a forerunner to the Hockessin Athletic Club, this Court held that [HN6] “a provision exonerating a party for its own negligence will only be given effect if the language makes it crystal clear and unequivocal that the parties specifically contemplated such a release.” 6 [HN7] Delaware courts have held that the requirement of “crystal clear and unequivocal” language is satisfied where contractual provisions include language “specifically refer[ring] to the negligence of the protected party.” 7 The Court found that the liability release at issue in Slowe included no specific language indicating that the parties contemplated that the waiver would extend to PCCC’s own acts of negligence. 8 Moreover, as the Court noted in Slowe, PCCC’s liability release lacked “alternative language expressing that PCCC would be released for its own fault or wrongdoing,” concluding that the plaintiff [*8] could reasonably have concluded that the release would only relieve PCCC of liability for injuries or losses resulting from risks inherent in his use of the club. 9

6 Id. (quoting J.A. Jones Constr. Co. v. City of Dover, 372 A.2d 540, 553 (Del. Super. 1977)) (internal quotation marks omitted).

7 Id.; see also Hallman v. Dover Downs, Inc., 1986 U.S. Dist. LEXIS 15708, 1986 WL 535, at *4 (D. Del. Dec. 31, 1986) (collecting cases).

8 Slowe, 2008 Del. Super. LEXIS 377, 2008 WL 5115035, at *3.

9 Id.

5. The Court similarly found that Slowe did not expressly assume the risk of PCCC’s negligence by signing the liability waiver because the waiver did not “clearly, explicitly and comprehensibly notify Slowe that he was assuming the risk that PCCC would negligently fail to maintain and inspect the premises.” 10 The Slowe Court left open the possibility, however, that “a properly-worded release might effect a waiver of premises liability.” 11

10 2008 Del. Super. LEXIS 377, [WL] at *5.

11 Id. The Slowe Court cited to Benedek v. PLC Santa Monica LLC, 104 Cal. App. 4th 1351, 129 Cal.Rptr. 2d 197 (Cal. Ct. App. 2002), which held that the defendant health club’s release barred plaintiff’s claim for negligence and premises liability arising out of injuries he sustained when he tried to catch a falling television set. The [*9] Benedek court reasoned, “[t]he release Benedek signed was clear, unambiguous, and explicit. It released [the health club] from liability for any personal injuries suffered while on [the health club's] premises, ‘whether using exercise equipment or not.’” The court further noted that given the unambiguous broad language of the release, it “reached all personal injuries suffered by Benedek on [the health club's] premises, including the injury Benedek suffered because of the falling television” and rejected as “not semantically reasonable” plaintiff’s argument that the release applied or should be interpreted to apply only to injuries suffered while actively using exercise equipment. 129 Cal.Rptr.2d at 204.

6. Here, Hong signed a comprehensive waiver of liability and release in connection with her Membership Agreement that expressly stated that she (and all others on her membership) assumed the risk of “any injury or damage incurred while engaging in any physical exercise or activity or use of any club facility on the premises,” including the use of “any equipment in the facility” and participation “in any activity, class, program, instruction, or any event sponsored by HAC.” Plaintiff’s [*10] suggestion that “the aforementioned activities” specified in the second paragraph of the liability waiver applies only to activities sponsored by HAC, such as a group exercise class, is an implausible reading of the contract. Accordingly, the Court finds that the Membership Agreement and the included liability waiver and release bar Plaintiff’s claims against HAC.

7. Alternatively, notwithstanding the liability waiver, summary judgment should still be granted based on Plaintiff’s failure to make a prima facie case of negligence against Defendants. 12 The Complaint contains no specific allegations about the nature of HAC’s negligence and how it caused Jaden’s injury. Rather, the Complaint asserts, in vague and conclusory fashion, that Defendants negligently

(a) failed to take reasonable measures to make premises safe for invitees;

(b) failed to properly and reasonably inspect the premises;

(c) failed to take reasonable measures to make their premises safe;

(d) failed to supervise the plaintiff and other invitees on the property to make sure the invitees were safe at all relevant times herein; and

(e) were otherwise negligent. 13

In the absence of specific, particularized allegations about [*11] the nature of HAC’s negligence and how it caused Jaden’s injuries, the Complaint must fail.

12 To the extent that Plaintiff believes that she is entitled to discovery to meet her burden, the Court considers the allegations of negligence in the Complaint too vague and generic to allow Plaintiff to conduct what would essentially be a fishing expedition to discover evidence of Defendants’ unspecified negligence. See supra note 1. Summary judgment is therefore appropriate even at this early stage of the litigation.

13 Compl. at ¶9.

8. The Delaware Supreme Court recently upheld this Court’s grant of summary judgment in favor of a car dealership where a would-be customer walked into a plate-glass window at the dealership, noting that while owners and occupiers of commercial property have a duty to maintain their premises in a reasonably safe condition for their customers, patrons also have an affirmative obligation to exercise reasonable care while on the business owner’s premises. 14 [HN8] In a personal injury action, the plaintiff-customer bears the burden of proving that: (i) there was an unsafe condition on the defendant’s premises; (ii) the unsafe condition caused the plaintiff’s injuries; and [*12] (iii) the defendant had notice of the unsafe condition or should have discovered it by reasonable inspection. 15

14 Talmo v. Union Park Automotive, 38 A.3d 1255, 2012 WL 730332, at *3 (Del. Mar. 7, 2012) (TABLE); see also DiOssi v. Maroney, 548 A.2d 1361, 1366-7 (Del. 1988); Howard v. Food Fair Stores, New Castle, Inc., 57 Del. 471, 201 A.2d 638, 640, 7 Storey 471 (Del. 1964); Walker v. Shoprite Supermarket, Inc., 864 A.2d 929 (Del. 2004) (holding that it is negligent for a patron not to see what is plainly visible when there is nothing obscuring the patron’s view).

15 Talmo, 38 A.3d 1255, 2012 WL 730332, at *3.

9. Plaintiff here has failed to make any allegations that even raise a clear issue of fact with regard to Defendants’ negligence. Unlike in Slowe, Plaintiff has not alleged the existence of any dangerous condition on the premises that was the result of the health club’s failure to perform its duties, which were statutory and could not have been disclaimed by liability waiver in any event. 16 Here, Plaintiff has made no allegation that the playground equipment was defective, that the premises otherwise suffered from a latent defect that HAC should have known about and either repaired or warned its invitees [*13] to avoid, or that HAC failed to fulfill a duty to supervise Jaden. Rather, this appears to be a typical incident of a child who was injured on a playground. Such incidents, while unfortunate, do not indicate negligence on the part of the premises-owner any more than does the case of the man who walked into a plate-glass window at a car dealership. Accordingly, based upon Plaintiff’s failure to make a prima facie case of negligence under a theory of premises liability, summary judgment should be granted in favor of Defendants.

16 Slowe, 2008 Del. Super. LEXIS 377, 2008 WL 5115035, at *5-*6.

10. For all of the reasons set forth above, Defendants’ motion for summary judgment is GRANTED.

IT IS SO ORDERED.

/s/ Peggy L. Ableman

Peggy L. Ableman, Judge

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Lautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290

Lautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290

Derek A. Lautieri v. Jorun G. Bae 1

1 The Town of Hudson was also named as a third-party defendant in the complaint. Count IV against the Town has been dismissed. Memorandum of Decision, dated June 7, 2002 (Bohn, J.).

01-4078

SUPERIOR COURT OF MASSACHUSETTS, AT MIDDLESEX

17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290

October 29, 2003, Decided

October 29, 2003, Filed

DISPOSITION: Third party defendants’ motions for summary judgment allowed in part and denied in part.

JUDGES: [*1] Kenneth J. Fishman, Justice of the Superior Court.

OPINION BY: Kenneth J. Fishman

OPINION

MEMORANDUM OF DECISION AND ORDER ON THIRD-PARTY DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

INTRODUCTION

Plaintiff, Derek A. Lautieri (“Lautieri”), was injured during a triathlon held in Hudson, Massachusetts. Lautieri brought this action against the defendant/third-party plaintiff, Jorun G. Bae (“Bae”), claiming negligence for Bae’s failure to exercise reasonable care in the operation of her motor vehicle. Bae in turn brought an action against third-party defendants USA Triathlon, Inc. (“USAT”) (Count I of Third-Party Complaint), William Fiske (“Fiske”) d/b/a Fiske Independent Race Management (Count II) 2 and the Boys and Girls Clubs of Metrowest, Inc. (“B&G Clubs”) (Count III), seeking contribution in the event that the plaintiff recovers damages for his alleged injuries. 3 Specifically, Bae claims negligence on part of the third-party defendants for failure to provide a safe layout for the race course, failure to provide warning signs and directions, and failure to place volunteers and/or police personnel at the intersection where the incident occurred. This matter is before this Court on the third-party [*2] defendants’ motions for summary judgment as to all counts. For the reasons described below, the third party defendants’ motions are ALLOWED, in part, and DENIED, in part.

2 Bae’s complaint uses the spelling “Fisk” in the caption. As all the parties, including Bae, have since used the spelling “Fiske”, this Court will use the latter spelling.

3 Bae initially also claimed a duty of indemnification, but has since stipulated that no privity of contract existed between himself and any of the third-party defendants, and, therefore, that no right of indemnification exists.

BACKGROUND

On June 4, 2000, Lautieri participated in an organized triathlon, one leg of which was competitive bicycling. Bae, while operating a motor vehicle, came to the intersection of Main Street and Lewis Street in Hudson. Bae stopped, looked to her left, looked to her right, and then looked to her left again for approaching traffic. Seeing no vehicles approaching, Bae proceeded straight through the intersection. Lautieri, [*3] then approaching the intersection with four or five other bicyclists, turned to avoid Bae’s vehicle but did not have sufficient time to prevent a collision. Lautieri suffered significant injuries as a result of the accident.

On May 12, 2000, prior to the race, Lautieri completed and signed a “USA Triathlon Annual Licence Application Waiver.” That waiver contained the following language in the form duplicated below:

I acknowledge that a triathlon or bisport/duathlon event is an extreme test of a person’s physical and mental limits and carries with it the potential for death, serious injury and property loss. I HEREBY ASSUME THE RISKS OF PARTICIPATING IN TRIATHLONS OR BISPORT/DUATHLON EVENTS. I certify that I am physically fit and have sufficiently trained for participating in this event(s), and have not been advised against participating by a qualified health professional. I acknowledge that my statements in this AWRL are being accepted by the USAT in consideration for allowing me to become a member in USAT and are being relied upon by USAT and the various race sponsors, organizers and administrators in permitting me to participate in any USAT sanctioned event . . . (b) I AGREE that [*4] prior to participating in an event I will inspect the race course, facilities, equipment and areas to be used and if I believe they are unsafe I will immediately advise the person supervising the event activity or area; (c) I waive, release, AND DISCHARGE for any and all claims, losses or liabilities for death, personal injury, partial or permanent disability, property damage, medical or hospital bills, theft, or damage of any kid, including economic losses, which may in the future arise out of or relate to my participation in or my traveling to and from a USAT sanctioned event, THE FOLLOWING PERSONS OR ENTITIES: USAT, EVENT SPONSORS, RACE DIRECTORS, EVENT PRODUCERS, VOLUNTEERS, ALL STATES, CITIES, COUNTIES, OR LOCALITIES IN WHICH EVENTS OR SEGMENTS OR EVENTS ARE HELD, AND THE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS OF ANY OF THE ABOVE, EVEN IF SUCH CLAIMS, LOSSES OR LIABILITIES ARE CAUSED BY THE NEGLIGENT ACTS OF OMISSIONS OF THE PERSONS I AM HEREBY RELEASING OR ARE CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OF ANY OTHER PERSON OR ENTITY; (d) I ACKNOWLEDGE that there may be traffic or persons on the course route, and I ASSUME THE RISK OF RUNNING, BIKING, SWIMMING [*5] OR PARTICIPATING IN ANY OTHER EVENT SANCTIONED BY USAT.

(e) I AGREE NOT TO SUE any of the persons or entities mentioned above in paragraph (c) for any of the claims, losses or liabilities that I have waived, released or discharged herein; (f) I INDEMNIFY AND HOLD HARMLESS the persons or entities mentioned above in paragraph (c) for any and all claims made or liabilities assessed against them as a result of my acts or inactions (ii) the actions, inactions or negligence of others including those parties hereby indemnified (iii) the conditions of the facilities, equipment or areas where the event or activity is being conducted (iv) the Competitive Rules (v) any other harm caused by an occurrence related to a USAT event . . .

Prior to the race, Lautieri also completed and signed a “Wet ‘N’ Wild Triathlon Application,” which contained the following language:

In consideration of the entry being accepted, I do hereby forever waive and release Fiske Independent Race Management, the sponsoring organization, companies, agents, representatives, assigns and successors from all claims of action, which I at any time acquire as a result of participation in the event for which this entry relates.

[*6] USTA is the governing body of triathlon races and promulgates safety requirements for use by organizers of sanctioned triathlon races. The subject triathlon was sanctioned by USTA based upon an application submitted by Fiske. On that application, William Fiske is identified as the Race Director. The Boys and Girls Clubs of Metrowest, Inc. provided a number of volunteers for the event.

DISCUSSION

[HN1] A party is entitled to summary judgment, “if pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material facts and that the moving party is entitled to a judgment as a matter of law.” Mass.R.Civ.P. 56(c). The burden of the moving party “is not sustained by the mere filing of the summary judgment motion,” but “must be supported by one or more of the materials listed in rule 56(c) . . .” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714, 575 N.E.2d 734, citing Celotex Corp. v. Catrett, 477 U.S. 317, 328, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). That party may satisfy this burden either by submitting affirmative evidence that negates an essential [*7] element of the opposing party’s case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991); Kourouvacilis, 410 Mass. at 716. “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat a motion for summary judgment.” Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989), citing O’Brion, Russell & Co. v. LeMay, 370 Mass. 243, 245, 346 N.E.2d 861 (1976).

General Laws c. 231B, § 1, [HN2] provides in pertinent part: “Where two or more persons become jointly liable in tort for the same injury to person or property, there shall be a right of contribution among them.” The Supreme Judicial Court (“SJC”) has consistently interpreted the language of this statute to mean that an “action for contribution is not barred if, at the time the accident occurred, the party for whom [*8] contribution is sought could have been held liable in tort.” McGrath v. Stanley, 397 Mass. 775, 781, 493 N.E.2d 832 (1986) (emphasis in original). See also, Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 346-50, 446 N.E.2d 1033 (1983); Liberty Mutual Ins. Co. v. Westerlind, 374 Mass. 524, 526, 373 N.E.2d 957 (1978); O’Mara v. H.P. Hood & Sons, Inc., 359 Mass. 235, 238, 268 N.E.2d 685 (1971). 4 Therefore, in order for Bae to be able to enforce a right of contribution against any of the third-party defendants, she must be able to show that the particular third-party defendant could have been found tortiously liable to the plaintiff at the time the accident occurred. Each third-party defendant will be discussed separately below.

4 In McGrath, where a plaintiff’s failure to comply with the particular jurisdictional requirements of G.L.c. 258, § 4 was held not sufficient to bar a right of contribution, the SJC noted that the “contribution statute is aimed at eliminating the unfairness of allowing a disproportionate share of a plaintiff’s recovery to be borne by one of several joint tortfeasors.” 397 Mass. at 777-78. The third-party defendants in the instant case, however, are not claiming a lack of jurisdiction, but instead that the plaintiff’s signature on certain waivers releases them from all liability. The SJC has approved the denial of the right of contribution in similar cases. See O’Mara, 359 Mass. at 238 (denying contribution to defendant company from the driver of car in which plaintiff was a passenger when company truck hit driver’s car); Liberty Mutual Ins. Co., 374 Mass. at 526 (denying contribution of plaintiff’s employer for work related injury on grounds that the employer’s contributions to workers’ compensation benefits released the employer from all tort claims that might have resulted from the accident).

[*9] A. William Fiske d/b/a/ Fiske Independent Race Management

Fiske argues that he was released from all liability regarding the Wet ‘N’ Wild Triathlon when Lautieri signed the USA Triathlon Annual Licence Application Waiver and the Wet ‘N’ Wild Triathlon Application. [HN3] Whether the waivers signed by the plaintiff are enforceable to bar any claims in tort against Fiske is a question of law to be decide by this Court.

[HN4] “Massachusetts law favors the enforcement of releases.” Sharon v. City of Newton, 437 Mass. 99, 105, 769 N.E.2d 738 (2002). “There can be no doubt . . . that under the law of Massachusetts . . . in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf.” Id., quoting Schell v. Ford, 270 F.2d 384, 386 (1st Cir. 1959). While any doubts about the interpretation of a release must be resolved in the favor of the plaintiff, an unambiguous and comprehensive release will be enforced as drafted. Cormier v. Central Massachusetts Chapter of the National Safety Council, 416 Mass. 286, 288, 620 N.E.2d 784 (1993). [*10]

Thus, in Cormier, the SJC upheld summary judgment against a plaintiff who executed a waiver of liability prior to sustaining injuries while riding on a motorcycle safety course. The Court found the waiver sufficient to bar a claim in negligence, even though the word negligence never appeared in the document. Id. at 288. The SJC also rejected the plaintiff’s claim that she believed that she was only relieving the defendant for liability for any accidental injury, not for any injury caused by the defendant’s negligence, holding that her “subjective intent not to release any claim for negligence, does not furnish a basis for avoiding the release on the ground of mistake.” Id. at 289.

Upon examination of the two releases signed by Lautieri prior to the subject triathlon, it is evident that he executed an unambiguous release of the third-party defendant, William Fiske. The USA Triathlon Annual Licence Application Waiver clearly and unambiguously releases “RACE DIRECTORS” from “any and all claims, losses or liabilities . . .” Fiske is listed as the “Race Director” on the 2000 USA Triathlon Event Sanction Application submitted to USAT. Furthermore, [*11] the Wet ‘N’ Wild Triathlon Application releases “Fiske Independent Race Management, the sponsoring organization, companies, agents, representatives, assigns and successors from all claims of action . . .” To the extent that Bae argues that the phrase “agents, representatives, assigns and successors” might refer to the phrase “sponsoring organization,” and that Fiske Independent Race Management–while not a legal entity–does not actually refer to William Fiske, individually, such interpretations are not reasonable given the plain meaning of the waiver language. 5 Nevertheless, even if this Court were to hold that the Wet ‘N’ Wild Triathlon Application was sufficiently ambiguous to render the waiver unenforceable, the language of the USA Triathlon Annual Licence Application Waiver is unambiguous and releases Fiske from liability. Thus, Fiske’s motion for summary judgment, as it relates to Bae’s claim of negligence against him, is well founded.

5 William Fiske used the name “Fiske Independent Race Mgt.” and “F.I.R.M” on the 2000 USA Triathlon Event Sanction Application regarding the Wet ‘N’ Wild Triathlon. Since there is no evidence in the record that “Fiske Independent Race Mgt.” or “F.I.R.M” are incorporated entities, or that William Fiske filed a business certificate in Massachusetts under these names, William Fiske is not afforded any legal protection by virtue of the use of these fictional business entities. See Pedersen v. Leahy, 397 Mass. 689, 691, 493 N.E.2d 486 (1986).

[*12] This analysis, however, does not end the matter. [HN5] Both the SJC and the Appeals Court “have noted that releases are effective against liability for ordinary negligence.” Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass.App.Ct 17, 18, 687 N.E.2d 1263 (1997) (emphasis in original), citing Lee v. Allied Sports Associates, Inc., 349 Mass. 544, 551, 209 N.E.2d 329 (1965). In Zavras, the Appeals Court, citing reasons of public policy, held that the owner of a premises at which organized dirt bike races were held did not exempt itself from liability for gross negligence by requiring participants in races to sign a release as a condition of participating. 44 Mass.App.Ct. at 18-19. See also, Restatement (Second) of Contracts § 195 (1981) (“A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy”). The Zavaras court noted that there is “substantial authority . . . [for] the position that while a party may contract against liability for harm caused by its negligence, it may not do so with respect to its gross [*13] negligence.” 44 Mass.App.Ct. at 19.

The present case is indistinguishable from Zavras. Here, Lautieri signed two valid waivers releasing Fiske, among others, from any and all liability that might arise from his participation in the subject triathlon race. While these waivers are sufficient to release Fiske from all liability for harm caused by his own negligence, they do not release him from his own gross negligence.

Thus, for purposes of determining contribution, the question for this Court becomes whether a finder of fact could find Fiske liable to Lautieri for gross negligence. Based on the summary judgment record viewed in a light most favorable to Bae, a genuine issue of material fact exists concerning whether the accident resulted from Fiske’s gross negligence.

[HN6] Gross negligence is defined as “very great negligence, or the absence of slight diligence, or the want of even scant care.” Zavras, 44 Mass.App.Ct. at 20, quoting Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505 (1919). 6 As this definition is necessarily vague, it is important to note that courts have found that “industry standards may be some evidence of negligence. [*14] ” Fidalgo v. Columbus McKinnon Corp., 56 Mass.App.Ct. 176, 184, 775 N.E.2d 803 (2002), citing Poirier v. Plymouth, 374 Mass. 206, 211, 372 N.E.2d 212 (1978); Resendes v. Boston Edison Co., 38 Mass.App.Ct. 344, 358, 648 N.E.2d 757 (1995). Bae has submitted the USAT 2000 Event Sanctioning Guidelines & Requirements as evidence of the negligence of Fiske and the other third-party defendants. In the section entitled “Bike,” the USAT triathlon regulations state: “2. It is highly recommended to close the [bike race] road to traffic. If not possible, cone bike lanes with a minimum width of six feet from vehicles . . . 9. Control stoplights/stop sign intersections, traffic hazards and turnarounds with police and an ample amount of volunteers . . . 12. Use ‘Race in Progress’ or ‘Watch for Cyclists’ signs placed along the course to help warn motorists about conditions . . . 23. All turns, turn-arounds, traffic hazards and intersections must be monitored and marked with signs and volunteers. Any intersections with stop signs or stop lights must be controlled by police or professional traffic personnel.” Based on the record before this Court, [*15] it does not appear that Fiske, as Race Director, heeded any of the guidelines described above for the triathlon at issue; rather, he left the intersection at which Lautieri collided with Bae open to traffic, uncontrolled by police or volunteers, unmarked with warnings, and unmonitored. Therefore, this Court cannot say that there is no genuine dispute as to whether a failure to heed any of the triathlon industry guidelines regarding intersections, which left oncoming drivers totally unaware of the possible dangers that awaited them, constitutes gross negligence. See Chiacchia v. Lycott Environmental Research, Inc., 4 Mass. L. Rptr. 399, 1995 WL 1146824, *10 (Mass.Super.) (finding that the multiple ways in which the defendant’s investigation of certain property “failed to conform to established standards in the industry lead the court to conclude that [defendant's] negligence in this matter [amounted] to gross negligence”).

6 [HN7] “Negligence, without qualification and in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances. It is a want of diligence commensurate with the requirement of the duty at the moment imposed by the law.

[HN8] “Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence . . . It falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injure.” Altman, 231 Mass. at 591-92.

[*16] While Bae has specifically pled negligence, and not gross negligence, this Court has considered the summary judgment motion as if a claim for gross negligence against all of the third-party defendants has been made. [HN9] “Under current Massachusetts State practice there is no requirement that a complaint state the correct substantive theory of the case.” Gallant v. Worcester, 383 Mass. 707, 709, 421 N.E.2d 1196 (1981), citing Mass.R.Civ.P. 8(a)(2); Mass.R.Civ.P. 54 (c). Even though it is sound practice to state all possible claims, the SJC has held that “a complaint is not subject to dismissal if it would support relief on any theory of law.” Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89, 390 N.E.2d 243 (1979) (emphasis in original), citing Thompson v. Allstate Ins. Co., 476 F.2d 746, 749 (5th Cir. 1973). Thus, courts are generally “obligated to consider each of the alternative theories of law . . . on which [the complaining party's] action might be maintained.” Id. Several courts in other jurisdictions have permitted a plaintiff to proceed with a claim for gross negligence after having only pled a claim for negligence. [*17] See, e.g., McTavish v. Chesapeake and Ohio Railroad Co., 485 F.2d 510, 512 (4th Cir.1973) (holding that Kentucky law permitted a claim of gross negligence to flow from an allegation of “negligence and carelessness”); Smith v. Hill, 510 F. Supp. 767, 775 (D.Utah 1981) (upon review of pleading and briefs court assumed that plaintiff “intended to plead that the [defendants] were grossly negligent”). Accordingly, because gross negligence may be considered an alternative theory of a standard negligence claim, Bae should be permitted to proceed with her claim of gross negligence against the third-party defendants. See Altman, 231 Mass. at 593 (holding that a plaintiff has the right to insist that a jury be instructed on the distinction between negligence and gross negligence at trial).

Accordingly, Fiske may be held liable for contribution to any successful claim for gross negligence that Lautieri could have made against Fiske at the time of the accident.

B. USAT

USAT argues that no duty exists between itself and the individuals who choose to participate in the triathlon. [HN10] Neither the SJC nor the Appeals Court has specifically ruled [*18] on whether a duty of care is owned to participants in an athletic event by a sanctioning body of the subject sport when that race takes place on public property.

USAT argues that the reasoning in Gauvin v. Clark, 404 Mass. 450, 537 N.E.2d 94 (1989), compels the application of a recklessness standard in the present case. In Gauvin, the SJC held that “personal injury cases arising out of an athletic event must be predicted on reckless disregard of safety,” on grounds that “vigorous and active participation in sporting events should not be chilled by the threat of litigation.” Id. at 454, citing Kabella v. Bouschelle, 100 N.M. 461, 465, 672 P.2d 290 (1983). The Gauvin case is not controlling here. Bae is not seeking to hold another participant in the triathlon responsible for Lautieri’s injuries. Instead, he is seeking damages from those who organized and sanctioned the event.

[HN11] Whether a defendant owed a duty of care to the plaintiff is a question of law. O’Sullivan v. Shaw, 431 Mass. 201, 204, 726 N.E.2d 951 (2000). In order for Lautieri to establish that USAT owed him a duty of care at the time the accident [*19] occurred, Lautieri would have to establish that such a duty has a “source existing in social values and customs,” Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629, 536 N.E.2d 1067 (1989), or that USAT voluntarily, or for consideration, assumed a duty of care to Lautieri. Mullins v. Pine Manor College, 389 Mass. 47, 52-53, 449 N.E.2d 331 (1983). This is a burden that Lautieri–or, more appropriately, Bae, standing in Lautieri’s shoes–cannot meet. The only involvement of USAT with the subject triathlon was its approval of Fiske’s application, which, in essence, effectively permitted Fiske to be eligible for insurance coverage from the USAT Triathlon liability policy. There is no evidence in the record that suggests that USAT had any obligation or was expected to participate in the planning, operation, or supervision of the race, much less have a representative attend the Wet ‘N’ Wild triathlon. Accordingly, there is no basis on which to conclude that USAT owed Lautieri a duty of care. Assuming, arguendo, that USAT did owe a duty of care to Lautieri, the summary judgment record is devoid of any evidence that would permit a finder of fact [*20] to conclude that USAT acted with gross negligence with regard to Lautieri or the subject triathlon. Therefore, summary judgment in favor of third-party defendant USAT must be allowed.

C. Boys and Girls Clubs of Metrowest, Inc.

A similar finding regarding the B&G Clubs is mandated. While there is evidence that the B&G Clubs provided volunteers for the triathlon, there is no evidence to support a claim of gross negligence against the B&G Clubs or any of its members. Thus, the waivers are operative to release the B&G Clubs from liability. Accordingly, summary judgment for the third-party defendant B&G Clubs must also be allowed.

ORDER

For the foregoing reasons, USA Triathlon, Inc’s and Boys and Girls Clubs of Metrowest, Inc.’s motions for summary judgment are ALLOWED, and, accordingly, judgment shall enter for the third-party defendants on Counts I and III of the third-party complaint, as they relate to claims of contribution, and on Counts I, II, and III of the third-party complaint, as they relate to indemnification. William Fiske, d/b/a Fiske Independent Race Management’s motion for summary judgment on Count II of the third-party complaint is DENIED as it relates [*21] to a claim for contribution.

Kenneth J. Fishman

Justice of the Superior Court

Date: October 29, 2003

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Squires v. Breckenridge Outdoor Education Center, 715 F.3d 867; 2013 U.S. App. LEXIS 9249 (Co Dist 2013)

Squires v. Breckenridge Outdoor Education Center, 715 F.3d 867; 2013 U.S. App. LEXIS 9249 (Co Dist 2013)

KIMBERLY N. SQUIRES, Plaintiff – Appellant, v. BRECKENRIDGE OUTDOOR EDUCATION CENTER, Defendant – Appellee.

No. 12-1199

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

715 F.3d 867; 2013 U.S. App. LEXIS 9249

May 7, 2013, Filed

PRIOR HISTORY: [**1]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. No.1:10-CV-00309-CBS-BNB).
Squires v. Goodwin, 829 F. Supp. 2d 1062, 2011 U.S. Dist. LEXIS 129234 (D. Colo., 2011)

COUNSEL: Michael A. Sink of Perkins Coie LLP, Denver, Colorado (Robert N. Miller and Stephanie E. Dunn of Perkins Coie LLP, Denver, Colorado; Gregory A. Gold of The Gold Law Firm, LLC, Greenwood Village, Colorado; and T. Thomas Metier of Metier Law Firm, LLC, Fort Collins, Colorado, with him on the brief), for Plaintiff – Appellant.
David Werber (John W. Grund, Deana R. Dagner, and Joan S. Allgaier on the brief) of Grund ” Dagner, P.C., Denver, Colorado, for Defendant – Appellee.
JUDGES: Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.
OPINION BY: McKAY
OPINION

[*869] McKAY, Circuit Judge.

Plaintiff Kimberly Squires filed this diversity action against Defendant Breckenridge Outdoor Education Center asserting claims for negligence and gross negligence following a ski accident in which she was injured. The magistrate judge granted Defendant’s motion for summary judgment in part, concluding Plaintiff’s mother, Sara Squires, had validly released any claim for negligence against Defendant by signing an acknowledgment of risk and release of liability. Plaintiff now appeals, arguing summary judgment was inappropriate because the Release [**2] is unenforceable for three reasons: (1) the Release is as an invalid exculpatory agreement; (2) Mrs. Squires’s decision to sign the Release was not voluntary and informed, as required by [*870] Colorado Revised Statute Section 13-22-107; and (3) to the extent the Release is otherwise enforceable, it is nevertheless voidable because it was procured through fraud.

Background

In 2008, Plaintiff, a legally blind child with cerebral palsy and cognitive delays, was severely injured while skiing at Breckenridge Ski Resort in Colorado. Plaintiff was in Breckenridge on a ski trip with the group Camp Fire USA, a non-profit organization dedicated to providing children, including children with disabilities, with opportunities and experiences for growth. Camp Fire USA had contracted with Defendant for a five-day wilderness program that included skiing, a ropes course, and snow tubing.

Before the trip, Defendant sent documents regarding the trip to Camp Fire USA, which in turn circulated them to the participants’ parents, including Mrs. Squires. The documents included a “Letter to Students, Parents and Guardians” (App. at 209 (capitalization omitted)) with an accompanying “Acknowledg[]ment of Risk & Release [**3] of Liability” (App. at 210 (capitalization omitted)).1 The Letter states, in pertinent part:

LETTER TO STUDENTS, PARENTS AND GUARDIANS

Greetings from Breckenridge! The BOEC staff looks forward to having you, your child or your family member join us on a course and would like to share the following information about who we are, what we do and the risks involved.

The Breckenridge Outdoor Education Center (BOEC), a non-profit organization in operation since 1976, provides outdoor adventure programs for people of all abilities. We offer programs for groups and individuals. All courses are tailored to the specific goals and abilities of our students.

. . . .

All of our activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE). The BOEC is accredited by AEE, who independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards. All activities offered are designed to pose appropriate challenges for students. These challenges provide a medium for adventure, learning and personal growth. Your ski lesson or course will involve risk, [**4] which may be greater than most people encounter in their daily lives. Providing high quality programs in a risk-managed environment is a priority at the BOEC. It is, however, impossible to eliminate all [*871] risks. It is very important that you follow all directions given by staff and that you ask questions whenever a procedure or activity is unclear to you.

While the BOEC maintains rigorous standards, it is in everyone’s best interest that risks are disclosed, understood, and assumed prior to participation. After you have reviewed the acknowledg[]ment of risk and waiver of liability on the reverse side of this letter and if you understand and agree with its contents, please sign in the appropriate places. If you are the parent or legal guardian of a student, please read both sides of this document to the student, and if you both agree and understand their content, place YOUR signature in the three appropriate places.

If you have any questions or comments, please do not hesitate to contact us. We welcome your suggestions and feedback.

(App. at 209.)

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1 It is somewhat unclear whether the Release signed by Mrs. Squires was presented to her as a separate document from the Letter or as a single document [**5] with the Letter printed on one side and the Release printed on the reverse. The Letter itself refers to the Release “on the reverse side of this letter.” (App. at 209.) Plaintiff likewise initially represented the Release appeared on the reverse of the Letter. (Appellant’s Opening Br. at 6 (“On the back of the form cover letter, is a standardized “Acknowledg[]ment of Risk & Release of Liability” . . . .).) However, during oral argument, Plaintiff’s counsel maintained this was a disputed issue. (Oral Argument at 4:03-18 (“Some copies of the Release are standalone copies, and one copy happens to have a bleed-over language from the cover letter. It’s not clear . . . that that’s how that actually occurred when the Release was given to [Mrs. Squires] for signature.”) It is undisputed, however, that the Release the director of Camp Fire USA sent to the participants “included the cover letter that explained the waiver” (App. at 207), and that the two documents were sent as a single attachment (App. at 404, 407, 408).

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The accompanying Release provides:

ACKNOWLEDGMENT OF RISK AND RELEASE OF LIABILITY (REQUIRED)

In consideration of being allowed to participate in any way in Breckenridge Outdoor [**6] Education Center (BOEC) programs, and related events and activities . . . I, and/or the minor student, . . . the undersigned:

1. Understand that although the BOEC has taken precautions to provide proper organization, supervision, instruction and equipment for each course, it is impossible for the BOEC to guarantee absolute safety. Also, I understand that I share the responsibility for safety during all activities, and I assume that responsibility. I will make my instructors aware to the best of my ability of any questions or concerns regarding my understanding of safety standards, guidelines, procedures and my ability to participate at any point during any activity.

2. Understand that risks during outdoor programs include but are not limited to loss or damage to personal property, injury, permanent disability, fatality, exposure to inclement weather, slipping, falling, insect or animal bites, being struck by falling objects, immersion in cold water, hypothermia (cold exposure), hyperthermia (heat exposure), and severe social or economic losses that may result from any such incident. I also understand that such accidents or illnesses may occur in remote areas without easy access to medical [**7] facilities or while traveling to and from the activity sites. Further, there may be other risks not known to me or not reasonably foreseeable at this time.
3. Agree that prior to participation, I will inspect, to the best of my ability, the facilities and equipment to be used. If I believe anything is unsafe, I will immediately advise the BOEC staff present of such condition and refuse to participate.
4. Assume all the foregoing risks and accept personal responsibility for the damages due to such injury, permanent disability or death resulting from participating in any BOEC activity.

I hereby release the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands, and causes of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity.

(App. at 210.)

Plaintiff and her mother signed the Release on January 13, 2008. On that date, Mrs. Squires was admittedly aware that her daughter’s trip to Breckenridge and participation in Defendant’s program [*872] would include skiing, although she claims she was unaware of the precise equipment and methods her daughter would be using. Once in Breckenridge, Plaintiff was [**8] paired with a BOEC instructor and equipped with a bi-ski. On the second run of the first day of skiing, Plaintiff was injured when another, unrelated, skier lost control and skied into the tethers connecting Plaintiff and her instructor. The force of the collision caused the instructor to lose control of the tethers, and Plaintiff continued unrestrained down the trail and into a group of trees. She was injured when her bi-ski collided with a tree.

Following the accident, Plaintiff filed this action claiming Defendant’s negligence and gross negligence caused her injuries. Defendant moved for summary judgment, arguing the Release barred Plaintiff’s negligence claim and there was no evidence to support her gross negligence claim. The magistrate judge granted summary judgment in favor of Defendant on Plaintiff’s negligence claim, concluding Plaintiff’s mother had executed an enforceable exculpatory agreement that clearly and unambiguously expressed the parties’ intent to extinguish Defendant’s liability, and her decision to do so was voluntary and informed. The magistrate judge, however, denied Defendant’s motion on Plaintiff’s gross negligence claim. This claim proceeded to a jury, which [**9] found Defendant not liable. Plaintiff now appeals the grant of summary judgment on her negligence claim.

Discussion

HN1Go to this Headnote in the case.“We review a district court’s decision to grant summary judgment de novo, applying the same standard as the district court.” Lundstrom v. Romero, 616 F.3d 1108, 1118 (10th Cir. 2010) (internal quotation marks omitted). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Colorado law applies in this diversity case.

I. Enforceability of the Release

Plaintiff argues the Release is unenforceable and, therefore, does not bar her negligence claim. She reasons that the Release is invalid under the four-part test articulated in Jones v. Dressel, 623 P.2d 370 (Colo. 1981), and that her mother did not make an informed decision, as required by Colorado Revised Statute Section 13-22-107.

A. Validity Under Jones

HN2Go to this Headnote in the case.In Colorado, “[a]greements attempting to exculpate a party from that party’s own negligence have long been disfavored.” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 783 (Colo. 1989). However, “[e]xculpatory agreements are not necessarily void.” Id. at 784. In [**10] determining whether an exculpatory agreement is valid, Colorado courts consider four factors: “(1) 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.” Jones, 623 P.2d at 376. Plaintiff challenges only the magistrate judge’s conclusion on the fourth factor.

Under the fourth factor, “use of the specific terms ‘negligence’ and ‘breach of warranty’ are not invariably required for an exculpatory agreement to shield a party from claims based on negligence and breach of warranty.” Heil Valley, 784 P.2d at 785. Rather, “[t]he inquiry should be whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.” Id. In making this determination, [*873] Colorado courts examine “the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004).

The Release signed by Plaintiff and her [**11] mother clearly and unambiguously waives any negligence claims Plaintiff might have brought against Defendant. The Release begins by indicating it is signed “[i]n consideration of being allowed to participate in any way in Breckenridge Outdoor Education Center (BOEC) programs, and related events and activities.” (App. at 104.) It then warns that “it is impossible for the BOEC to guarantee absolute safety,” and identifies the potential risk of “loss or damage to personal property, injury, permanent disability, [and] fatality.” (Id.) The Release concludes, after only five short paragraphs, by stating in plain terms that the signor “hereby release[s] the BOEC, its successors, representatives, assigns, and employees from any and all claims, demands and causes of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a BOEC activity.” (Id. (emphasis added).) We perceive no ambiguity in this language. See Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1113 (10th Cir. 2002) (“The agreement covers ‘any and all claims I might state . . . including those claims based on negligence or breach of warranty.’ . . . There is nothing ambiguous about this portion [**12] of the agreement.” (first alteration in original)).

Plaintiff, however, contends the Release does not satisfy the fourth Jones factor because it failed to include that Plaintiff would be skiing using a bi-ski and failed to disclose specific risks associated with this form of adaptive skiing. She argues that Colorado law requires the Release to identify the specific activity being engaged in and describe specific associated risks. In support of this position, Plaintiff quotes from several other releases that have been upheld and claims it was their adequate detailing of risks that led the courts to conclude they were valid under the fourth Jones factor. However, even though the releases quoted by Plaintiff contain more detailed descriptions of the associated risks, their validity did not turn on this fact. Notably, none of the cases Plaintiff relies on evaluated the sufficiency of the description of the risks.

Contrary to Plaintiff’s argument, HN3Go to this Headnote in the case.Colorado law does not require that exculpatory agreements refer to the specific activity in which the plaintiff participated and was injured. See Forman v. Brown, 944 P.2d 559, 563-64 (Colo. App. 1996) (concluding a release that did not mention [**13] the specific activity in which the plaintiff was injured was nevertheless valid because it “unambiguously released defendants from liability for injuries occurring during associated scheduled or unscheduled activities”); Brooks v. Timberline Tours, Inc., 127 F.3d 1273, 1274-75 (10th Cir. 1997) (concluding a release that did not include the specific activity and referred only to “the activity I am about to voluntarily engage in” was valid under Jones). Nor does it require “that an exculpatory agreement describe in detail each specific risk that the signor might encounter. Rather, an exculpatory agreement bars a claim if the agreement clearly reflects the parties’ intent to extinguish liability for that type of claim.” Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996), aff’d sub nom. Lahey v. Twin Lakes Expeditions, Inc., No. 96-1438, 1997 U.S. App. LEXIS 11807, 1997 WL 265093 (10th Cir. May 20, 1997) (unpublished) (citation omitted). The Release clearly reflects precisely such an intent—Plaintiff and her mother agreed, “[i]n consideration of being [*874] allowed to participate in . . . [Defendant's] programs, and related events and activities” to “release [Defendant] from any and all claims . . . and causes [**14] of action, whether resulting from negligence or otherwise, of every nature and in conjunction with a [BOEC] activity.” (App. at 104.)

Plaintiff additionally argues the Release is ambiguous because it does not specifically release claims resulting from the negligence of third parties, such as the skier who collided with Plaintiff, and because it inconsistently allocates risks between herself and Defendant. Plaintiff raises her first theory of ambiguity for the first time on appeal. Because this argument was not properly preserved, we do not consider it. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993) (HN4Go to this Headnote in the case.“[A] party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory.”). Turning then to Plaintiff’s second theory of ambiguity, we agree with the magistrate judge’s conclusion that the Release is not reasonably susceptible to her interpretation, which strains logic. Plaintiff specifically argues the portion of the Release that releases Defendant from liability is rendered ambiguous by the following sentence: “I [**15] understand that I share the responsibility for safety during all activities, and I assume that responsibility.” (App. at 104.) She contends that by “discussing two alternate allocations of risk in the same document, the Release does not clearly and unambiguously express the intent of the parties, and thus, is unenforceable.” (Appellant’s Opening Br. at 23.) However, these two provisions create no such ambiguity. The sentence on which Plaintiff relies clearly expresses the participant’s agreement to share in the responsibility of participating in a safe manner, whereas the release provision clearly expresses the participant’s intent to release Defendant from liability. As the magistrate judge concluded, the two are not mutually exclusive, and the first provision makes it no less clear that Plaintiff’s mother intended to release Defendant from liability for any negligence claim.

Because the Release contains clear and unambiguous language demonstrating Plaintiff’s mother intended to release any negligence claims Plaintiff might have against Defendant, it is valid and enforceable under Jones.

B. Informed Decision Under Colorado Revised Statute Section 13-22-107

We turn then to whether Mrs. [**16] Squires’s consent to the Release was voluntary and informed, as required by Section 13-22-107. Plaintiff argues it was not because her mother did not understand the risks involved with adaptive skiing and, specifically, the use of bi-skis.

In 2002, the Colorado Supreme Court held “that Colorado’s public policy disallows a parent or guardian to execute exculpatory provisions on behalf of his minor child for a prospective claim based on negligence.” Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1237 (Colo. 2002), superseded by statute, Colo. Rev. Stat. § 13-22-107(3). The following year, the General Assembly superseded Cooper through enactment of Section 13-22-107(3). Under this section,HN5Go to this Headnote in the case. “[a] parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.” Colo. Rev. Stat. § 13-22-107(3). The statute “declare[s] that parents have a fundamental right to make decisions on behalf of their children, including deciding whether the children should participate in risky activities.” Wycoff v. Grace Cmty. Church of the Assemblies of God, 251 P.3d 1260, 1264 (Colo. App. 2010). “So long as the decision is voluntary and informed, the decision should be given [**17] the same dignity as decisions [*875] regarding schooling, medical treatment, and religious education . . . .” Colo. Rev. Stat. § 13-22-107(1)(a)(V).

The Colorado Court of Appeals has “assume[d] that the General Assembly was aware of the Jones test when it enacted section 13-22-107(1)(a)(V), but required something more for the waiver of a minor’s prospective negligence claims.” Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 952 (Colo. App. 2011) (citation omitted). In addition to the Jones factors, “[t]he General Assembly required that the consent to waiver by a parent be ‘voluntary and informed.’” Id. “A parent’s decision is informed when the parent has sufficient [*876] information to assess the potential degree of risks involved, and the extent of possible injury.” Id.

Since the enactment of Section 13-22-107, the Colorado Supreme Court has not addressed whether a release satisfies the voluntary and informed requirement of Section 13-22-107(1)(a)(V). We must therefore attempt to predict how Colorado’s highest court would interpret this Section. See FDIC v. Schuchmann, 235 F.3d 1217, 1225 (10th Cir. 2000). In doing so, we “consider . . . cases from the Colorado Court of Appeals only as they may [**18] aid our ability to predict how the Colorado Supreme Court might decide.” Browning v. Am. Family Mut. Ins. Co., 396 F. App’x 496, 502 n.14 (10th Cir. 2010).

The Colorado Court of Appeals has twice considered whether a parent’s consent to release prospective negligence claims on behalf of a minor child was voluntary and informed, as required by Section 13-22-107(1)(a)(V). On the first occasion, the Colorado Court of Appeals determined it “need not set forth . . . precisely how much information is required for a parental release to satisfy the statute” because “[t]here is no information in [the] one-page registration form describing the event activities, much less their associated risks.” Wycoff, 251 P.3d at 1264. There, the plaintiff was injured while being towed in an innertube behind an ATV on a frozen lake as part of her participation in a three-day event called “Winterama 2005.” Id. at 1263. Before attending the event, the plaintiff’s mother signed a one-page registration and information form, which contained a purported release in the following paragraph:

I give permission for my child to participate in . . . Winterama 2005 and all activities associated with it. I further give consent [**19] for any medical treatment necessary to be given to my child in case of injury or sickness. I will not hold Grace Community Church or it’s [sic] participants responsible for any liability which may result from participation. I also agree to come and pick up my child should they not obey camp rules.

Id. (emphasis and correction in original). Although the plaintiff knew the Winterama activities would include riding on an ATV-towed innertube, her mother did not. The court concluded that the mother’s waiver was not informed because the registration and information form did “not indicate what the activities would involve and certainly d[id] not suggest they would include ATV-towed inner-tube excursions around a frozen lake.” Id. at 1264. As a result, there was no information from which the plaintiff’s parents could “assess the degree of risk and the extent of possible injuries” from her participation in Winterama. Id. at 1265.

Shortly after the Wycoff decision, the Colorado Court of Appeals again addressed whether a parent’s consent to release prospective negligence claims on behalf of her child was informed. Borrowing from the language used in Wycoff, the court began by stating, HN6Go to this Headnote in the case.“A parent’s [**20] decision is informed when the parent has sufficient information to assess the potential degree of risks involved, and the extent of possible injury.” Hamill, 262 P.3d at 952 (citing Wycoff, 251 P.3d at 1265). In addressing the degree of risk, the court concluded the plaintiff’s mother was sufficiently informed about the risks involved in horseback riding, the activity in which the plaintiff was injured, because she “knew her daughter would be riding horses and she was advised that there were risks, known and unknown, associated with the activity.” Id. at 953. In reaching this conclusion, the court first relied on the undisputed fact that the plaintiff’s mother “knew the activities [the camp] offered,” because her daughter “had attended [the camp] and ridden the camp horses for two years before the accident.” Id. at 952. In addition, “[t]he agreement clearly indicated that horseback riding was an activity available to campers.” Id. The agreement further identified some of the “risks associated with participation in any camping activities,” and emphasized that “a complete listing of inherent and other risks is not possible” and there are even “risks which cannot be anticipated.” Id. at 949 [**21] (emphasis omitted). The court finally considered the fact that the plaintiff’s mother “never contacted [the camp] to discuss the release form, and had no questions about the language of the release form when she signed it.” Id. at 953. In light of all of this evidence, the court concluded the plaintiff’s mother was adequately informed of the risks involved with horseback riding. The fact that she “may not have contemplated the precise mechanics of her daughter’s fall d[id] not invalidate the release and d[id] not create a genuine issue of material fact.” Id. The relevant inquiry was whether the plaintiff’s mother was aware the plaintiff would be riding horses and was advised there were risks associated with that activity, which she was.

The court then turned to whether the plaintiff’s mother was provided with sufficient information “to assess the extent of possible injuries to [her daughter].” Id. In making this determination, the court again considered both the language of the release and the plaintiff’s mother’s independent knowledge and experience. The release contained broad language waiving “any claims of liability, for any injury, even death.” Id. (internal quotation marks omitted). [**22] The plaintiff’s mother was further aware that Christopher Reeve, whom she knew personally, had been injured falling off a horse, and was therefore “aware that there were significant risks associated with horseback riding.” Id. The court thus concluded that the agreement adequately disclosed the extent of potential injuries; it “did not need to include an exhaustive list of particularized injury scenarios to be effective.” Id.

Before turning to whether Plaintiff’s mother’s consent to release prospective negligence claims against Defendant was informed, we must first address the scope of the evidence we may consider in making this determination. The Colorado courts have yet to specifically address this issue. In Wycoff, the court “assume[d] for purposes of th[e] case that a facially deficient exculpatory contract could be cured by extrinsic evidence.” 251 P.3d at 1264. Relying on this statement, Plaintiff contends our evaluation under Section 13-22-107(1)(a)(V) must be limited to the four corners of the Release unless we first determine that the Release itself is facially deficient, in which case the Release would be invalid under Jones. Defendant, on the other hand, maintains we may [**23] properly consider the Letter that accompanied the Release as well as Mrs. Squires’s actual knowledge on the day she signed the Release.

[*877] We predict the Colorado Supreme Court would likely follow the approach advocated by Defendant and adopted by the Colorado Court of Appeals in Hamill—in determining whether a parent’s consent to release prospective negligence claims is voluntary and informed, the parent’s actual knowledge and the information provided in connection with the release should be considered in addition to the language of the release itself. Unlike the fourth factor of the common-law Jones test, which focuses on whether the agreement itself expressed the parties’ intention in clear and unambiguous terms, the focus of the voluntary and informed requirement of Section 13-22-107(1)(a)(V) is on the parent’s decision. If we were to limit our review to the language of the Release itself, we would not be in a position to adequately evaluate whether the parent’s decision was informed. HN7Go to this Headnote in the case.To “give[] effect to the General Assembly’s intent in enacting” Section 13-22-107, Carlson v. Ferris, 85 P.3d 504, 508 (Colo. 2003)—that a parent’s decision to release his or her child’s prospective negligence [**24] claims be honored “[s]o long as the decision is voluntary and informed,” Colo. Rev. Stat. § 13-22-107(1)(a)(V)—we must be able to consider the relevant information the parent had and was provided in order to make that decision. Indeed, were we to limit our review to the language of the Release itself, it would put the General Assembly’s enactment of § 13-22-107 at odds with Jones. Providers of recreational activities would be required to incorporate all relevant information they supplied to parents within the release itself while simultaneously ensuring the release is not “inordinately long or complicated,” Heil Valley, 784 P.2d at 785. To avoid such a result and give the fullest effect to the General Assembly’s intent, we consider not only the language of the Release, but also the information Defendant provided to Plaintiff and Mrs. Squires in connection with the Release as well as Mrs. Squire’s actual knowledge on the date she signed the Release.

Considering this evidence, we conclude Mrs. Squires’s decision to release Plaintiff’s prospective negligence claims against Defendant was informed. Mrs. Squires had sufficient information from which to evaluate the degree of risk Plaintiff [**25] faced. She admittedly knew “when she signed the document . . . that her daughter was going on a ski trip.” (App. at 139.) The Letter addressed to the students and their parents specifically referred to “[y]our ski lesson” (App. at 209), and the accompanying participant application identified “Sit-Down” and “Bi-ski” as among the “Adaptive Ski Method[s]” (App. at 410) offered by Defendant. The Letter further informed Mrs. Squires that Plaintiff’s “ski lesson . . . will involve risk, which may be greater than most people encounter in their daily lives.” (App. at 209.) The Release reaffirmed that “it is impossible for BOEC to guarantee absolute safety,” and warned that in addition to the “risks during outdoor programs,” including “falling,” “there may be other risks not known . . . or not reasonable foreseeable at this time.” (App. at 210.) After receiving this information, Mrs. Squires did not contact Defendant to discuss the Release and did not inquire as to the risks that were going to be involved with the ski trip. Although Mrs. Squires “may not have contemplated the precise mechanics of her daughter’s fall,” including the precise mechanics of skiing with a bi-ski, this fact “does [**26] not invalidate the release.” Hamill, 262 P.3d at 953. Like the mother in Hamill, Mrs. Squires “knew her daughter would be [skiing] and she was advised that there were risks, known and unknown, associated with the activity.” Id.

Mrs. Squires likewise had sufficient information from which to assess the extent [*878] of possible injuries to Plaintiff. The Release contained broad language releasing “any and all claims,” “of every nature,” “whether resulting from negligence or otherwise.” (App. at 210.) The Release additionally specifically warned of the possibility of “injury, permanent disability, fatality . . . and severe social or economic losses that may result from any such incident.” (Id.) Contrary to Plaintiff’s argument, the Release “did not need to include an exhaustive list of particularized injury scenarios,” such as the possibility of colliding with a tree after the instructor lost control of the tethers, “to be effective.” Hamill, 262 P.3d at 953.

We conclude the Release satisfies both the Jones test and the voluntary and informed requirement of Section 13-22-107 and is, therefore, enforceable.

II. Fraudulent Inducement

Plaintiff argues in the alternative that even if the Release is [**27] enforceable, it should nevertheless be set aside because it was procured through fraud.2 HN8Go to this Headnote in the case.“A release is an agreement to which the general contract rules of interpretation and construction apply. Like any contract, a release procured through fraud can be set aside.” Chase v. Dow Chem. Co., 875 F.2d 278, 281 (10th Cir. 1989) (internal quotation marks and citation omitted). To establish fraud, a plaintiff must prove

(1) a fraudulent misrepresentation of material fact was made by the defendant; (2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false; (3) the plaintiff relied on the misrepresentation; (4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and (5) the reliance resulted in damages.

Barfield v. Hall Realty, Inc., 232 P.3d 286, 290 (Colo. App. 2010). Furthermore, “[t]he misrepresentation must be made with the intent to deceive.” Club Valencia Homeowners Ass’n, Inc. v. Valencia Assocs., 712 P.2d 1024, 1026 (Colo. App. 1985).

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2 Plaintiff first alluded to this argument in the hearing on Defendant’s motion for summary judgment. [**28] The magistrate judge then allowed supplemental briefing on the issue. In its response to Plaintiff’s supplemental brief, Defendant argued Plaintiff’s late reliance on the fraud defense “is neither proper nor excusable.” (App. at 378.) In its order, the magistrate judge considered Plaintiff’s fraud defense without discussing its timeliness or procedural propriety. Defendant has not argued on appeal that the magistrate judge erred in considering Plaintiff’s argument. We therefore have no occasion to address whether Plaintiff’s belated fraud defense was properly considered in the first instance.

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Plaintiff contends the Letter, which accompanied the Release, contained three fraudulent misrepresentations: (1) “All of [Defendant's] activities are conducted in a manner consistent with the highest standards, as defined by the Association for Experiential Education (AEE)”; (2) “The BOEC is accredited by AEE”; and (3) AEE “independently reviews the policies, practices and educational components of applicant organizations and accredits those that meet their high standards.” (App. at 209.) However, Plaintiff has offered no evidence that statements two and three were false; that is, Plaintiff has [**29] pointed to no evidence that Defendant, generally, was not accredited by AEE or that AEE does not perform the functions described in statement three. Plaintiff’s argument then, hinges on the allegedly fraudulent misrepresentation in the first statement.

Plaintiff maintains the first statement constitutes a fraudulent misrepresentation because AEE does not have standards for [*879] adaptive skiing, and Defendant’s adaptive ski program is therefore at least one activity that is not “conducted in a manner consistent with the highest standards, as defined by [AEE].” (Id.) Accepting, without deciding, that this statement constitutes a fraudulent material misrepresentation, Plaintiff has failed to provide any evidence that Mrs. Squires relied on this misrepresentation in deciding to sign the Release. Plaintiff points to no evidence that Mrs. Squires relied on the representation that Defendant’s adaptive ski program was conducted in a manner consistent with AEE standards. Rather, she relies on her mother’s statements that she “believed that BOEC was an accredited program” (App. at 354), and “that they had an [sic] accredited certified instructors that would manage a safe program” (App. at 357). (See [**30] also App. at 353 (“[T]hey were, you know, accredited and certified and they’d been doing it for a number of years.”), 356 (“That she would be with certified accredited people in a safe program that they could supervise appropriately.”).) These statements, even when viewed in the light most favorable to Plaintiff, do not support her position that Mrs. Squires relied on the representation that Defendant’s adaptive ski program was conducted in a manner consistent with AEE’s standards.3 Notably, Mrs. Squires made no mention of AEE or its standards when discussing her beliefs about Defendant’s program. Because Plaintiff has failed to provide any evidence that Mrs. Squires relied on a material misrepresentation made by Defendant in the Letter, the magistrate judge properly concluded Plaintiff failed to establish Mrs. Squires was fraudulently induced to sign the Release.

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3 While Mrs. Squires’s testimony may suggest she believed that Defendant’s adaptive ski program was accredited by AEE, the Letter made no such representation. Rather, this purported representation was inferred by Mrs. Squires from the three statements listed above in connection with the representation that “all courses are [**31] tailored to the specific goals and abilities of [the] students, all activities offered are designed to pose appropriate challenges for students, and the BOEC maintains rigorous standards.” (Appellant’s Opening Br. at 31 (internal quotation marks and brackets omitted).) Mrs. Squires’s misunderstanding of Defendant’s Letter does not excuse her from the consequences of signing the Release. See Shoels v. Klebold, 375 F.3d 1054, 1070 (10th Cir. 2004) (“Misunderstanding, not misrepresentation, was the basis for Appellants’ acceptance, and so they cannot evade the normal limitations on relief from the consequences of their mistake.”).

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Conclusion

For the foregoing reasons, we AFFIRM the magistrate judge’s order granting summary judgment to Defendant on Plaintiff’s negligence claim.

WordPress Tags: Squires,Breckenridge,Outdoor,Education,Center,LEXIS,Dist,Plaintiff,Appellant,Defendant,Appellee,STATES,COURT,APPEALS,TENTH,CIRCUIT,PRIOR,HISTORY,APPEAL,FROM,DISTRICT,COLORADO,Goodwin,Supp,Colo,CASE,SUMMARY,PROCEDURAL,POSTURE,negligence,accident,judgment,OVERVIEW,agreement,decision,Stat,extent,fraud,agreements,information,degree,misrepresentation,letter,OUTCOME,TERMS,daughter,instructor,manner,quotation,guardian,horse,action,LexisNexis,Headnotes,Civil,Procedure,Appellate,Review,Standards,General,fact,Torts,Defenses,Exculpatory,Clauses,factors,existence,intention,Under,fourth,factor,Rather,determination,jargon,length,complication,failure,theory,Interpretation,statute,parents,decisions,treatment,addition,Jones,waiver,injury,Contracts,Contract,Conditions,Provisions,Waivers,construction,representation,reliance,COUNSEL,Michael,Sink,Perkins,Coie,Denver,Robert,Miller,Stephanie,Dunn,Gregory,Gold,Firm,Greenwood,Village,Thomas,Metier,Fort,Collins,David,Werber,John,Grund,Deana,Dagner,Joan,Allgaier,JUDGES,HARTZ,McKAY,BRIEN,OPINION,Judge,magistrate,Sara,Release,Section,Background,Resort,Camp,Fire,disabilities,opportunities,growth,participants,Students,Guardians,Acknowledg,Risk,Greetings,BOEC,member,adventure,abilities,individuals,goals,Association,Experiential,policies,components,applicant,lesson,environment,participation,student,signature,suggestions,feedback,Footnotes,argument,Oral,Some,director,attachment,ACKNOWLEDGMENT,events,Understand,precautions,supervision,instruction,equipment,Also,instructors,guidelines,procedures,exposure,insect,immersion,incident,accidents,illnesses,areas,facilities,Further,Agree,Assume,death,successors,employees,conjunction,January,Once,collision,trees,tree,injuries,jury,Discussion,Lundstrom,Romero,Dressel,Heil,Valley,Ranch,Simkin,conclusion,Chadwick,Colt,Ross,Outfitters,paragraphs,emphasis,Mincin,Vail,Holdings,alteration,descriptions,sufficiency,description,Contrary,Forman,Brown,defendants,Brooks,Timberline,Tours,Lahey,Covington,Twin,Lakes,Expeditions,citation,Lyons,Jefferson,Bank,Trust,logic,allocations,participant,provision,Supreme,policy,Cooper,Aspen,enactment,Wycoff,Grace,Church,Assemblies,Hamill,Cheley,Camps,requirement,FDIC,Schuchmann,registration,event,Winterama,paragraph,permission,correction,Although,tube,horses,campers,mechanics,knowledge,Christopher,Reeve,scenarios,scope,purposes,statement,evaluation,connection,Carlson,Ferris,odds,Providers,Squire,Down,Adaptive,Method,Fraudulent,Inducement,Chase,Chem,Barfield,Hall,Club,Valencia,Homeowners,Assocs,response,instance,misrepresentations,statements,hinges,testimony,consequences,Shoels,Klebold,basis,Appellants,acceptance,limitations,relief,AFFIRM,unenforceable,three,enforceable,voidable,horseback,novo,movant,whether,four,signor,behalf,five,capitalization,hereby,skier,innertube


Nutley v SkyDive the Ranch, 2009 NY Slip Op 6153; 883 N.Y.S.2d 530; 2009 N.Y. App. Div. LEXIS 5999 (N.Y. Appel. First 2009)

Nutley v SkyDive the Ranch, 2009 NY Slip Op 6153; 883 N.Y.S.2d 530; 2009 N.Y. App. Div. LEXIS 5999 (N.Y. Appel. First 2009)

[*1] Lisa Nutley, Plaintiff-Respondent, v SkyDive the Ranch, Defendant-Appellant.

862, 108665/06

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

2009 NY Slip Op 6153; 883 N.Y.S.2d 530; 2009 N.Y. App. Div. LEXIS 5999

August 11, 2009, Decided

August 11, 2009, Entered

PRIOR HISTORY: Nutley v. Skydive The Ranch, 22 Misc. 3d 1122A, 881 N.Y.S.2d 365, 2009 N.Y. Misc. LEXIS 274 (2009)

CORE TERMS: counterclaim, summary judgment, sport, attorney’s fees, enter judgment, recreational activity, parachute, default

COUNSEL: [***1] The Law Offices of David M. Schreier, New York (Steven E. Kurtz of counsel), for appellant.

McMahon, Martine & Gallagher, LLP Brooklyn (Patrick W. Brody of counsel), for respondent.

JUDGES: Tom, J.P., Friedman, Catterson, Moskowitz, Richter, JJ.

OPINION

[**530] Order, Supreme Court, New York County (Martin Shulman, J.), entered January 28, 2009, which denied defendant’s motion for summary judgment dismissing the complaint and for a default judgment on its counterclaim for attorney’s fees and [**531] costs, unanimously modified, on the law, the motion granted to the extent of awarding defendant summary judgment, the complaint dismissed, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly. Plaintiff is directed to respond to defendant’s counterclaims within 60 days of the date of this order.

Defendant demonstrated prima facie entitlement to summary judgment on the doctrine of assumption of risk. Plaintiff was engaged in a sport or recreational activity, the commonly appreciated risks of which are inherent in, and arise out of, the nature of the sport generally and are consequent upon such participation (see e.g. Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]). Here, the risk [***2] of the main parachute failing to open during a tandem sky dive was perfectly obvious. Indeed, plaintiff was given a reserve parachute. Plaintiff failed to raise a triable issue of fact as to whether the injury-causing event resulted from defendant’s negligence, creating unique and dangerous conditions beyond those inherent in the sport (id. at 485).

So much of the waiver and release signed by plaintiff as purports to exempt defendant from its own negligence is void under General Obligations Law § 5-326. Severance of that provision leaves the rest of the contract intact (see Caruso v Allnet Communication Servs., 242 AD2d 484, 485, 662 N.Y.S.2d 468 [1997]). As to defendant’s counterclaims, however, we note that whether agreements not to sue a defendant and to pay its attorney’s fees and litigation costs might transgress the public policy of promoting recreational activities advanced by § 5-326 does not appear to have been considered by the courts (cf. Ciofalo v Vic Tanney Gyms, 10 NY2d 294, 297, 177 N.E.2d 925, 220 N.Y.S.2d 962 [1961] [exculpatory clause not barred by "overriding public interest"]), the parties have not briefed the issue, and we do not reach it (see Brown v Christopher St. Owners Corp., 87 NY2d 938, 939, 663 N.E.2d 1251, 641 N.Y.S.2d 221 [1996]; Bacchiocchi v Ranch Parachute Club, 273 AD2d 173, 176, 710 N.Y.S.2d 54 [2000]). [***3] Defendant’s motion to enter judgment by default (CPLR 3215[c]) was appropriately denied in the exercise of discretion (cf. Charles F. Winsom Gems v D. Gumbiner, Inc., 85 A.D.2d 69, 71, 448 N.Y.S.2d 471 [1982], [*2] affd 57 NY2d 813, 441 N.E.2d 1118, 455 N.Y.S.2d 600 [1982]), and plaintiff should be afforded the opportunity to assert any defenses she might have to defendant’s counterclaims.

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

ENTERED: AUGUST 11, 2009

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Wynne, Jr., v. Summerland, Inc., 2012 Conn. Super. LEXIS 2684 (Conn Super 2012)

Wynne, Jr., v. Summerland, Inc., 2012 Conn. Super. LEXIS 2684 (Conn Super 2012)

John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers v. Summerland, Inc. dba Camp Kenwood et al.

LLICV095006358S

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF LITCHFIELD AT LITCHFIELD

2012 Conn. Super. LEXIS 2684

November 1, 2012, Decided

November 2, 2012, Filed

NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

JUDGES: [*1] John W. Pickard, J.

OPINION BY: John W. Pickard

OPINION

MEMORANDUM OF DECISION

This is a wrongful death action arising out of the death of Hunter E. Brothers (“Brothers”), a thirteen-year-old camper at Camp KenWood, a summer youth camp in Kent, Connecticut. Brothers died while engaged in a mountain biking activity supervised by two counselors from the camp. The defendant, Summerland, Inc. d/b/a Camp KenWood operated the camp. The defendants, David B. Miskit and Sharon B. Miskit (“the Miskits”), are directors of Camp KenWood. All defendants have moved for summary judgment (#152). The plaintiff, John F. Wynne, Jr., Administrator of the Estate of Hunter E. Brothers, objects (#158). The court heard oral argument on September 17, 2012.

I. Personal Liability of David and Sharon Miskit

The first basis of the motion for summary judgment is stated by the defendants as follows: “There is no genuine issue of material fact that David Miskit and Sharon Miskit, as officers of a corporation, do not incur personal liability for the corporation’s torts merely because of their official position. There is no evidence of any independently tortious conduct on the part of either David or Sharon Miskit, nor is there any evidence [*2] that Summerland served merely as their alter ego. Thus, summary judgment should enter in favor of David Miskit and Sharon Miskit.”

Paragraph 30 of the third count of the plaintiff’s complaint is based on negligence and is directed against the Miskits as follows: “David Miskit, as President of Summerland, and David and Sharon Miskit, as Directors of Camp KenWood, owed a duty of care to Brothers, because Brothers was a minor child who was entrusted to the care of David and Sharon Miskit, and under Section 19-13-B27a(s) of the Regulations of Connecticut State Agencies, which provides as follows: ‘The camp director shall be responsible at all times for the health, comfort and safety of campers.’” Thus, David Miskit is sued as President of Summerland, Inc. and as a director of Camp Kenwood. Sharon Miskit is sued only as a director of Camp Kenwood.

The Miskits claim that there is no genuine issue of material fact that they do not incur personal liability for the corporations’ torts merely because of their official position. The plaintiff argues that the Miskits, as directors of Camp KenWood, owed Hunter a duty of care imposed by the statutes and regulations of the State of Connecticut. The [*3] plaintiff did not present a serious argument that David Miskit owed a duty of care to Brothers merely because he was the President of Summerland, Inc.

Before discussing the Miskits’ basis for summary judgment, it is necessary to distinguish between directors of corporations and directors of youth camps. [HN1] The position of director of a youth camp is one which is provided for in the statutes which regulate youth camps. C.G.S. §19a-422(c) provides: “[T]here shall be adequate and competent staff, which includes the camp director or assistant director, one of whom shall be on site at all times the camp is in operation, activities specialists, counselors and maintenance personnel, of good character and reputation.” C.G.S. §19a-428(a) provides that: “The Commissioner of Public Health shall adopt regulations, in accordance with the provisions of chapter 54, relating to the safe operation of youth camps, including, but not limited to, personnel qualifications for director and staff . . .”

The regulations adopted by the Commissioner of Public Health pertaining to youth camps are found in Regs., Connecticut State Agencies §19-13-B27a. Subsection (n) of that regulation provides, in part: [HN2] “(1) No person [*4] shall establish, conduct or maintain a youth camp without adequate and competent staff. (2) The camp director shall be over the age of twenty-one and of good character, shall not have been convicted of any offense involving moral turpitude, shall be certified as mentally competent by a physician, shall not use improperly any narcotic or controlled drug, and shall uphold and maintain the standards required under the Youth Camping Act. Except for those persons who have already served at least one summer as a camp director, a camp director shall have at least sixteen weeks administrative or supervisory experience, in an organized camp or in lieu thereof equivalent training or experience in camping satisfactory to the commissioner.” Subsection (s) of that regulation provides [HN3] “Responsibility of management. The camp director shall be responsible at all times for the health, comfort and safety of campers and staff and shall have responsibility for maintaining in good repair all sanitary appliances on the camp ground. He shall promptly prosecute or cause to be ejected from such ground any person who willfully or maliciously damages such appliances.”

[HN4] The statutory and regulatory scheme with [*5] respect to youth camps is clear that the director of a youth camp must be an individual, not a corporation. Also, the position of director of a youth camp is distinct from the position of director of the corporation which owns and operates the summer camp. A youth camp director is an employee and/or an agent of the camp when performing his or her duties. In summary, the director of a youth camp functions as the chief on-site official of the camp and is charged with certain responsibilities including to the safety of campers. Therefore, the statutes and regulations create a duty which the director owes to campers who attend the camp.

Turning to the first basis for summary judgment, the defendants are correct that David Miskit, as President of Summerland, Inc., cannot be liable for the negligence of the corporation absent evidence that he used the corporation as his alter ego. The plaintiff has not made the allegations which would be necessary to pierce the corporate veil. The real ground for the liability of the Miskits rests not on their status as directors or officers of Summerland, Inc., or on piercing the corporate veil, but upon their liability as directors of Camp KenWood.

The motion [*6] for summary judgment and the supporting brief never address the real ground of liability alleged by the plaintiff against the Miskits that as directors of Camp Kenwood they breached their statutory and regulatory duty to be responsible for the health, comfort and safety of the campers including Brothers. Instead, the defendants focus on whether the Miskits can be liable based upon their official capacities at Summerland, Inc. The last two sentences of the defendants’ brief on this point reads: “In short, David and Sharon Miskit have been named as party defendants merely because they are officers of Summerland, Inc. Officers of a corporation, however, do not incur personal liability for its torts merely because of their official position. Inasmuch as there is no evidence of any independently tortious conduct on the part of either David or Sharon Miskit, nor any evidence that Summerland served as their alter ego, they are entitled to summary judgment on all of the plaintiff’s claims.”

[HN5] The statutes and regulations of the State of Connecticut create a duty on the part of camp directors to care for the “health, comfort and safety of campers.” As co-directors of Camp KenWood, the Miskits [*7] are alleged to have breached this duty.1 The documentary evidence submitted by the plaintiff creates a genuine issue of material fact about whether, in fact, the Miskits breached their duty. ” [HN6] Practice Book §17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).

1 In paragraph thirty-one of the third count the plaintiffs allege that David and Sharon Miskit breached their duty of care to Hunter through their negligence, in that:

a. They failed to adequately supervise and train Summerland employees with respect to the use of mountain bicycles by campers, CPR techniques and emergency first aid skills:

b. They failed to provide adequate instruction to Camp KenWood’s campers, including Brothers, in the safety precautions necessary for mountain bicycle trips over steep [*8] and uneven terrain, including but not limited to the negotiation or avoidance of dangerous hills and curves and the adequate securing of a helmet:

c. they failed to have a policy which pre-screened and approved appropriate areas for mountain bicycle riding for campers of various ages;

d. They failed to have a policy that prohibited Camp KenWood’s employees from taking young campers on off-camp premises mountain bicycle trips that were not safe for young children.”

II. Open and Obvious

The defendants’ second basis for summary judgment is that, because the geography of Bald Hill Road was an open and obvious condition, the defendants had no duty to warn Brothers about it. The defendants argue that, as a matter of law, the court should determine that there is clear and undisputed evidence that the risk of riding a bicycle down Bald Hill Road was so open and obvious to thirteen-year-old Brothers that it would negate any duty to warn on the part of the two counselors who were supervising her. In support of that proposition the defendants have presented the court with portions of deposition transcripts and other documents. They argue that the grade and contours of Bald Hill Road were easily observable [*9] by Brothers. Also, the two counselors testified that they stopped with Brothers at the top of Bald Hill Road and told her that the hill got steeper near the bottom and that she would need to control her speed with her brakes. Based upon this discussion, the defendants argue that Brothers was actually aware of the condition of the road. The defendants have cited the court to various cases in which courts have held that dangerous conditions were open and obvious as a matter of law.

The plaintiff argues that the issue of whether the condition of Bald Hill Road is open and obvious is a genuine question of fact which cannot be decided on a motion for summary judgment. I agree. The documentary evidence about Bald Hill Road presents a genuine issue of fact as to whether the steep part of Bald Hill Road can be seen from the top of the hill. Brothers had never been on Bald Hill Road. Whether the discussion she had with the counselors at the top of the hill was sufficient to alert her to the danger is a question of fact as well.

Furthermore, unlike most of the cases cited by the defendants, this is not a premises liability case. There are nine separate allegations of negligence directed against [*10] Summerland, Inc., only one of which relates to a failure to warn. The defendants have not addressed these other allegations of negligence in the motion for summary judgment.

III. Conclusion

For the reasons given above, the motion for summary judgment is denied.

BY THE COURT,

John W. Pickard


Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2

Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2

Benjamin Atkins, a minor, as the only surviving child of Charis Wilson, deceased, by Alexander Kammer, guardian ad litem, Plaintiff-Appellant, v. Swimwest Family Fitness Center a/k/a Swimwest School of Instruction, Inc., Karen Kittelson, and West Bend Mutual Insurance Company, Defendants-Respondents.

No. 03-2487-FT

Supreme Court of Wisconsin

2005 WI 4; 2005 Wisc. LEXIS 2

October 26, 2004, Submitted on Briefs

January 19, 2005, Opinion Filed

Prior History: [**1] Appeal from an order of the Circuit court for Dane County, Michael N. Nowakowski, Judge. L.C. No. 02 CV 3149.

Disposition: Reversed and remanded.

Counsel: For the plaintiff-appellant there were briefs by J. Michael Riley and Axley Brynelson, LLP, Madison, and oral argument by John M. Riley.

For the defendants-respondents there was a brief by Bradway A. Liddle, Sarah A. Zylstra and Boardman, Suhr, Curry & Field, LLP, Madison, and oral argument by Sarah A. Zylstra.

An amicus curiae brief was filed by Patricia Sommer and Otjen, Van Ert, Lieb & Weir, S.C., Madison, on behalf of Wisconsin Insurance Alliance.

Judges: N. Patrick Crooks, J. Patience Drake Roggensack, J. (concurring). Jon P.

Wilcox, J. (dissenting).

Opinion By: N. Patrick Crooks

Opinion:

[*P1] N. Patrick Crooks, J. This case is before the court on certification from the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2001-2002). n1 Benjamin Atkins (Atkins) appealed from an order of the circuit court, which granted summary judgment in favor of Swimwest Family Fitness Center a/k/a Swimwest School of Instruction, Inc., Karen Kittelson, and West Bend Mutual Insurance Company (Swimwest). Atkins filed suit for [**2] the wrongful death of his mother, Dr. Charis Wilson (Wilson), who drowned n2 while using Swimwest’s lap pool. The circuit court held that the guest registration and waiver form signed by Wilson constituted a valid exculpatory provision, releasing Swimwest from liability.

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n1 Unless otherwise indicated all references to Wisconsin Statutes are to the 2001-02 edition. Wisconsin Stat. § (Rule) 809.61 states, in relevant part: “The supreme court may take jurisdiction of an appeal or other proceeding in the court of appeals upon certification by the court of appeals or upon the supreme court’s own motion.”

n2 Wilson was found unconscious at the bottom of Swimwest’s lap pool. Swimwest employees pulled her from the pool and immediately administered CPR. Wilson was then transported by ambulance to University Hospital, where she died the next day, May 4, 2001. An autopsy revealed that death was caused by an Anoxic Brain Injury, the result of drowning.

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[*P2] We conclude that the exculpatory [**3] language in Swimwest’s form is unenforceable, since it is contrary to public policy. The waiver of liability language is, first, overly broad and all-inclusive. The use of the word “fault” on the form did not make clear to Wilson that she was releasing others from intentional, as well as negligent, acts. Second, the form served two purposes, guest registration and waiver of liability for “fault,” and thus failed to highlight the waiver, making it uncertain whether Wilson was fully notified about the nature and significance of the document she signed. Finally, Wilson did not have any opportunity to bargain. If she had decided not to sign the guest registration and waiver form, she would not have been allowed to swim. The lack of such opportunity is also contrary to public policy. Accordingly, we reverse and remand, concluding also that Atkins is entitled to pursue his wrongful death claim.

I

[*P3] Swimwest is mainly an instructional swimming facility located in Madison, Wisconsin. It is equipped with a lap pool that is open to both members and visitors. On May 3, 2001, n3 Wilson, a local physician, visited Swimwest as part of a physical therapy and rehabilitation program. Upon [**4] entering the facility, Wilson was assisted at the front desk by Swimwest employee Arika Kleinert (Kleinert). Kleinert informed Wilson that because she was not a member of Swimwest, she was required to fill out a guest registration card and pay a fee before swimming.

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n3 The actual form signed by Wilson is dated May 2, 2001. The complaint, coroner’s report, and Arika Kleinert’s affidavit all indicate, however, that Wilson signed the form and was found unconscious in the pool on May 3, 2001. The parties have presumed that the date on the form was incorrect.

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[*P4] Kleinert presented Wilson with the guest registration card. The form was preprinted on a five and one-half inch by five and one-half inch card that also contained a standardized “Waiver Release Statement.” This statement appeared below the “Guest Registration,” which requested the visitor’s name, address, phone, reason for visit, and interest in membership. The entire card was printed in capital letters with the same size, font, and color. The waiver [**5] language printed on the card, following the registration information requested, is reproduced below:

WAIVER RELEASE STATEMENT

I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT, WHILE AT SWIMWEST FAMILY FITNESS CENTER. I FURTHER AGREE TO HOLD HARMLESS SWIMWEST FITNESS CENTER, OR ANY OF ITS EMPLOYEES FOR ANY CONDITIONS OR INJURY THAT MAY RESULT TO MYSELF WHILE AT THE SWIMWEST FITNESS CENTER. I HAVE READ THE FOREGOING AND UNDERSTAND ITS CONTENTS.

[*P5] The guest registration and waiver card had just one signature and date line that appeared at the end of the “Guest Registration” and the “Waiver Release Statement.” Wilson completed the requested “Guest Registration” portion and signed at the bottom of the “Waiver Release Statement” without asking Kleinert any questions.

[*P6] Before entering the pool, Wilson told Dan Kittelson, Aquatic Director of Swimwest, that she did not require assistance getting into the water. n4 She was observed entering the pool by Karen Kittelson, part owner of Swimwest, and the lifeguard on duty. Karen Kittelson testified that she saw Wilson swimming the sidestroke up and down the length of the pool.

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

n4 It was established in Atkins’ affidavit that Wilson knew how to swim prior to May 3, 2001.

- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - – [**6]

[*P7] Soon after Wilson began swimming, another Swimwest employee, Elizabeth Proepper (Proepper), spotted Wilson lying motionless underwater near the bottom of the pool. Proepper alerted Karen Kittelson, who pulled Wilson from the pool and administered CPR. Wilson died at the hospital on May 4, 2001. An autopsy was performed, and drowning was listed as the official cause of death on the coroner’s report.

[*P8] Atkins, a minor and Wilson’s only child, filed a wrongful death action against Swimwest through his guardian ad litem. Atkins’ complaint alleged that Swimwest was negligent in the operation of the pool facility, particularly in the management and observation of the pool area, that procedures to safeguard against the risk of drowning were not followed, and that negligence of its employees caused Wilson’s death.

[*P9] The Dane County Circuit Court, the Honorable Michael N. Nowakowski presiding, granted Swimwest’s summary judgment motion and dismissed Atkins’ wrongful death action. The circuit court concluded that the form Wilson signed was sufficient to absolve Swimwest of any liability for Wilson’s death. The court reached its conclusion after considering whether [**7] the exculpatory clause was in contravention of public policy.

[*P10] Atkins appealed the circuit court decision. The court of appeals, Judges Charles P. Dykman, Margaret J. Vergeront, and Paul B. Higginbotham, certified the appeal to this court to clarify Wisconsin law concerning the enforceability of exculpatory clauses in standard liability release forms.

II

[*P11] This case involves review of whether the circuit court appropriately granted Swimwest’s motion for summary judgment. In reviewing the grant of summary judgment, we apply the same methodology used by the circuit court in deciding the motion. Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 80, 557 N.W.2d 60 (1996); see Richards v. Richards, 181 Wis. 2d 1007, 1011, 513 N.W.2d 118 (1994). Although the standard for our review is de novo, we benefit from the analysis of the circuit court.Yahnke v. Carson, 2000 WI 74, P10, 236 Wis. 2d 257, 613 N.W.2d 102. Wisconsin Stat. § 802.08(2) states, in relevant part, that the circuit court may appropriately grant summary judgment if evidence shows “that there is no genuine issue as to any material [**8] fact and that the moving party is entitled to a judgment as a matter of law.”

[*P12] This case turns on the interpretation of Swimwest’s guest registration and waiver form, and whether it relieves Swimwest of liability for harm caused by its negligence. Merten v. Nathan, 108 Wis. 2d 205, 210, 321 N.W.2d 173 (1982). Wisconsin case law does not favor such agreements. Richards, 181 Wis. 2d at 1015; Dobratz v. Thomson, 161 Wis. 2d 502, 468 N.W.2d 654 (1991). While this court has not held that an exculpatory clause is invalid per se, we have held that such a provision must be construed strictly against the party seeking to rely on it. Yauger, 206 Wis. 2d at 81; Merten, 108 Wis. 2d at 210-11.

[*P13] Generally, exculpatory clauses have been analyzed on principles of contract law, see Dobratz, 161 Wis. 2d 502; Arnold v. Shawano County Agr. Soc’y, 111 Wis. 2d 203, 330 N.W.2d 773 (1983), overruled on other grounds, Green Spring Farms v. Kersten, 136 Wis. 2d 304, 317, 401 N.W.2d 816 (1987), and on public policy grounds. See Yauger, 206 Wis. 2d 76; [**9] Richards, 181 Wis. 2d 1007; Merten, 108 Wis. 2d 205; see generally, Restatement (Second) of Contracts, § 195 (1981). n5 However, lately the contractual analysis has not been emphasized, as many of the factors previously reviewed on a contractual basis were reached in the more recent cases, like Richards and Yauger, on public policy grounds. Yauger, 206 Wis. 2d at 86. For a contractual inquiry, we need only “look to the contract itself to consider its validity. Specifically, we examine the facts and circumstances of [the] agreement . . .” Arnold, 111 Wis. 2d at 211, to determine if it was broad enough to cover the activity at issue. If not, the analysis ends and the contract should be determined to be unenforceable in regard to such activity. If the language of the contract does cover the activity, as it does here, we then proceed to an analysis on public policy, which remains the “germane analysis” for exculpatory clauses. Yauger, 206 Wis. 2d at 86.

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n5 Restatement (Second) of Contracts § 195 states, in relevant part:

(1) A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.

(2) A term exempting a party from tort liability for harm caused negligently is unenforceable on grounds of public policy if:

(a) the term exempts an employer from liability to an employee for injury in the course of his employment;

(b) the term exempts one charged with a duty of public service from liability to one to whom that duty is owed for compensation for breach of that duty, or

(c) the other party is similarly a member of a class protected against the class to which the first party belongs.

(3) A term exempting a seller of a product from his special tort liability for physical harm to a user or consumer is unenforceable on grounds of public policy unless the term is fairly bargained for and is consistent with the policy underlying that liability.

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[*P14] We generally define public policy as “’that principle of law under which freedom of contract or private dealings is restricted by law for the good of the community.’” Merten, 108 Wis. 2d at 213 (quoting Higgins v. McFarland, 196 Va. 889, 86 S.E.2d 168, 172 (1955)). In such a review of exculpatory clauses, this court “attempts to accommodate the tension between the principles of contract and tort law that are inherent in such an agreement.” Richards, 181 Wis. 2d at 1016. n6 For guidance on the application of these public policy principles, we examine our two most recent cases considering exculpatory contracts in Wisconsin.

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n6 The basic principles of contract and tort law as applied to exculpatory provisions were made clear in Richards v. Richards, 181 Wis. 2d 1007, 1016, 513 N.W.2d 118 (1994):

The law of contract is based on the principle of freedom of contract; people should be able to manage their own affairs without government interference. Freedom of contract is premised on a bargain freely and voluntarily made through a bargaining process that has integrity. Contract law protects justifiable expectations and the security of transactions. The law of torts is directed toward compensation of individuals for injuries resulting from the unreasonable conduct of another. Tort law also serves the “prophylactic” purpose of preventing future harm; tort law seeks to deter certain conduct by imposing liability for conduct below the acceptable standard of care. Id. (citing Merten v. Nathan, 108 Wis. 2d 205, 211-12, 321 N.W.2d 173).

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[*P15] In Yauger, this court based its determination of the enforceability of an exculpatory clause on two grounds: “First, the waiver must clearly, unambiguously, and unmistakably inform the signer of what is being waived. Second, the form, looked at in its entirety, must alert the signer to the nature and significance of what is being signed.” Yauger, 206 Wis. 2d at 84. Yauger involved a wrongful death action against the owner of a ski hill area. The claim, brought by the parents of a girl who fatally collided with the concrete base of a chair lift tower while skiing, alleged that the defendant negligently failed to pad the lift tower. The defendant filed for summary judgment, relying on the exculpatory provision contained in the family ski pass signed by the girl ‘s father. The waiver read, in part: “’There are certain inherent risks in skiing and that we agree to hold Hidden Valley Ski Area/Skiing Enterprises Inc. harmless on account of any injury incurred by me or my Family member on the Hidden Valley Ski Area premises.’” Id. at 79.

[*P16] In applying the two factors, the court in Yauger held that the release was void as [**12] against public policy. First, this court held that the release was not clear because it failed to include language “expressly indicating Michael Yauger’s intent to release Hidden Valley from its own negligence.” Id. at 84. Without any mention of the word “negligence,” and the ambiguity of the phrase “inherent risks of skiing,” the court held that Yauger was not adequately informed of the rights he was waiving. In regard to the second factor, this court held that the form, in its entirety, did not fully communicate to Yauger its nature and significance, because it served the dual purposes of an application for a season pass and a release of liability. Id. at 87. Furthermore, the waiver was not conspicuous. It was one of five paragraphs on the form and did not require a separate signature. Id.

[*P17] In Richards, the court adopted a slightly different approach to determining the enforceability of exculpatory contracts. Richards involved the wife of a truck driver signing a “Passenger Authorization” release form issued by her husband’s employer. The form claimed to waive liability for “intentional, reckless, and negligent conduct.” She [**13] brought suit to recover for injuries she suffered while riding in her husband’s truck as a passenger. We used a combination of factors to determine that the exculpatory language was contrary to public policy. Richards, 181 Wis. 2d at 1017. The first factor was that the contract served two purposes, neither of which was clearly identified or distinguished. Second, the court held that the release was broad and all-inclusive. Finally, there was little or no opportunity to negotiate or bargain over the contract. Id.at 1011.

[*P18] Applying the factors from Yauger and Richards, we hold that Swimwest ‘s exculpatory clause is in violation of public policy. n7 First, this exculpatory waiver, which uses the word “fault,” is overly broad and all-inclusive. Yauger, 206 Wis. 2d at 85-86; Richards, 181 Wis. 2d at 1017-18. Second, the form, serving two functions and not requiring a separate signature for the exculpatory clause, thus not sufficiently highlighting that clause, does not provide the signer adequate notification of the waiver’s nature and significance. Yauger, 206 Wis. 2d at 86-87. Third, [**14] there was little or no opportunity to bargain or negotiate in regard to the exculpatory language in question. Richards, 181 Wis. 2d at 1019. n8 Under this framework, the waiver in question is unenforceable as against public policy.

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n7 We acknowledge that Yauger v. Skiing Enters., Inc.,, 206 Wis. 2d 76, 557 N.W.2d 60 (1996) and Richards place different weight on the public policy factors used to invalidate exculpatory clauses. See Rose v. Nat’l Tractor Pullers Ass’n, Inc., 33 F. Supp. 2d 757, 765 (1998). In Yauger, for example, “the presence of a single objectionable characteristic (was) sufficient to justify invalidating an exculpatory agreement.” Id. On the other hand, in Richards, the court stated that “none of these factors alone would necessarily have warranted invalidation of the exculpatory contract.” Richards, 181 Wis. 2d at 1020; see Rose, 33 F. Supp. at 765. Because all of the factors listed in those cases are present here, we do not address whether a single objectionable factor is sufficient to invalidate an exculpatory clause. [**15]

n8 According to the court in Yauger, it did not address this factor from Richards because both of the factors it had already addressed were sufficient to void the exculpatory clause in question. Yauger, 206 Wis. 2d 76, 86 n.1.

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[*P19] In addressing the first factor, we find the waiver’s broadness raises questions about its meaning and demonstrates its one-sidedness. Id. At 1018. The language chosen by Swimwest is not clear and could potentially bar any claim arising under any scenario. The waiver begins: “I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT. . . .” This language never makes clear what type of acts the word “fault” encompasses. Although Swimwest alleges that negligence is synonymous with fault, we find that fault is susceptible to a broader interpretation. Fault is currently defined as “an error or defect of judgment or of conduct; any deviation from prudence or duty resulting from inattention, incapacity, perversity, bad faith, or mismanagement.” Black’s Law Dictionary 623 (7th ed. 1999). This definition is broad enough to cover [**16] a reckless or an intentional act. A waiver of liability for an intentional act would clearly place the exculpatory clause in violation of public policy. Merten, 108 Wis. 2d at 212; Restatement (Second) of Contracts § 195(1) (1981). We again emphasize that exculpatory language must be strictly construed against the party seeking to rely on it. Yauger, 206 Wis. 2d at 81.

[*P20] If Swimwest wanted to make clear that the signer is releasing it from negligent acts, it could have included the word “negligence” in the waiver. While this court has never specifically required exculpatory clauses to include the word “negligence,” we have stated that “we consider that it would be very helpful for such contracts to set forth in clear and express terms that the party signing it is releasing others for their negligent acts. . . .” Dobratz, 161 Wis. 2d at 525.

[*P21] Likewise, the broadness of the exculpatory language makes it difficult to ascertain exactly what was within Wilson’s or Swimwest’s contemplation. We have consistently held that “only if it is apparent that the parties, in light of all [**17] the circumstances, knowingly agreed to excuse the defendants from liability will the contract be enforceable.” Id. at 520 (citing Arnold, 111 Wis. 2d at 213). For example, in Arnold, we voided an exculpatory clause, because the accident that occurred was not within the contemplation of the parties when they signed the agreement. The case involved a waiver signed by a racecar driver, whereby he agreed not to hold liable the race promoter, the racing association, the track operator, the landowner, and any other driver in the race for injuries arising from the race. The plaintiff was severely injured after he crashed his car, and the rescue personnel sprayed chemicals into his burning car. The fumes that the spray created were toxic and caused the driver severe brain damage. In rendering the exculpatory language unenforceable, we held that “an issue of material fact exists as to whether the risk of negligent rescue operations was within the contemplation of the parties at the time the exculpatory contract was executed.” Arnold, 111 Wis. 2d at 212.

[*P22] Like the plaintiff in Arnold, Wilson likely would not have contemplated [**18] drowning in a four-foot deep pool with a lifeguard on duty, when she signed the guest registration and waiver form. The question is not whether swimming carries with it the risk of drowning, but rather whether Wilson, herself, likely contemplated that risk.

[*P23] Here, the guest registration and waiver form does not provide adequate notice of the waiver’s nature and significance. See Yauger, 206 Wis. 2d at 84. In this case, the form provided by Swimwest served two purposes. It was both a “Guest Registration” application and a “Waiver Release Statement.” Just as in Richards and Yauger, the exculpatory language appeared to be part of, or a requirement for, a larger registration form. In Yauger, for example, the plaintiff signed a one-page document that served as an application for a season ski pass and also contained a release of liability. Yauger, 206 Wis. 2d at 87. The waiver in this case could have been a separate document, providing Wilson with more adequate notice of what she was signing. Also, a separate signature line could have been provided, but was not. “Identifying and distinguishing clearly between those two contractual [**19] arrangements could have provided important protection against a signatory’s inadvertent agreement to the release. “ Richards, 181 Wis. 2d at 1017.

[*P24] Another problem with the form was that there was nothing conspicuous about the paragraph containing the “Waiver Release Statement.” See Yauger, 206 Wis. 2d at 87. “The form, looked at in its entirety, must be such that a reviewing court can say with certainty that the signer was fully aware of the nature and the significance of the document being signed.” Id. at 88. Here, the entire form was printed on one card, with the same size, font, and color. The fact that the release statement is in capital letters is irrelevant since all of the words on the guest registration were also in capital letters. Furthermore, the only place to sign the form was at the very end. This supports the conclusion that the waiver was not distinguishable enough.

[*P25] We also conclude that there was no opportunity for Wilson to bargain over the exculpatory language in the guest registration and waiver form. According to the deposition testimony of Swimwest employee Kleinert, Wilson had an opportunity [**20] to read the form and ask questions. She was told that the form included a waiver, and allegedly took her time reading the card. This information alone, however, is not sufficient to demonstrate a bargaining opportunity. The form itself must provide an opportunity to bargain. See Richards, 181 Wis. 2d at 1019.

[*P26] We were faced with an analogous situation in Richards. In that case, the plaintiff was forced to choose between signing a standardized waiver or not riding with her husband in his employer’s truck. The court invalidated the contract, in part, because she “simply had to adhere to the terms of the written form.” Id. We held that an exculpatory clause would not be enforced when it is part of a standardized agreement that offers little or no opportunity to bargain. Id. Similarly, Wilson was without an opportunity to negotiate in regard to the standard exculpatory language used in the form. She was forced to either sign the form or not swim at Swimwest. n9 We hold, therefore, that such an exculpatory clause, where there is no opportunity to bargain in regard to its terms, presents another significant factor in the analysis of public policy. [**21]

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n9 In Karen Kittelson’s deposition, she states: “You have to pay the fee and sign the waiver. You are not allowed to use the facility unless you sign the waiver.”

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[*P27] All of the factors discussed lead us to conclude that the exculpatory clause in the Swimwest form violates public policy, and, therefore, is unenforceable.

III

[*P28] The final issue we address is whether Atkins is permitted to bring a wrongful death claim against Swimwest. Under Wisconsin law, a wrongful death action may be brought under such circumstances “as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages. . . .” Wis. Stat. § 895.03. n10

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n10 Wisconsin Stat. § 895.03 states, in relevant part:

Whenever the death of a person shall be caused by a wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured; provided, that such action shall be brought for a death caused in this state.

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[*P29] As the son of Wilson, Atkins was a proper claimant for a wrongful death claim against Swimwest, pursuant to Wis. Stat. § 895.04. n11 However, because the circuit court determined that Wilson would have been barred from bringing suit, the court consequently determined that Atkins was also barred. While caselaw does establish that wrongful death claims are derivative to any claim Wilson could have maintained, see Ruppa v. Am. States Ins. Co., 91 Wis. 2d 628, 646, 284 N.W.2d 318 (1979), having found the exculpatory clause unenforceable as against public policy, Swimwest is no longer shielded from liability, since Wilson could have brought a claim against it. Accordingly, Swimwest must now face the derivative wrongful death claim filed by her son, Benjamin Atkins.

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n11 Wisconsin Stat. § 895.04(1) states, in relevant part: “An action for wrongful death may be brought by the personal representative of the deceased person or by the person to whom the amount recovered belongs.”

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IV

[*P30] In summary, we conclude that the exculpatory language in Swimwest’s form is unenforceable, since it is contrary to public policy. The waiver of liability language is, first, overly broad and all-inclusive. The use of the word “fault” on the form did not make clear to Wilson that she was releasing others from intentional, as well as negligent, acts. Second, the form served two purposes, guest registration and waiver of liability for “fault,” and thus failed to highlight the waiver, making it uncertain whether Wilson was fully notified about the nature and significance of the document she signed. Finally, Wilson did not have any opportunity to bargain. If she had decided not to sign the guest registration and waiver form, she would not have been allowed to swim. The lack of such opportunity is also contrary to public policy. Accordingly, we reverse and remand, concluding also that Atkins is entitled to pursue his wrongful death claim.

By the Court.-The decision of the circuit court is reversed and the cause is remanded for further proceedings consistent with this opinion.

Concur by: Patience Drake Roggensack

Concur:

[*P31] Patience Drake Roggensack, J. (concurring). [**24] While I agree with the mandate to reverse and remand this matter, I write separately for two reasons: (1) because the court paints with too broad a brush when it strikes down the waiver due to its conclusion that Swimwest Family Fitness Center did not give Charis Wilson the opportunity to bargain on the terms of the release, without explaining that while the opportunity to bargain is desirable, it is not a separate component that may be dispositive of a waiver’s validity, and (2) because whether Wilson contemplated the possibility of her own death when she signed the waiver of liability is a question of fact that we should not decide on appeal.

[*P32] In the absence of legislation that prohibits them, waivers of liability, also known as exculpatory contracts, generally have been upheld. Arnold v. Shawano County Agric. Soc’y, 111 Wis. 2d 203, 209, 330 N.W.2d 773 (1983). However, exculpatory contracts, such as the one Wilson signed to obtain the opportunity to swim in the Swimwest pool, are not favored in the law. Id.

[*P33] When an exculpatory contract is reviewed by a court upon a claim that the contract violates public policy, there is a tension [**25] that is always present. On one hand, the court must consider the right to contract freely in the management of one’s affairs without government interference, and on the other hand, the court must consider that the shifting of responsibility for a tortfeasor’s negligent acts may tend to permit more negligent conduct. Id. at 209, n.2. We have balanced this tension by consistently requiring that exculpatory contracts contain two components in order to survive a public policy challenge: (1) a description that “clearly, unambiguously, and unmistakably inform[s the signer] of the rights he [or she is] waiving,” Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 86, 557 N.W.2d 60 (1996), and (2) a description that “clearly and unequivocally communicates to the signer the nature and significance of the document being signed.” Id. at 86-87. In regard to these components, releases that serve two purposes and those that are not conspicuously labeled have been held to be insufficient to draw the signer’s attention to the fact that he is waiving liability for other parties’ negligence, as well as his own. Richards v. Richards, 181 Wis. 2d 1007, 1017, 513 N.W.2d 118 (1994). [**26] And a release that is so broad as to be interpreted to shift liability for a tortfeasor’s conduct under all possible circumstances, including reckless and intentional conduct, and for all possible injuries, catastrophic as well as minor, will not be upheld. Id. at 1017-18.

[*P34] In Richards, we also identified a third consideration that may be examined when exculpatory contracts are reviewed: Whether the injured party has had an opportunity to bargain in regard to the breadth of the release. Id. At 1019. However, contrary to our discussion of the two components set out above, which previous cases had evaluated, we offered no citation to precedent that would establish that the lack of an opportunity to bargain is a component necessary to a valid exculpatory contract. Instead, we linked the lack of an opportunity to bargain to the component requiring releases to clearly state the circumstances and scope of injuries contemplated in order to inform the signer of the rights that he or she is waiving. Id. at 1019-20.

[*P35] In a more recent decision where we invalidated a waiver because it “failed to clearly, unambiguously, [**27] and unmistakably inform [the signer] of the rights he was waiving,” Yauger, 206 Wis. 2d at 86, and failed to “clearly and unequivocally communicate to the signer the nature and significance of the document being signed,” id. at 86-87, we also explained:

We need not address the third ground articulated in Richards, i.e., standardized agreement which offers little or no opportunity for negotiation or free and voluntary bargaining, inasmuch as either of the above principles was sufficient to void this contract.

Id. at 87 n.1. In so explaining that a lack of either of the two necessary components set out at pages 86-87 of our decision was sufficient to set aside an exculpatory contract, we chose not to establish as a third and necessary component of a public policy analysis a requirement that there be an opportunity to bargain on the terms of the release. Rather, the lack of an opportunity to bargain was a fact that a court could consider in evaluating the totality of the circumstances surrounding the execution of a waiver.

[*P36] It is against this background that the majority opinion strikes down the contract [**28] between Wilson and Swimwest, while concluding that one of the infirmities leading to invalidation is that Wilson was not given an opportunity to bargain about the terms of the release. Majority op., P18. It also opines that, “because all of the factors listed in [earlier] cases are present here, we do not address whether a single objectionable factor is sufficient to invalidate an exculpatory clause.” Id., P18 n.7. In so doing, it adds the lack of an opportunity to bargain as a component of the public policy analysis, rather as reasoning used to determine whether the release was overly broad, as we employed it in Richards. It also implies that the lack of an opportunity to bargain could be sufficient to invalidate a release when it asserts, “The form itself must provide an opportunity to bargain.” Majority op., P25. This is an unnecessary broadening of the law that heretofore has set the framework for the analysis of an exculpatory contract on public policy grounds.

[*P37] My concern may seem like a minor matter, but it is very important in a practical sense. For example, the reception desk of a recreational facility is not always staffed by the owner of the facility, [**29] but rather, it may be staffed by an employee, as was the case here. It would be unrealistic to require that an employee be authorized to “bargain” about the terms of a release of liability, and it would be unrealistic that an owner always be present at the facility. Additionally, what give and take has to occur in order that there be an actual opportunity to bargain? What if a potential swimmer does not want to waive any potential claims for liability, but the owner is able to afford insurance only for catastrophic injuries, does the owner have the right to say that the person cannot swim in his pool? Those are only a few of the questions that could arise. Accordingly, I would not employ the opportunity to bargain in any way other than in an attempt to determine if the language in the release described the circumstances for which potential liability claims were being waived.

[*P38] Additionally, in holding that the opportunity to bargain is a component of a contractual waiver, the court has effectively removed the ability of most businesses that operate paid recreational facilities to limit any type of liability by contract. In my view, this will result in an increase in lawsuits [**30] and in fewer swimming and other paid recreational facilities for Wisconsin citizens to enjoy, a result that does not further the public good.

[*P39] Exculpatory contracts may be invalidated on a contractual basis, as well as on a public policy basis, if the injury that occurred was not within the contemplation of the parties when the agreement was signed. Arnold, 111 Wis. 2d at 211. As we have explained, “Exculpatory agreements that are broad and general in terms will bar only those claims that are within the contemplation of the parties when the contract was executed.” Id. We have also explained that the determination of what risks the parties to the contract intended to include in the release are questions of fact for the jury. Id. at 212.

[*P40] An overly broad and generally stated release that may prevent the formation of a valid contract because there was no meeting of the minds by the contracting parties presents a question similar to that presented by a failure to establish the components necessary to a public policy analysis. However, under a contract analysis, the question presents as a fact question, unless the facts are undisputed [**31] and capable of only one interpretation, see Energy Complexes, Inc. v. Eau Claire County, 152 Wis. 2d 453, 466-67, 449 N.W.2d 35 (1989), and in a public policy analysis the question presents as a question of law, Richards, 181 Wis. 2d at 1011. The foundations are so similar that we have cited to cases that were decided under a contract-type analysis as support for a decision based on public policy. See, e.g., id. at 1015-16 (a policy-based decision, citing Dobratz v. Thomson, 161 Wis. 2d 502, 520, 468 N.W.2d 654 (1991), a contract-based decision).

[*P41] Here, the contract-formation question presented is whether Wilson contemplated the possibility of her own death when she signed the release. The record provides that she was a swimmer and that the part of the pool in which she was swimming was only about four feet deep. Therefore, if she tired of swimming, all she had to do to keep from sinking below the water’s surface was to stand up. Additionally, statements in the coroner’s report included in the record, which repeated findings from the autopsy, relate that although Wilson’s cause of death is listed [**32] as “drowning,” she did not die from the aspiration of water into her lungs, as one would expect when breathing continues after a person is submerged under water. The physician who conducted the autopsy labeled this phenomenon a “dry drowning.” Although he did not assign any specific finding, such as a heart attack, as the cause of Wilson’s failing to breathe, several possibilities were mentioned. Accordingly, there may have been medical circumstances that contributed to Wilson’s death that had nothing to do with her being submerged in a swimming pool when she was found unconscious. This presents the court with material factual questions about what risks Wilson contemplated when she signed the release. In my view, there must first be a finding of what caused Wilson’s death before a court can evaluate whether she could have agreed to waive that cause. This cannot be decided on summary judgment.

[*P42] Furthermore, the majority opinion does not decide that as a matter of law Wilson could not have contemplated the possibility of her own death when she signed the release. Therefore, I would send the case back to the circuit court for determinations of what caused Wilson to stop breathing [**33] and whether Wilson and Swimwest intended the release to cover that catastrophic event. In my view, until it is known why Wilson stopped breathing, it will not be possible to determine whether she contemplated that event when she signed the waiver of liability. If the injury-causing event is found to be one that Wilson did not contemplate, the waiver she signed will have no effect on liability for her death.

[*P43] For the reasons set forth above, I respectfully concur.

DISSENTBY: JON P. WILCOX

DISSENT:

[*P44] JON P. WILCOX, J. (dissenting). I dissent. While I certainly do not believe that all exculpatory agreements should be upheld, the majority opinion will render it virtually impossible to enforce any exculpatory agreement in Wisconsin. The majority concludes that the agreement in this case is unenforceable as against public policy for three reasons: 1) the agreement is overly broad; 2) the agreement serves two purposes; and 3) there was no opportunity for the signer to bargain or negotiate over the exculpatory language. Majority op., P18. These factors originate from this court’s decision in Richards v. Richards, 181 Wis. 2d 1007, 1017-19, 513 N.W.2d 118 (1994). [**34] I disagree with the majority’s application of factors one and two and while I am bound to accept the legitimacy of the third factor, I question the manner in which the third factor is applied in this case. Further, the majority fails to articulate a clear test as to what types of exculpatory agreements are enforceable in this state. The majority applies the above three factors in such a fashion so as to leave little possibility that any exculpatory agreement could be enforceable in this state.

[*P45] The law governing the enforceability of exculpatory agreements in Wisconsin has been anything but consistent and this court has, through its various articulations of standards applicable to such agreements, failed to ever adhere to a consistent test for determining their validity. While parties wishing to execute such agreements certainly have a plethora of cases explaining when such agreements are not enforceable, our jurisprudence has not provided a beacon for litigants to successfully navigate the rocky waters of this area of the law.

[*P46] The last time this court had the opportunity to examine the validity of exculpatory agreements in Wisconsin, we noted that our previous [**35] cases had used a variety of tests to evaluate the legitimacy of such agreements. Yauger v. Skiing Enters., Inc., 206 Wis. 2d 76, 81-83, 557 N.W.2d 60 (1996). We explained that although our past cases had not adhered to a single test, they all had a single common thread tying them together: “these cases, in different ways, involved an exculpatory clause that failed to disclose to the signers exactly what rights they were waiving.” Id. at 81. After analyzing our prior jurisprudence, including Richards, this court distilled a two-part test governing the legitimacy of exculpatory agreements:

While the law grudgingly accepts the proposition that people may contract away their liability right to recovery for negligently caused injuries, the document must clearly, unambiguously, and unmistakably express this intention. Furthermore, the document when looked at in its entirety must clearly and unequivocally communicate the nature and significance of the waiver.

Id. at 88-89. The majority in this case reverts back to the test used in Richards while ignoring the lessons of Yauger.

[*P47] Before analyzing [**36] the exculpatory agreement, it is important to set forth precisely the nature and contents of the agreement and consider the form on which it appears as a whole. n12 The agreement in question is contained on an index card that is five and one-half inches by five and one-half inches.

The card reads:

GUEST REGISTRATION

NAME__________________________________________________

ADDRESS_______________________________________________

CITY____________________________STATE_________________

ZIP______________________HOME PHONE___________________

REASON FOR VISIT______________________________________

HOW DID YOU HEAR OF SWIMWEST?_________________________

I WOULD LIKE MEMBERSHIP INFORMATION?

YES NO DATE_________________________

WAIVER RELEASE STATEMENT

I AGREE TO ASSUME ALL LIABILITY FOR MYSELF WITHOUT REGARD TO FAULT, WHILE AT SWIMWEST FAMILIY FITNESS CENTER. I FURTHER AGREE TO HOLD HARMLESS SWIMWEST FITNESS CENTER, OR ANY OF ITS EMPLOYEES FOR ANY CONDITIONS OR INJURY THAT MAY RESULT TO MYSELF WHILE AT THE SWIMWEST FITNESS CENTER. I HAVE READ THE FOREGOING AND UNDERSTAND ITS CONTENTS. SIGNED DATE

That is the entirety of the agreement at question in this case.

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n12 A copy of the agreement is attached as an exhibit at the end of this dissent.

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[*P48] The first reason the majority provides for striking down the exculpatory agreement contained on this card is: “this exculpatory waiver, which uses the word ‘fault,’ is overly broad and all-inclusive.” Majority op., P18. The majority reasons that the language is ambiguous, could potentially cover a variety of claims, does not include the word “negligence,” and states that it is unclear whether the risk of drowning was within the signer’s contemplation. Majority op., PP19-22.

[*P49] “Fault,” as understood by a layperson, is defined as “[a] mistake; an error” or “responsibility for a mistake or an offense; culpability.” The American Heritage Dictionary of the English Language 665 (3d ed. 1992). Thus, the clear meaning of the first clause in the waiver is that the signer agrees to assume all liability for herself, without regard to who is responsible for any mistake leading to an injury. This language plainly covers negligent conduct. The fact that the legal definition of “fault” covers reckless and intentional acts, majority op., P19, is not dispositive. As the majority correctly indicates, waivers may not be enforced to prevent liability for reckless or intentional [**38] conduct. Id. However, neither reckless nor intentional conduct is at issue in this case. The fact that the waiver may be unenforceable as to other tortious acts is not germane; the relevant inquiry is whether “the exculpatory clause . . . fails to disclose to the signers exactly what rights they were waiving[,]” and whether the agreement unambiguously and unmistakably covers the tortious act at issue. Yauger, 206 Wis. 2d at 81, 86.

[*P50] When read in context of the remaining language of the waiver release statement, the meaning of the first sentence, containing the word “fault,” becomes even clearer. See Folkman v. Quamme, 2003 WI 116, P28 n.11, P29, 264 Wis. 2d 617, 665 N.W.2d 857 (words and phrases of a contract are to be read in context of the contract’s other language in determining ambiguity). The second sentence of the waiver provides: “I FURTHER AGREE TO HOLD HARMLESS SWIMWEST FITNESS CENTER, OR ANY OF ITS EMPLOYEES FOR ANY CONDITIONS OR INJURY THAT MAY RESULT TO MYSELF WHILE AT THE SWIMWEST FITNESS CENTER.” Thus, when the first two sentences of the waiver are read together in context, an ordinary reader would understand that she [**39] is agreeing to hold Swimwest harmless for any injuries she suffers while at Swimwest that are due to mistakes or errors for which Swimwest is responsible. In other words, a layperson would understand that the waiver applies to any negligent acts of Swimwest or its employees.

[*P51] However, the majority argues that the decedent would not have contemplated the injury that occurred, majority op., P22, and focuses on the fact that the agreement does not contain the word “negligence.” Majority op., P20. The decedent in this case went to a facility called “Swimwest” in order to swim laps as part of her physical therapy. Majority op., P3. She took her time to read the waiver and then signed it. Id., PP5, 25. Yet, the majority somehow concludes that the decedent did not contemplate the risk of drowning. Regardless of whatever other activities the waiver may or may not cover, it is almost inconceivable that a reasonable person would not understand that, at a minimum, a waiver at an aquatic facility would cover the risk of drowning. What else would such a waiver cover if not the risk of drowning?

[*P52] Must a business list in the waiver each and every conceivable form [**40] of negligence that may result in injury to a patron? The majority opinion would seem to so indicate. Majority op., P22 (“Wilson likely would not have contemplated drowning in a four-foot deep pool with a lifeguard on duty.”). Listing the myriad of ways in which the proprietor or its agents could be negligent would be unduly burdensome to a business and would necessitate a waiver that is much more than one page in length. Such a waiver, in addition to being quite lengthy, would certainly not be easy to read or understand.

[*P53] In Yauger, this court cited with approval guidelines originally developed for the Uniform Commercial Code that govern warranty disclaimers. Yauger, 206 Wis. 2d at 87 n.2. One of the guidelines is that “the language of the negligence waiver should be readable. . . . and should not be written in legal jargon.” Id. (quoting Stephanie J. Greer & Hurlie H. Collier, The Conspicuousness Requirement: Litigating and Drafting Contractual Indemnity Provisions in Texas After Dresser Industries, Inc. v. Page Petroleum, Inc., 35 S. Tex. L. Rev. 243, 265-70, Apr. 1994). By focusing on the absence of a legal term of art in the [**41] waiver—“negligence”—and the fact that the waiver did not precisely mention the exact negligent act leading to injury in this case, the majority’s rationale runs afoul of the principle that waivers should be easy to read and should not contain legal jargon.

[*P54] Next, the majority concludes that the waiver does not provide “adequate notice of the waiver’s nature and significance” because it serves two purposes. Majority op., P23. The majority states that as in Richards and Yauger, the exculpatory language here is part of a larger registration form. Majority op., P23. However, the waiver in this case is part of a simple five and one-half inch by five and one-half inch index card. The only part of the card containing contiguous complete sentences is the waiver. The remainder of the form is comprised of mere blank lines for the reader to fill in his or her contact information.

[*P55] Thus, the waiver is the only part of the form for a patron to read. The form of the waiver in this case stands in stark contrast to the waiver in Yauger, which was “one paragraph in a form containing five separate paragraphs” that did not stand out from the other language. [**42] Yauger, 206 Wis. 2d at 87. Here, the exculpatory language is the only language on the form to be read. This is not a case where the exculpatory language is located in fine print at the end of a multi-page document or even a case where the waiver is located in the midst of several paragraphs on a single page form. Aside from the blanks for contact information, the waiver is the form.

[*P56] While the top portion of the card does contain blanks for the signer to supply his or her contact information, such information would seem to be a necessary part of the waiver itself, as if injury did occur, it seems logical that the facility would be in need of the injured patron’s contact information. The fact that the top portion of the card is entitled “GUEST REGISTRATION” does not somehow alter the inherent nature of the form. Indeed, one of the guidelines cited in Yauger is that the waiver should be separately labeled to distinguish it from other parts of the agreement. Yauger, 206 Wis. 2d at 87 n.2.

[*P57] The majority also stresses that there is not a separate signature line for the waiver. Majority op., P23. However, the signature [**43] line on the form is located directly under the exculpatory language, unlike the waiver in Richards, 181 Wis. 2d at 1013. One has to wonder why there would need to be a separate signature line under the blank lines in the top portion of the form.

[*P58] The exculpatory language in this case satisfies the guidelines cited in Yauger, 206 Wis. 2d at 87 n.2. The waiver is conspicuous, as it is the only “paragraph” on the form. The waiver is set off from the remainder of the form in a separately titled section. The waiver is easy to locate. The waiver appears directly above a signature line and the waiver is the only portion of the document requiring a signature. The heading before the waiver is not misleading. The waiver itself is written in plain, easy to read language and does not contain an abundance of legal jargon. The waiver is written in large print. In other words, there is no doubt that the waiver is conspicuous and informs the signer of its nature and significance.

[*P59] Yet, the majority concludes that the waiver “was not distinguishable enough.” Majority op., P24. Apparently, the waiver would have been distinguishable if it appeared [**44] on a separate card, or if the form was multicolored and had but one more signature line, or if Swimwest had not utilized capital letters when asking for contact information. Id., PP23-24. This type of analysis elevates form over substance and fails to consider the form on which the exculpatory clause appears as whole.

[*P60] The majority states that it is clarifying the law in Wisconsin concerning exculpatory clauses. Majority op., P10. However, its application of these first two factors has done just the opposite. In Yauger we stated that a waiver appearing on a form with other language should be conspicuously labeled, set apart, and should stand out from the rest of the form. Yauger, 206 Wis. 2d at 87 & n.2. Here, this was done. Yet, the majority uses the very fact that the “Waiver Release Statement” is labeled separately from the “Guest Registration” portion to conclude that the form serves two purposes and thus does not provide adequate notice of the significance and nature of the waiver. Majority op., P23. In Yauger, we suggested that a waiver should be easy to read and should not be written in legalese. Yauger, 206 Wis. 2d at 87 & n.2. [**45] Yet, the majority faults Swimwest for not utilizing a legal term of art—“negligence”—in its waiver, and for not listing the precise act of negligence that allegedly occurred in this case. Majority op., PP20, 22.

[*P61] Further, as close reading of Yauger indicates, a document “serving two purposes” is not in and of itself questionable. Rather, the concern arises that the signer may not be aware of the nature and significance of the waiver when a document serves two purposes and the waiver is not conspicuous. Yauger, 206 Wis. 2d at 86-88. This concern is not present here because the waiver is conspicuous and, read in context, clearly indicates what is being waived. Thus, the fact that the form on which it appears arguably serves two purposes should not be dispositive.

[*P62] Finally, the majority concludes that the waiver is not valid because “there was no opportunity for Wilson to bargain over the exculpatory language[.] “ Majority op., P25. This “bargaining” requirement originated in Richards, 181 Wis. 2d at 1019-20, and was not based on any existing case law. The “bargaining” requirement was not utilized in Yauger. The dissent [**46] in Richards, which I joined, indicated that this requirement was not based on existing law and discussed the inherent problems with such a requirement. Richards, 181 Wis. 2d at 1035-43 (Day, J., dissenting). In particular, the dissent in Richards queried:

What does it mean to “negotiate” in this context, and how would [a] company ensure that the negotiations were “equal”? Are we to assess the competency of [the plaintiff] to negotiate and assume that any deficiencies must somehow be compensated for in substance by the company? . . . Or is it suggested that the company must appoint someone to help [the plaintiff] draft a counter-proposal? Must the company then negotiate—in good faith, of course—about which terms of its own release it might be willing to drop in “negotiations”? And what if, despite very skilled and fair negotiations on both sides, [the plaintiff] nevertheless agrees to accept the full release.

Richards, 181 Wis. 2d at 1041 (Day, J., dissenting).

[*P63] It is entirely impractical to require “bargaining” in this context. Almost all releases are printed on standardized forms and are a condition [**47] precedent to the use of recreational facilities. Such releases are utilized by aquatic facilities, athletic clubs, ski resorts, canoeing and rafting outfits, and other high-risk ventures such as skydiving and bungee jumping. Many of these businesses are small firms whose continued existence is based on high customer volume. Must the owner of such business, or other person with the authority to negotiate, be present at the desk of such facility during all hours of operation? Must the proprietor employ a full-time attorney whose duties include negotiating with every person in the long line of skiers waiting to brave the slopes? These businesses would grind to a halt under such practices or, at the very least, face long lines of angry customers.

[*P64] The reality is that there is almost never an opportunity to “bargain “ over exculpatory clauses, as the majority describes it. Rarely do ordinary consumers in today’s fast-paced global economy have an “opportunity” to bargain over any of the terms of a contract (other than perhaps the price), as the majority describes “bargaining.” The only meaningful “bargaining” tool that an ordinary consumer possesses is his or her choice to frequent [**48] another business.

[*P65] While Richards has not been overruled and I am bound to accept the lack of the “opportunity to bargain” as a legitimate factor in the analysis of exculpatory agreements, the use of the “bargaining” factor in this case is particularly troublesome in light of the majority’s refusal to set forth a workable standard describing what would satisfy the “opportunity to bargain” requirement and its failure to decide whether a single objectionable factor is sufficient to render an exculpatory clause invalid. Majority op., P18 n. 7. Richards, which utilized the “bargaining” test, noted that no one factor alone was sufficient to invalidate an exculpatory agreement. Richards, 181 Wis. 2d at 1011. Yauger, which did not discuss the bargaining factor, came to the opposite conclusion and held the presence of one factor was sufficient to invalidate an exculpatory clause. Yauger, 206 Wis. 2d at 87 n.1.

[*P66] The majority fails to resolve this dispute and leaves open the possibility that even an exculpatory clause that is expertly drafted, conspicuous, and appears on a separate document may be invalidated merely because [**49] the signer had no “opportunity to bargain.” As such, the majority places the legitimacy of all exculpatory agreements in doubt. If this court wishes to invalidate all exculpatory clauses, then it should so hold, rather than burdening businesses with confusing requirements that are impossible or unlikely to be met in any case.

[*P67] Individuals have a right to know what the law is so that they may conduct their affairs in an orderly fashion. The majority has failed to articulate a clear, useable test that will provide meaningful guidance to those wishing to execute exculpatory agreements. Because the majority fails to articulate such a test, fails to apply the first two factors in accordance with the guidelines set forth in Yauger, and leaves open the possibility that the lack of an “opportunity to bargain” alone is sufficient to invalidate an exculpatory agreement, I respectfully dissent.


Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384

Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384

Merav Sharon vs. City of Newton.

SJC-08671

Supreme Judicial Court of Massachusetts

437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384

April 2, 2002, Argued

June 10, 2002, Decided

Prior History: [***1] Middlesex. Civil action commenced in the Superior Court Department on November 5, 1998. A motion to amend answer was heard by Martha B.

Sosman, J., and the case was heard by Leila R. Kern, J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Disposition: Affirmed.

Headnotes: Practice, Civil, Answer, Amendment, Motion to amend. Parent and Child, Education. Release. School and School Committee, Liability for tort.

Public Policy. Contract, Minor, Release from liability, Consideration.

Negligence, Contractual limitation of liability, School. Massachusetts Tort Claims Act. Governmental Immunity.

Counsel: Jeffrey Petrucelly for the plaintiff.

Richard G. Chmielinski, Assistant City Solicitor, for the defendant.

The following submitted briefs for amici curiae: Thomas J. Urbelis for Massachusetts City Solicitors and Town Counsel Association.

Michael K. Gillis & John J. St. Andre for The Massachusetts Academy of Trial Attorneys.

Leonard H. Kesten & Patricia M. Malone for Massachusetts Municipal Association.

Judges: Present (Sitting at Barnstable): Marshall, C.J., Greaney, Ireland, Spina, & Cordy, JJ.

Opinion by: Cordy

Opinion: [**741]

[*100] CORDY, J. In this case, we consider the question of the validity of a release signed by the parent of a minor child for the purpose of permitting her to engage in public school extra-curricular sports activities. The question is one of first impression in the Commonwealth.

A. Background.

On November 8, 1995, sixteen year old Merav Sharon [***2] was injured while participating in a cheerleading practice at Newton North High School. Merav fell from a teammate’s shoulders while rehearsing a pyramid formation cheer and sustained a serious compound fracture to her left arm that required surgery. n1 At the time of her injury, Merav had had four seasons of cheerleading experience at the high school level.

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n1 Merav Sharon’s injury occurred during a cheerleading squad practice in the school’s dance studio that was equipped with one-inch thick mats on the floor.

The team used members of the squad as spotters while performing difficult stunts or cheers. While such spotters were in place at the time of Merav’s injury, her spotter was not able to catch her or break her fall from the top of the pyramid.

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On November 5, 1998, having reached the age of majority, Merav filed suit against the city of Newton, alleging negligence (Count I) and the negligent hiring and retention of the cheerleading coach (Count II). n2 The city filed its answer on December 24, 1998. In late [***3] October, 1999, during the course of discovery, the city came across a document entitled “Parental Consent, Release from Liability and Indemnity Agreement” signed by Merav and her father in August, 1995, approximately three months prior to the injury. The relevant part of the release reads as follows:

“[I] the undersigned [father] . . . of Merav Sharon, a [*101] minor, do hereby consent to [her] participation in voluntary athletic programs and do forever RELEASE, acquit, discharge, and covenant to hold harmless the City of Newton . . . from any and all actions, causes of action, [and] claims . . . on account of, or in any way growing out of, directly or indirectly, all known and unknown personal injuries or property damage which [I] may now or hereafter have as the parent . . . of said minor, and also all claims or right of action for damages which said minor has or hereafter may acquire, either before or after [she] has reached [her] majority resulting . . . from [her] participation in the Newton Public Schools Physical Education Department’s athletic programs . . . .”

The city filed a motion for summary judgment raising the signed release as a defense.

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n2 The negligence claims were brought against the city of Newton pursuant to the Massachusetts Tort Claims Act, G. L. c. 258.

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Merav filed an opposition to the city’s motion for summary judgment in which she argued that, because the release had not been raised as an affirmative defense in the city’s answer, it should be deemed waived. Shortly thereafter, the city filed a motion to amend its answer in order to add the release as an affirmative defense. One judge in the Superior Court allowed the city’s motion to amend on June 30, 2000, and a second judge subsequently allowed the city’s motion for summary judgment based on the validity of the release. n3 [**742] In her ruling, the judge concluded that “[a] contrary ruling would detrimentally chill a school’s ability to offer voluntary athletic and other extra -curricular programs.”

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n3 The city also filed a motion to implead Merav’s father as a third-party defendant based on the release. This motion was granted but the third-party complaint was subsequently dismissed as moot.

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Merav filed a timely appeal claiming that (1) the motion judge abused her discretion by allowing the city to amend its [***5] answer late; (2) the grant of summary judgment was inappropriate because genuine issues of material fact remained in dispute; and (3) the release signed by Merav and her father was invalid because (a) she disavowed it on attaining her majority n4; (b) the release violates public policy; (c) the release is contrary to the [*102] Massachusetts Tort Claims Act, G. L. c. 258, § 2; and (d) the release is invalid for lack of consideration. We transferred the case here on our own motion and now affirm the grant of summary judgment in favor of the city. n5

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n4 The city concedes that minors may ratify or disaffirm their own contracts on reaching the age of majority. It prevailed below on the theory that Merav’s father could effectively waive her claim by signing the release.

n5 We acknowledge amicus briefs of the Massachusetts City Solicitors and Town Counsel Association, the Massachusetts Municipal Association, and The Massachusetts Academy of Trial Attorneys.

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B. Discussion.

1. Amendment [***6] of the city’s answer. Merav claims that the allowance of the city’s untimely motion to amend its answer was prejudicial error and that, because the city failed to raise the release as an affirmative defense in its original answer, the defense should be deemed waived.

It is well established that the defense of a release must be raised as an affirmative defense and that the omission of an affirmative defense from an answer generally constitutes a waiver of that defense. See Mass. R. Civ. P. 8 (c), 365 Mass. 749 (1974); Leahy v. Local 1526, Am. Fed’n of State, County & Mun. Employees, 399 Mass. 341, 351, 504 N.E.2d 602-352 (1987), citing J.W. Smith & H.B. Zobel, Rules Practice § 8.6, at 797-798 (1974 & Supp. 1986); Coastal Oil New England, Inc. v. Citizens Fuels Corp., 38 Mass. App. Ct. 26, 29 n.3, 644 N.E.2d 258 (1995). It is equally well settled that a party may amend its pleading by leave of court and that such leave “shall be freely given when justice so requires.” Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974). See Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962) (interpreting identical language [***7] in Federal rule and stating mandate that leave to amend “shall be freely given when justice so requires” is to be heeded).

Merav contends that the combination of undue delay and prejudice to her case should have led the judge to deny the city’s motion to amend. While we have often upheld a judge’s discretion to deny leave to amend based in part on undue delay, such denials have generally been coupled with consideration of other factors such as imminence of trial and futility of the claim sought to be added. See, e.g., Leonard v. Brimfield, 423 Mass. 152, 157, 666 N.E.2d 1300 (1996); Mathis v. Massachusetts Elec. Co., 409 Mass. 256, 264, 565 N.E.2d 1180 (1991); Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 292, 361 N.E.2d 1264 (1977). Given that the amendment in this [*103] case did not raise a new issue on the eve of trial and could not be considered futile or irrelevant to the city’s defense, the judge did not abuse her discretion in granting the motion to amend the city’s answer.

2.

Summary Judgment.

By proffering the release signed by Merav and her father releasing the city [**743] from any claims that Merav [***8] might acquire from her participation in the city’s athletic program, the city has met its initial burden of demonstrating that Merav’s negligence claim is likely to be precluded at trial.

n6 In response, Merav contends both that there are issues of material fact in dispute regarding the validity of the release, and that it is unenforceable as a matter of law and public policy. We conclude that the facts Merav contends are in dispute are not material, enforcement of the release is consistent with our law and public policy, and Newton is entitled to judgment as a matter of law.

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n6 When a release is raised in defense of such a claim, the plaintiff bears the burden of proving that it is not a valid bar to her suit. See Gannett v. Lowell, 16 Mass. App. Ct. 325, 327, 450 N.E.2d 1121 (1983).

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a. Merav’s factual contentions. Merav first argues that there are disputed issues of material fact regarding her understanding of the release and its voluntariness. She contends that neither she nor her father [***9] realized that by signing the release they were waiving their future claims against the school, and that their understanding of what they signed is a matter of fact to be decided by a jury. As the motion judge properly noted, “it is a rule in this Commonwealth that the failure to read or to understand the contents of a release, in the absence of fraud or duress, does not avoid its effects.” Lee v. Allied Sports Assocs., Inc., 349 Mass. 544, 550, 209 N.E.2d 329-551 (1965). The undisputed evidence supports the conclusion that both Merav and her father had ample opportunity to read and understand the release before signing it, and they are therefore deemed to have understood it. Cormier v. Central Mass. Chapter of the Nat’l Safety Council, 416 Mass. 286, 289, 620 N.E.2d 784 (1993).

The release is a clearly labeled, two-sided document, which Merav brought home from school for her parents to review. Merav and her father both signed the front of the release, which they indicated was for the sport of “cheerleading.”

In addition, [*104] they filled out the back of the release that called for information regarding Merav’s address, date of birth, health insurance provider, and emergency [***10] contacts, and which provided for the purchase of optional student accident insurance through the school (an option which they explicitly declined on the form). Her father also signed the back of the release giving parental consent to a physical examination of Merav prior to her participation in the cheerleading program. In these respects, the circumstances differ substantially from the so-called “baggage check” or “ticket” cases relied on by Merav in which a customer merely purchases a ticket or receives a receipt that contains release language. See Lee v. Allied Sports Assocs., Inc., supra; O’Brien v. Freeman, 299 Mass. 20, 11 N.E.2d 582 (1937); Kushner v. McGinnis, 289 Mass. 326, 194 N.E. 106 (1935).

In these “baggage check” and “ticket” cases, we have ruled that the “type of document which the patron receives and the circumstances under which he receives it are not such that a person of ordinary intelligence would assume that the ticket limits the proprietor’s liability unless the patron becomes actually aware of that limitation.” Lee v. Allied Sports Assocs., Inc., supra at 549-550.

Therefore, we have [***11] held in those cases that actual notice of the limitation of liability may be a question of fact properly submitted to the jury. This is not such a case. The release at issue here was clearly labeled as such and was filled out and signed by Merav and her father for the purpose of ensuring that she would be permitted to [**744] participate in an ongoing extracurricular activity. These are not circumstances likely to mislead a person of ordinary intelligence as to whether a limitation of liability might be included in the type of document being executed. There is no dispute that Merav and her father had ample opportunity to review and understand the release. Their failure to do so does not avoid its effects as a matter of law. Id. Cormier v. Central Mass. Chapter of the Nat’l Safety Council, supra. Merav further argues that a jury should consider whether the release was signed under duress because, had she refused to sign it, she would not have been allowed to participate in cheerleading. This argument was not made to the motion judge, and is waived. But see Minassian v. Ogden Suffolk Downs, Inc., [*105] 400 Mass. 490, 492, 509 N.E.2d 1190 (1987) (“take it [***12] or leave it” release as condition of voluntary participation enforceable).

b. Public policy. Merav next contends that enforcement of the release against her claims would constitute a gross violation of public policy. This argument encompasses at least three separate public policy contentions: first, that it is contrary to public policy to permit schools to require students to sign exculpatory agreements as a prerequisite to participation in extracurricular school sports; second, that public policy prohibits a parent from contracting away a minor child’s right to sue for a future harm; and third, that the enforcement of this release would undermine the duty of care that public schools owe their students.

In weighing and analyzing Merav’s public policy arguments, we must also consider other important public policies of the Commonwealth implicated in the resolution of this issue, including policies favoring the enforcement of releases, and the encouragement of extracurricular athletic programs for school-aged children.

(1) Releases. Massachusetts law favors the enforcement of releases. Lee v. Allied Sports Assocs., Inc., 349 Mass. 544, 550 (1965), citing MacFarlane’s Case, 330 Mass. 573, 576, 115 N.E.2d 925 (1953); [***13] Clarke v. Ames, 267 Mass. 44, 47, 165 N.E. 696 (1929). A party may, by agreement, allocate risk and exempt itself from liability that it might subsequently incur as a result of its own negligence. See, e.g., Lee v. Allied Sports Assocs., Inc., supra at 550; Barrett v. Conragan, 302 Mass. 33, 18 N.E.2d 369 (1938); Ortolano v. U-Dryvit Auto Rental Co., 296 Mass. 439, 6 N.E.2d 346 (1937). See also J.W. Smith & H.B. Zobel, Rules Practice § 8.18 (1974). “There can be no doubt . . . that under the law of Massachusetts . . . in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf.” Schell v. Ford, 270 F.2d 384, 386 (1st Cir. 1959).

Whether such contracts be called releases, covenants not to sue, or indemnification agreements, they represent “a practice our courts have long found acceptable.” Minassian v. Ogden Suffolk Downs, Inc., supra at 493. See Shea v. Bay State Gas Co., 383 Mass. 218, 223-224, 418 N.E.2d 597 (1981); [***14] Clarke v. Ames, supra at 47.

[*106] The context in which such agreements have been upheld range beyond the purely commercial. In Lee v. Allied Sports Assocs., Inc., supra, we upheld a release signed as a prerequisite to a spectator entering the pit area of an automobile race, and in Cormier v. Central Mass. Chapter of the Nat’l Safety Council, 416 Mass. 286, 620 N.E.2d 784 (1993), we similarly [**745] upheld a release signed by a beginner rider as a condition of her enrollment in a motorcycle safety class. In both cases, the plaintiffs were subsequently injured by the allegedly negligent acts of the other party to the release. In the Lee case, supra, we concluded that the denial of the defendant’s motion for a directed verdict was error on the basis of the validity of the release. In the Cormier case, supra, we upheld the granting of summary judgment on the same basis, holding that “placing the risk of negligently caused injury on a person as a condition of that person’s voluntary choice to engage in a potentially dangerous activity ordinarily contravenes no public policy of the Commonwealth.” Id. at 289. [***15] There is little that distinguishes the activity in the present case from those in the Lee and the Cormier cases.

Although Merav has suggested that, if the release at issue here is valid, there is nothing to prevent cities or towns from requiring releases for “simply allowing a child to attend school,” such a conclusion does not necessarily follow. We have not had occasion to rule on the validity of releases required in the context of a compelled activity or as a condition for the receipt of essential services (e.g., public education, medical attention, housing, public utilities), and the enforceability of mandatory releases in such circumstances might well offend public policy. See Cormier v. Central Mass. Chapter of the Nat’l Safety Council, supra at 289 n.1, citing Gonsalves v. Commonwealth, 27 Mass. App. Ct. 606, 608, 541 N.E.2d 366 (1989) (exacting release of liability for negligence from public employee who was under compulsion to enroll in training course might offend public policy). See also Recent Case, 102 Harv. L. Rev. 729, 734 (1989) (importance of service to public should be paramount factor in deciding whether [***16] to invalidate exculpatory release on public policy grounds). In this case, Merav’s participation in the city’s extracurricular activity of cheerleading was neither compelled nor essential, and we conclude that [*107] the public policy of the Commonwealth is not offended by requiring a release as a prerequisite to that participation.

(2) Parent’s waiver of a minor’s claim. Merav contends that a parent cannot waive, compromise, or release a minor child’s cause of action, and that enforcement of such a release against the child would violate public policy. She relies on a series of decisions from other jurisdictions. n7 The city on the other hand relies on a series of cases holding to the contrary. n8 While these cases are instructive and emblematic of the difficulty in balancing [**746] the important interests and policies at stake, we first look to our own law.

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n7 See Fedor v. Mauwehu Council, Boy Scouts of Am., Inc., 21 Conn. Supp. 38, 143 A.2d 466 (1958) (release signed by parent waiving child’s future claims violates public policy); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 146, 199 Ill. Dec. 572, 634 N.E.2d 411 (1994) (parent cannot waive, compromise, or release minor child’s cause of action); Doyle v. Bowdoin College, 403 A.2d 1206, 1208 n.3 (Me. 1979) (release signed by parent before son’s hockey injury void as to child’s cause of action); Childress v. Madison County, 777 S.W.2d 1, 7 (Tenn. Ct. App. 1989) (release signed by mother void as to son’s rights but valid as to mother’s); Scott v. Pacific W. Mountain Resort, 119 Wn. 2d 484, 494, 834 P.2d 6 (1992) (en banc) (preinjury release signed by parent does not bar child’s cause of action). [***17] n8 See Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 274 Cal. Rptr. 647 (1990) (parent may execute release on behalf of minor child); Cooper v. United States Ski Ass’n, 32 P.3d 502, 29 Colo. Law. No. 10 166 (Colo. Ct. App. 2000) (mother’s release of minor child’s claims for negligence valid and enforceable); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 696 N.E.2d 201 (1998) (mother had authority to bind minor child to exculpatory agreement).

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Under our common law, “any contract, except one for necessaries, entered into by an unemancipated minor could be disaffirmed by him before he reached the age of [eighteen] or within a reasonable time thereafter.” Slaney v. Westwood Auto, Inc., 366 Mass. 688, 692, 322 N.E.2d 768 (1975). This long-standing principle has been applied to releases executed by a minor as far back as 1292. See 5 S. Williston, Contracts § 9.2, at 5 (4th ed. 1993), citing Y.B. 20 and 21 Edw. At 318 (1292) (release by minor “would not bar him from suing when he came of age”). While the common-law rule [***18] has been narrowed somewhat by statute, n9 it remains our law that the contract of a minor is generally [*108] voidable when she reaches the age of majority. Merav unequivocally repudiated the release (to the extent it might be deemed a contract executed by her) by filing suit against the city. See G.E.B. v. S.R.W., 422 Mass. 158, 164, 661 N.E.2d 646 (1996) (minor’s filing of suit is direct repudiation of contract not to sue signed by minor). The city concedes that Merav effectively disaffirmed the release, but contends that insofar as the release is signed by the parent and purports to release the school from any claim that might accrue to the minor, it remains valid because the parent can do what the minor cannot.

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n9 See, e.g., G. L. c. 167E, § 10 (student under eighteen years of age admitted to institution of higher learning has full legal capacity to act on her own behalf in contracts and other transactions regarding financing of education); G. L. c. 175, § 128 (certain contracts for life or endowment insurance may not be voided by minor over fifteen years of age); G. L. c. 175, § 113K (minor over sixteen years of age permitted to contract for motor vehicle liability insurance); G. L. c. 112, § 12E (minor over twelve years of age found to be drug dependent may consent to treatment for dependency); G. L. c. 112, § 12F (minor may consent to medical or dental treatment if she meets criteria outlined in statute).

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The purpose of the policy permitting minors to void their contracts is “to afford protection to minors from their own improvidence and want of sound judgment.” Frye v. Yasi, 327 Mass. 724, 728, 101 N.E.2d 128 (1951). This purpose comports with common sense and experience and is not defeated by permitting parents to exercise their own providence and sound judgment on behalf of their minor children. Parham v. J.R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979) (“The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions”). See 1 W. Blackstone Commentaries 452 (9th ed. 1783) (minor’s consent to marriage void unless accompanied by parental consent; one of many means by which parents can protect children “from the snares of artful and designing persons”). Moreover, our law presumes that fit parents act in furtherance of the welfare and best interests of their children, Petition of the Dep’t of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587-589, 421 N.E.2d 28 (1981); Sayre v. Aisner, 51 Mass. App. Ct. 794, 799 n.8, 748 N.E.2d 1013 (2001), [***20] and with respect to matters relating to their care, custody, and upbringing have a fundamental right to make those decisions for them. See Parham v. J.R., supra at 603 (parents can and must make judgments and decisions regarding risks to their children).

In the instant case, Merav’s father signed the release in his [*109] capacity as parent because he wanted his child to benefit from participating in cheerleading, as she had done for four previous seasons. He made an important family decision cognizant of the risk of physical injury to his [**747] child and the financial risk to the family as a whole. In the circumstance of a voluntary, nonessential activity, we will not disturb this parental judgment.

This comports with the fundamental liberty interest of parents in the rearing of their children, and is not inconsistent with the purpose behind our public policy permitting minors to void their contracts. n10

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n10 Our conclusion that parents may execute an enforceable preinjury release on behalf of their minor children is not inconsistent with our policy regarding discretionary court approval of settlement releases signed by minors. See ½ G. L. c. 231, § 140C ½ (allowing judge to approve settlement for damages stemming from personal injury to minor where parties have petitioned for such approval).

This statute applies only to postinjury releases, and the policy considerations underlying it are distinct from those at issue in the preinjury context. A parent asked to sign a preinjury release has no financial motivation to comply and is not subject to the types of conflicts and financial pressures that may arise in the postinjury settlement context, when simultaneously coping with an injured child. Such pressure can create the potential for parental action contrary to the child’s ultimate best interests. In short, in the preinjury context, there is little risk that a parent will mismanage or misappropriate his child’s property. See Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 373, 696 N.E.2d 201 (1998).

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c. The encouragement of athletic activities for minors. Our views with respect to the permissibility of requiring releases as a condition of voluntary participation in extracurricular sports activities, and the enforceability of releases signed by parents on behalf of their children for those purposes, are also consistent with and further the public policy of encouraging athletic programs for the Commonwealth’s youth. This policy is most clearly embodied in statutes that exempt from liability for negligence: nonprofit organizations and volunteer managers and coaches who offer and run sports programs for children under eighteen years of age ( G. L. c. 231, § 85V), and owners of land (including municipalities) who permit the public to use their land for recreational purposes without imposing a fee ( G. L. c. 21, § 17C). See Anderson v. Springfield, 406 Mass. 632, 549 N.E.2d 1127 (1990) (city not liable for injuries to softball player resulting from negligently caused defect in city-owned baseball field).

To hold that releases of the type in question here are [*110] unenforceable would expose public schools, who offer [***22] many of the extracurricular sports opportunities available to children, to financial costs and risks that will inevitably lead to the reduction of those programs. n11 It would also create the anomaly of a minor who participates in a program sponsored and managed by a nonprofit organization not having a cause of action for negligence that she would have had had she participated in the same program sponsored as an extracurricular activity by the local public school. This distinction seems unwarranted, inevitably destructive to school-sponsored programs, and contrary to public interest.

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n11 The fact that G. L. c. 258, § 2, limits the financial exposure of municipalities to $ 100,000 an occurrence (plus defense costs) does not insulate them from the deleterious impact of inherently unquantifiable financial risk.

Public schools are not required by State law to offer voluntary extracurricular sports programs. Compare G. L. c. 71, § 3 (“physical education shall be taught as a required subject in all grades for all students in the public schools . ..” [emphasis added]) with G. L. c. 71, § 47 (cities and towns “may appropriate” money for employment of coaches and for support of extracurricular activities).

Consequently, in times of fiscal constraint, those programs are often the targets of budget reductions. A decision exposing school systems to further financial costs and risk for undertaking such programs cannot help but accelerate their curtailment.

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Merav contends that to enforce the release would convey the message that public school programs can be run negligently, in contravention of the well-established responsibility of schools to protect their students. We disagree. There are many reasons aside from potential tort liability why public schools will continue to take steps to ensure well-run and safe extracurricular programs—not the least of which is their ownership by, and accountability to, the citizens of the cities and towns they serve. Moreover, the Legislature has already made the judgment that the elimination of liability for negligence in nonprofit sports programs is necessary to the encouragement and survival of such programs. It can hardly be contended that the enactment of G. L. c. 231, § 85V, was an endorsement by the Legislature of the negligent operation of nonprofit programs or an act likely to encourage the proliferation of negligence. School extracurricular programs are similarly situated. n12 The enforcement of the release is consistent with the Commonwealth’s policy of [*111] encouraging athletic programs for youth and does not contravene the responsibility that schools have to protect [***24] their students.

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n12 Our holding is not intended to abrogate or qualify the special relationship that exists between a school and its students recognized in prior decisions, but not involving the validity of an exculpatory release required for participation in an extracurricular activity. See, e.g., Whitney v. Worcester, 373 Mass. 208, 366 N.E.2d 1210 (1977) (sight-impaired student injured by defective door during school hours); Alter v. Newton, 35 Mass. App. Ct. 142, 617 N.E.2d 656 (1993) (student hit in eye by lacrosse ball while waiting in school yard for parent).

It is also limited to the claims before us—and those claims concern ordinary negligence. The city specifically disavows any contention that the release here would relieve it from liability for gross negligence or reckless or intentional conduct. See Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 18-19, 687 N.E.2d 1263 (1997), citing Gillespie v. Papale, 541 F. Supp. 1042, 1046 (D. Mass. 1982) (releases effective against liability for ordinary negligence but substantial outside authority holds same not true for gross negligence). Commentators have readily distinguished the public policy implications of exculpatory releases whose only effect is relief from ordinary negligence from those intended to relieve a party from gross negligence, or reckless or intentional conduct. See Restatement (Second) of Contracts § 195(1) (1981) (“A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy”); 6A A. Corbin, Contracts § 1472, at 596-597 (1962) (“such an exemption [from liability] is always invalid if it applies to harm wilfully inflicted or caused by gross or wanton negligence”); W.L. Prosser & W.P. Keeton, Torts § 68, at 484 (5th ed. 1984) (“such agreements generally are not construed to cover the more extreme forms of negligence, described as willful, wanton, reckless or gross”).

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d. Massachusetts Tort Claims Act. Merav’s reliance on G. L. c. 258, § 2, to support her claim that cities and towns should not be permitted to require or enforce releases regarding their negligent conduct, is misplaced. While the purpose of the Act may be to provide a remedy for persons injured as a result of the negligence of government entities, see Vasys v. Metropolitan Dist. Comm’n, 387 Mass. 51, 55, 438 N.E.2d 836 (1982), it does so by abrogating sovereign immunity only within a narrow statutory framework. The Act does “not create any new theory of liability for a municipality,” Dinsky v. Framingham, 386 Mass. 801, 804, 438 N.E.2d 51 (1982), but rather, specifically provides that they are liable “in the same manner and to the same extent as a private individual under like circumstances.” G. L. c. 258, § 2. Outside of the procedural limitations and exceptions contained within the Act, cities and towns are afforded the same defenses as private parties in tort claims. See Dinsky v. Framingham, supra.

[**749] Because releases of liability for ordinary negligence involving private [***26] parties are valid as a general proposition in the Commonwealth, [*112] it is not contrary to the purposes of the Act to allow municipalities to use releases as a precondition for the participation in voluntary, nonessential activities they may sponsor.

e. Consideration. Merav last argues that the release she signed is void because it was not supported by proper consideration. The motion judge properly concluded that the benefit bargained for, in this case Merav’s participation in the cheerleading program, was adequate consideration for the release. See Restatement (Second) of Torts § 496B (1965) (not essential that agreements to assume risk of negligence be for consideration. Consent by participation in activity may be sufficient).

C. Conclusion.

For the reasons set forth above, we conclude that Merav’s father had the authority to bind his minor child to an exculpatory release that was a proper condition of her voluntary participation in extracurricular sports activities offered by the city. Summary judgment for the city that was entered on the basis of the validity of that release is therefore affirmed.

So ordered.

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