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.
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.
OVERVIEW: The camp directors’ summary judgment motion was denied in a wrongful death action arising out of the death of a camper. The camp directors claimed that they were not liable in their official capacities of the corporate owner of the camp. However, the real ground of liability alleged by the camper’s administrator was that as camp directors they breached their duties under Conn. Gen. Stat. §§ 19a-422(3) and 19a-428(a) and Conn. Agencies Regs. § 19-13-B27a to be responsible for the health, comfort and safety of the camper. Fact issues remained as to whether the camp directors breached that duty.
OUTCOME: Summary judgment motion denied.
CORE TERMS: summary judgment, youth, camper, counselors, mountain, bicycle, duty of care, breached, comfort, staff, personal liability, matter of law, genuine issue of material fact, times, owed, alter ego, incur, top, genuine issue, documentary, personnel, appliances, camping, safe, official position, tortious conduct, duty to warn, corporate veil, question of fact, independently
Torts > Negligence > Duty > Affirmative Duty to Act > Special Relationships > General Overview
Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Campgrounds & Parks
[HN1] The position of director of a youth camp is one which is provided for in the statutes which regulate youth camps. Conn. Gen. Stat. § 19a-422(3) provides that there 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. Conn. Gen. Stat. § 19a-428(a) provides that the Connecticut 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.
Torts > Negligence > Duty > Affirmative Duty to Act > Special Relationships > General Overview
Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Campgrounds & Parks
[HN2] See Conn. Agencies Regs. § 19-13-B27a(n).
Torts > Negligence > Duty > Affirmative Duty to Act > Special Relationships > General Overview
Torts > Premises Liability & Property > General Premises Liability > Premises > Recreational Facilities > Campgrounds & Parks
[HN3] See Conn. Agencies Regs. § 19-13-B27a(s).
Torts > Negligence > Duty > Affirmative Duty to Act > Special Relationships > General Overview
[HN4] The statutory and regulatory scheme with 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.
Torts > Negligence > Duty > Affirmative Duty to Act > Special Relationships > General Overview
[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.
Civil Procedure > Summary Judgment > Standards > General Overview
Civil Procedure > Summary Judgment > Standards > Appropriateness
[HN6] Conn. Gen. Prac. Book, R. Super. Ct. § 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.
JUDGES: [*1] John W. Pickard, J.
OPINION BY: John W. Pickard
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.
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
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.
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
[*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.
[*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.
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n4 It was established in Atkins’ affidavit that Wilson knew how to swim prior to May 3, 2001.
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[*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.
[*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.
[*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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[*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
[*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
[*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:
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
Merav Sharon vs. City of Newton.
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.
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
[*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.
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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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.
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.
- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -
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.
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - – [***23] [**748]
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.
- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -
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”).
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - – [***25]
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).
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.
Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Sara Hohe, a Minor, etc., Plaintiff and Appellant, v. San Diego Unified School District, Defendant and Respondent; Mission Bay High School Parent, Teacher and Student Association, Defendant and Appellant.
Docket No. D010796.
Court of Appeal of California, Fourth District, Division One.
November 8, 1990.
Appeal from Superior Court of San Diego County, No. 598500,
Kevin W. Midlam, Judge.
[Editors’ Note: This Page Contained Headnotes And Headnotes Are Not An Official Product Of The Court, Therefore They Are Not Displayed.]
[Editors’ Note: This Page Contained Headnotes And Headnotes Are Not An Official Product Of The Court, Therefore They Are Not Displayed.]
Robert P. Irwin for Plaintiff and Appellant.
Lewis, D’Amato, Brisbois & Bisgaard, Peter L. Garchie and Philip
A. Book for Defendant and Appellant.
McInnis, Fitzgerald, Rees, Sharkey & McIntyre and Steven J.
Cologne for Defendant and Respondent.
[fn*] Assigned by the Chairperson of the Judicial Council.
Plaintiff Sara Hohe (Hohe), a minor, by her guardian ad litem, Steven Hohe, appeals after the court granted summary judgment in favor of defendants San Diego Unified School District (School District) and Mission Bay High School Parent, Teacher and Student Association (PTSA). The court found the releases signed by Hohe and Steven Hohe on his daughter’s behalf barred her personal injury lawsuit. Hohe contends the court erred because the releases are contrary to public policy, unenforceable because of her minority and unenforceable because of fraud in the inducement. She also argues the written release did not clearly notify her or her parent of its effect. We conclude a triable issue of fact exists regarding the releases’ scope and effect. We therefore reverse the judgment. Accordingly, PTSA is not entitled to attorney fees or costs.
Hohe, a 15-year-old junior at Mission Bay High School in San Diego, was injured during a campus hypnotism show sponsored by the PTSA as a fund-raiser
for the senior class. Hypnotism shows had been held annually since 1980.
Hohe was one of 18 or 20 subjects selected at random from a group of many volunteers. Her participation in the “Magic of the Mind Show” was conditioned on signing two release forms. Hohe’s father signed a form entitled “Mission Bay High School PTSA Presents Dr. Karl Santo.”[fn1] Hohe and her father both signed a form entitled “KARL SANTO HYPNOTIST.”[fn2]
Hohe saw the prior year’s hypnotism show. She explained to her father that it would be fun, the show was popular and discussed at least one previous stunt where a subject was suspended between two objects while another person stood on the subject’s stomach.
She also said people sang.
During the course of the show, Hohe slid from her chair and also fell to the floor about six times.
(1) Hohe argues the releases she and her father signed are contrary to public policy. We disagree. “[N]o public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party. . . .” (Tunkl v.
Regents of University of California (1963) 60 Cal.2d 92, 101 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693]; Madison v.
Superior Court (1988) 203 Cal.App.3d 589, 598 [250 Cal.Rptr. 299] ; see Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333,
343 [214 Cal.Rptr. 194] [parachuting]; Kurashige v. Indian Dunes, Inc. (1988) 200 Cal.App.3d 606, 612 [246 Cal.Rptr. 310] [dirt biking].)
An attempted but invalid exemption from liability “involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.” (Tunkl v. Regents of University of California, supra, 60 Cal.2d at pp. 98-100, fns. omitted.)
The circumstances here present an entirely different situation.
Hohe volunteered to be part of a PTSA activity because it would be “fun.” There was no essential service or good being withheld by PTSA. Hohe, like thousands of children participating in recreational activities sponsored by groups of volunteers and parents, was asked to give up her right to sue. The public as a whole receives the benefit of such waivers so that groups such as Boy and Girl Scouts, Little League, and parent-teacher associations are able to continue without the risks and sometimes overwhelming costs of litigation. Thousands of children benefit from the availability of recreational and sports activities.
Those options are steadily decreasing — victims of decreasing financial and tax support for other than the bare essentials of an education. Every learning experience involves risk. In this instance Hohe agreed to shoulder the risk. No public policy forbids the shifting of that burden.
(2) Hohe also argues the release from liability cannot be enforced against her because she is a minor. The permission and waiver forms were signed on her behalf by her parent. Hohe also signed one of the release documents.
It is true, with certain limited exceptions, a minor can disaffirm his or her contract. Civil Code section 35 Civ. provides, in relevant part, “the contract of a minor may be disaffirmed by the minor himself, either before his majority or within a reasonable time afterwards. . . .” (Doyle v. Giuliucci (1965) 62 Cal.2d 606,
609 [43 Cal.Rptr. 697, 401 P.2d 1].) The purpose of Civil Code section 35 Civ. is to protect the minor from his own improvidence. It is often said, “he who affirmatively deals with a minor, does so at his peril.” (Holland v. Universal Underwriters Ins. Co. (1969) 270 Cal.App.2d 417, 422 [75 Cal.Rptr. 669].) However, the releases signed here were signed on
Hohe’s behalf by her parent. A parent may contract on behalf of his or her children. Civil Code section 35 Civ. was not intended to affect contracts entered into by adults on behalf of their children. (Doyle v. Giuliucci, supra, 62 Cal.2d at p. 609.)
The court in Celli v. Sports Car Club of America, Inc. (1972)
29 Cal.App.3d 511, 517 [105 Cal.Rptr. 904], found a release signed by a nine-year-old invalid because, among other reasons, the minor’s signature was the only signature on the release. We therefore hold Hohe cannot disaffirm the release based on her minority.
(3a) Hohe also attacks the release based on fraud because the permission form bore the heading “Mission Bay High School PTSA Presents Dr. Karl Santo.” It was undisputed the hypnotist was not a medical doctor. Hohe and her father signed a second release form which was simply captioned “KARL SANTO HYPNOTIST.” The question facing the court was whether a material and triable factual issue existed based on the alleged fraudulent content of the release. We think not.
A motion for summary judgment shall be granted if all the papers submitted show there is no triable issue as to any material fact. (Code Civ. Proc., § 437c Civ. Proc., subd. ©; Slivinsky v. Watkins-Johnson Co. (1990) 221 Cal.App.3d 799, 804 [270 Cal.Rptr. 585].) (4) The necessary elements of fraud are (1)
misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., induce reliance; (4) justifiable reliance; and (5)
resulting damage. (Seeger v. Odell (1941) 18 Cal.2d 409, 414 [115 P.2d 977, 136 A.L.R. 1291]; Molko v. Holy Spirit Assn.
(1988) 46 Cal.3d 1092, 1108 [252 Cal.Rptr. 122, 762 P.2d 46].)
(3b) The record before us does not disclose evidence which creates a triable and material issue of fact. Use of the title “Dr.” did not falsely represent the hypnotist as a medical doctor or show PTSA intended such a representation. There is also no evidence PTSA intended to induce reliance or Hohe justifiably relied in any way. Hohe has not presented a triable issue of fact on the question of fraud to defeat the summary judgment.
(5a) The more troublesome issue before us is the scope and effect of the release forms. (6a) Hohe contends the executed forms do not clearly and unequivocally release School District and PTSA from liability for negligence.
“[T]o be effective, an agreement which purports to release, indemnify or exculpate the party who prepared it from liability for that party’s own
negligence or tortious conduct must be clear, explicit and comprehensible in each of its essential details. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.”
(Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983)
147 Cal.App.3d 309, 318 [195 Cal.Rptr. 90]; Madison v.
Superior Court, supra, 203 Cal.App.3d at p. 598; Celli v.
Sports Car Club of America, Inc., supra, 29 Cal.App.3d at pp.
(5b) The permission form signed by Steven Hohe “waive[d] all liability against PTSA, its members, Mission Bay High School, and the San Diego Unified School District.” The form began with precautionary language stating children with mental disorders or of a nervous disposition were not allowed to participate. The parent was advised to exercise parental discretion because the anticipated program might contain an adult theme. The additional form signed by both Hohe and her father stated “I agree to indemnify and hold you and any third parties harmless from any and all liability, loss or damage (including reasonable attorney fees) caused by or arising in any manner from my participation in the Magic of the Mind Show. . . .” This second document signed at the same time as the permission form granted Karl Santo the authority to broadcast and record Hohe’s performance and to use her name and likeness for promotional purposes. It also specifically indemnified Santo from any liability due to Hohe’s utterances while participating in the show.
(6b) A valid release must be simple enough for a layperson to understand and additionally give notice of its import. A drafter of such a release faces two difficult choices. His Scylla is the sin of oversimplification and his Charybdis a whirlpool of convoluted language which purports to give notice of everything but as a practical matter buries its message in minutiae.
In Celli v. Sports Car Club of America, Inc., supra,
29 Cal.App.3d at page 525, appendix, a release printed on the back of a race car pit pass in six point type attempted to “[release, remise and forever discharge] from any and every claim, demand, action or right of action whatsoever kind or nature, in law or in equity, arising from or by reason of any injury to or death of any person, . . . resulting or alleged to result from or arise out of any accident or other occurrence during or in connection with the foregoing event and/or any practice session in connection therewith, and/or any use of the course and/or facilities provided for such event.” The Celli court found the release invalid.
In Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd., supra, 147 Cal.App.3d at page 319, a release consisting of a convoluted 147-word
sentence contained no releasing words such as “‘release,’ ‘remise,’ ‘discharge,’ ‘waive’ or the like.” The Ferrell court found the release invalid.
(5c) The question here is whether the release and waiver language in the documents signed by Hohe and her father exculpates PTSA and School District from the consequences of its own breach of duty.
A line of cases exists suggesting a release to be effective against “active” negligence must specifically refer to “negligence” in the language of the contract. In other words, a general release will not protect a party from liability unless the negligent acts are ones of nonfeasance or “passive”
negligence. (Vinnell Co. v. Pacific Elec. Ry. Co. (1959)
52 Cal.2d 411, 415 [340 P.2d 604]; Markley v. Beagle (1967)
66 Cal.2d 951, 962 [59 Cal.Rptr. 809, 429 P.2d 129]; MacDonald & Kruse, Inc. v. San Jose Steel Co. (1972) 29 Cal.App.3d 413,
422 [105 Cal.Rptr. 725].)
However, an analysis based on the “active-passive dichotomy” or on the absence or presence of a specific reference to “negligence” is not dispositive. (See Rossmoor Sanitation, Inc.
v. Pylon, Inc. (1975) 13 Cal.3d 622, 632 [119 Cal.Rptr. 449,
532 P.2d 97].) (7) “[I]t is manifest that it is the intent of the parties which the court seeks to ascertain and make effective. Where . . . the circumstances of the claimed wrongful conduct dictate that damages resulting therefrom were intended to be dealt with in the agreement, there is no room for construction of the agreement. It speaks for itself.” (Harvey Mach. Co. v.
Hatzel & Buehler, Inc. (1960) 54 Cal.2d 445, 449 [6 Cal.Rptr. 284,
353 P.2d 924] distinguishing Vinnell Co. v. Pacific Elec.
Ry. Co., supra, at p. 415.) Whether a release bars recovery against a negligent party “turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control.” (Rossmoor Sanitation, Inc. v. Pylon, Inc., supra, 13 Cal.3d at p. 633.)
(5d) The permission form signed by Hohe’s father and the additional indemnification and “hold harmless” form signed by both Hohe and her father are general releases. There is no language which specifically speaks to a release from liability for negligence. Nor is there any language which specifically alerts the parent his child is barred from a recovery based on her bodily injury. It is true, “[t]o require that an express indemnity clause be cast in (a) rote form . . . is to compel contracting parties to lie upon a [P]rocrustean bed of linguistic formalism that inhibits the clear meaning of plain English.”
(C.I. Engineers & Constructors, Inc. v. Johnson & Turner Painting Co. (1983) 140 Cal.App.3d 1011, 1018 [189 Cal.Rptr. 824] .) Our analysis is not based on the mechanical application of some formula. The presence or absence of the words “negligence”
or “bodily injury” is not dispositive. We look instead to the intention of the parties as it appears in
the release forms before the court. In this instance, the intention as expressed in the releases signed by the parent for his child is not clear. Although the parent waived all liability it was in the context of two documents which focused on mental and nervous disorders, defamation and broadcast rights. The scope of the waiver is ambiguous. Where the intention of the parties on the face of the releases is ambiguous, a triable factual issue is presented. (8) Any doubts as to the propriety of granting the motion for summary judgment should be resolved in favor of the party opposing the motion. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 [42 Cal.Rptr. 449,
398 P.2d 785]; Slivinsky v. Watkins-Johnson Co., supra,
221 Cal.App.3d at p. 804.) We are mindful of the salutary purposes sometimes served by releases in diminishing the risk of litigation to groups and entities sponsoring student and recreational activities. However we cannot say the release documents signed by Hohe and her parent bar recovery for her personal injuries as a matter of law. Accordingly, we must reverse the summary judgment.
Finally, Hohe contends hypnotism is an ultrahazardous activity.
It is unnecessary to reach this issue in deciding whether or not the court properly granted summary judgment. We decline Hohe’s invitation to direct the court on how it should receive evidence on that issue.
We similarly need not decide whether or not the attorney fees provision found in the release forms would entitle PTSA to attorney fees. The court denied PTSA its attorney fees and costs on its motion for summary judgment. Since we have decided the court erred in granting judgment to PTSA, it follows PTSA is not entitled to attorney fees or costs.
The judgment is reversed. The order denying attorney fees and costs is affirmed. All parties to bear their own costs on appeal.
Huffman, Acting P.J., concurred.
[fn1] The release form read as follows: “CAUTION [¶] Children with any mental disorder or of a nervous disposition are not allowed to participate. A portion of the program occasionally contains adult theme; parental discretion is advised.
“SUBJECTS ARE REQUIRED TO ARRIVE AT 6:30 p.m.
“My son/daughter Sarah Hohe, grade 11 has my permission to be hypnotized by Dr. Karl Santo during his program at Mission Bay High School. I waive all liability against the PTSA, its members, Mission Bay High School, and the San Diego Unified School District.”
[fn2] The form read in part: “I agree to indemnify and hold you and any third parties harmless from any and all liability, loss or damage (including reasonable attorney fees) caused by or arising in any manner from my participation in the Magic of the Mind Show including any utterances made by me during the above named show or material furnished by me in connection with my participation in the show. I am solely responsible for my appearance in the show and for any loss to any party arising therefrom. [¶] I acknowledge that I am not receiving any compensation from my participation or the above authorization; and that you are relying on the above understandings in your use and broadcasting of my participation and in the production and promotion of the Magic of the Mind Show.”
NARES, J., Dissenting.
Although I agree completely with sections I through III of the majority opinion, I dissent from the conclusion[fn1] reached Page 1569 in section IV. The release signed here clearly, plainly, and unambiguously informs a signer it is a release of “all liability, loss or damage . . . caused by or arising in any manner from my participation in the Magic of the Mind Show.”
(Italics added.) In all fairness, it is difficult to imagine what more any drafter could do to advise a layperson the release covers all types of liability than to say so.
Of course, I acknowledge the series of cases stating the word “negligence” must be used if negligence is to be released. (See, e.g., Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd.
(1983) 147 Cal.App.3d 309, 319 [195 Cal.Rptr. 90].)
However, as the majority correctly notes, the validity of a release should not turn on “magic” words. Instead, the issue is whether a layperson such as Hohe understood, from whatever language used, that she was releasing persons from negligence liability.
With this in mind, I turn (as does the majority) to the question of the parties’ intention when these release forms were signed. In resolving this question, the following facts are undisputed: (1) Sara had seen the hypnotism show before; (2) part of the show involved hypnotized persons falling down; (3) Sara solicited the opportunity to be hypnotized; and (4) prior to the show she (and her father) released the hypnotist and any third parties “from any and all liability.” (Italics added.)
I am unable to discern, as does the majority, the existence of any ambiguity in the phrase “any and all liability.”[fn2] Sara had seen the show, was aware that participants would fall down, and elected to be among them. She now seeks compensation for injuries allegedly incurred when she fell down. The alleged harm is precisely that for which she released all others from liability. (Cf. Madison v. Superior Court (1988) 203 Cal.App.3d 589 [250 Cal.Rptr. 299]; Kurashige v. Indian Dunes, Inc. (1988)
200 Cal.App.3d 606 [246 Cal.Rptr. 310]; Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1 [236 Cal.Rptr. 181]; Hulsey v.
Elsinore Parachute Center (1985) 168 Cal.App.3d 333 [214 Cal.Rptr. 194] .) Based upon the foregoing, I would hold the release effective and affirm the judgment.
[fn1] I agree with the majority’s statements in section IV regarding the social value of releases and the difficulties which face the successful drafter of a release.
[fn2] The release, quoted in footnote 2 of the majority opinion, ante, page 1563, is not written in legalese or insurance company double-talk.
Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454
Global Travel Marketing, Inc., Petitioner, vs. Mark R. Shea, etc., Respondent.
Supreme Court of Florida
2005 Fla. LEXIS 1454
July 7, 2005, Decided
Notice: [*1] not final until time expires to file rehearing motion, and if filed, determined. prior history: Application for Review of the Decision of the District Court of Appeal – Certified Direct Conflict of Decisions Fourth District – Case No. 4D02-910 (Broward County).
COUNSEL: Greg Gaebe of Gaebe, Mullen, Antonelli, Esco and Dimatteo, Coral Gables, Florida, Edward S. Polk of Conroy, Simberg, Gannon, Krevans and Abel, P.A., Hollywood, Florida and Rodney E. Gould and Brad A. Compston of Rubin, Hay and Gould, P.C., Framingham, Massachusetts, for Petitioner.
Philip M. Burlington of Caruso and Burlington, P.A., West Palm Beach, Florida, Edward M. Ricci and Scott C. Murry of Ricci-Leopold, West Palm Beach, Florida for Respondent.
Louise H. McMurray and Douglas M. McIntosh of McIntosh, Sawran, Peltz. Cartaya and Petruccelli, P.A., Miami, Florida, on behalf of the Florida Defense Lawyers Association and The United States Tour Operators Association as Amici Curiae.
Louise McMurray of Mc McIntosh, Sawran, Peltz. Cartaya and Petruccelli, P.A., Miami, Florida, and Alexander Anolik of San Francisco, California, on behalf of the Association of Retail Travel Agents’ and the Outside Sales Support Network as [*2] Amici Curiae.
Michelle Hankey, William Booth, Maxine Williams and Barbara B. Briggs, West Palm Beach, Florida, on behalf of Legal Aid Society of Palm Beach County as Amicus Curiae.
Steven M. Goldsmith, Boca Raton, Florida and Paul D. Jess, General Counsel, Tallahassee, Florida, On behalf of The Academy of Florida Trail Lawyers as Amicus Curiae.
JUDGES: PARIENTE, C.J. WELLS, ANSTEAD, QUINCE, CANTERO, and BELL, JJ., concur.
LEWIS, J., dissents.
OPINION BY: PARIENTE
OPINION: PARIENTE, C.J.
We have for review a decision of the Fourth District Court of Appeal in which the court certified a question of great public importance:
Whether a parent’s agreement in a commercial travel contract to binding arbitration on behalf of a minor child with respect to prospective tort claims arising in the course of such travel is enforceable as to the minor. Shea v. Global Travel Mktg., Inc., 870 So. 2d 20, 26 (Fla. 4th DCA 2003). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. As phrased by the Fourth District, the issue is narrow, touching only upon binding arbitration and not on any broader contractual waiver of a tort claim brought on behalf of a minor.
[*3] For the reasons that follow, we determine that the arbitration provision in this commercial travel contract is not unconscionable, in violation of any statutory prohibition, or void as against public policy. Because the mother in this case had authority to enter into this contract on behalf of her minor child, the arbitration provision is valid and enforceable. Accordingly, we answer this narrow question in the affirmative and quash the decision below.
I. FACTS AND PROCEDURAL HISTORY
This case arises from a lawsuit brought by Mark R. Shea (the father) over the tragic death of his eleven-year-old son, Mark Garrity Shea (Garrit), during an African safari that Garrit took with his mother, Molly Bruce Jacobs. n1 Before the trip, Garrit’s mother signed a travel contract for the African safari on behalf of herself and her son with Global Travel Marketing. n2 The contract called for Global Travel to provide Jacobs and Garrit a twenty-five-day safari in Zimbabwe and Botswana at a cost of approximately $ 39,000. The travel contract contained provisions concerning travel documents, medical contingencies, and the travel company’s refund and cancellation policy. The contract included [*4] an arbitration clause:
Any controversy or claim arising out of or relating to this Agreement, or the making, performance or interpretation thereof, shall be settled by binding arbitration in Fort Lauderdale, FL, in accordance with the rules of the American Arbitration Association . . . .
Regarding Garrit, the contract specifically provided:
I, as parent or legal guardian of the below named minor, hereby give my permission for this child or legal ward to participate in the trip and further agree, individually and on behalf of my child or ward, to the terms of the above.
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n1 The complaint alleges that during the course of the safari, one or more hyenas dragged Garrit from the tent where he was sleeping alone and mauled him to death.
n2 Garrit’s parents are divorced. Although the record does not reveal which parent had primary custody of Garrit, the father does not contend that the mother lacked authority to sign the arbitration agreement on her son’s behalf.
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After Garrit’s death, [*5] the father, who was named personal representative of his son’s estate, brought suit on behalf of the estate and for both parents as survivors under Florida’s wrongful death statute. The complaint alleged that Global Travel’s failure to fulfill its duty to use reasonable care in operating the safari and warning of dangerous conditions caused his son’s death. A jury trial was requested. Global Travel moved to stay the proceedings and compel arbitration of the father’s claim. In response, the father argued that Jacobs, the mother, did not have legal authority to contract away Garrit’s substantive rights through a release of liability and arbitration clauses.
However, in a hearing on Global Travel’s motion, counsel for the father acknowledged that the validity of the clause releasing Global Travel from liability was not then before the court, and would likely be an issue in the future. The trial court granted Global Travel’s motion to stay the proceedings and compel arbitration, concluding that the arbitration provision bound Garrit’s estate. The court did not determine whether the release of liability was enforceable. n3
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n3 The issue of the pre-injury waiver of liability and whether that issue should be determined in a court of law or in arbitration is not before us. The release of liability reads as follows:
I have been informed and am aware that ADVENTURE TRAVEL CAN BE DANGEROUS and includes certain risks and dangers, including but not limited to . . . dangers of wild animals . . . . I HEREBY RELEASE, WAIVE, INDEMNIFY, and AGREE NOT TO SUE THE AFRICA ADVENTURE COMPANY . . . for any and all losses, damages, or injuries or any claim or demand on account of injury or emotional trauma . . . or on account of death resulting from any cause . . . while the undersigned is participating in a tour or any travel or other arrangements by THE AFRICA ADVENTURE COMPANY . . . .
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The Fourth District reversed. Although it acknowledged that doubt as to the scope of an agreement to arbitrate should be resolved in favor of arbitration, the court determined that “the issue, here, is not one of scope, but of formation—who may be bound by an agreement to arbitrate.” Shea, 870 So. 2d at 23. The court held:
Although we recognize that it is impractical for a parent to obtain a court order before entering into pre-injury contracts, we cannot accept the notion that parents may, carte blanche, waive the litigation rights of their children in the absence of circumstances supported by public policy. Circumstances in which a waiver would be supported by a recognized public policy include waivers in cases of obtaining medical care or insurance or for participation in commonplace child oriented community or school supported activities. We need not decide, here, what additional circumstances might support such a waiver; it is sufficient to state that commercial travel opportunities are not in that category.
Id. at 25. The Fourth District concluded that because the arbitration agreement was unenforceable as to the child on public [*7] policy grounds, the child’s estate could not be bound to arbitrate tort claims arising from the safari. See id. at 26.
The issue in this case is the enforceability of an agreement by a parent on behalf of a minor child to arbitrate claims arising out of a commercial travel contract. Because the validity of the arbitration agreement is a question of law arising from undisputed facts, the standard of review is de novo. See D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003) (stating that standard of review for pure questions of law is de novo, and no deference is given to the judgment of the lower courts).
Global Travel and the amici curiae supporting its position n4 assert that the Fourth District decision contravenes the requirement in the Federal Arbitration Act (FAA) that questions as to the enforcement of an arbitration agreement be resolved in favor of arbitration, and misapplies public policy by ignoring parents’ authority to enter into contracts on behalf of their children. The father and the amici curiae supporting his position n5 assert that the issue is one of state law not governed by the FAA, that the Fourth [*8] District correctly applied state law in holding that the mother’s agreement to binding arbitration on behalf of her son is unenforceable, and that the public policy of protecting children’s interests overcomes parents’ right to raise their minor children and authority to enter into contracts on behalf of their minor children.
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n4 The Florida Defense Lawyers Association, the United States Tour Operators Association, and the Association of Retail Travel Agents and Outside Sales Support Network.
n5 The Academy of Florida Trial Lawyers and the Legal Aid Society of Palm Beach County.
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A. EFFECT OF FEDERAL LAW
Initially, we reject Global Travel’s assertion that enforcement of the arbitration agreement is mandated by federal law. Although the Federal Arbitration Act, which applies to both federal and state court proceedings, reflects a strong federal policy in favor of enforcement of agreements to arbitrate, the FAA also provides that an arbitration agreement may be ruled unenforceable “upon such grounds [*9] as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (2000). The United States Supreme Court has held that under this provision, state law, whether of legislative or judicial origin, is applicable if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally. A state-law principle that takes its meaning precisely from the fact that a contract to arbitrate is at issue does not comport with this requirement of § 2. A court may not, then, in assessing the rights of litigants to enforce an arbitration agreement, construe that agreement in a manner different from that in which it otherwise construes nonarbitration agreements under state law. Nor may a court rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable . . . . Perry v. Thomas, 482 U.S. 483, 492 n.9, 96 L. Ed. 2d 426 (1987) (citations omitted). In Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687 (1996), the Court noted that generally applicable contract defenses under state law, such as fraud, duress, [*10] or unconscionability, may be applied to invalidate arbitration agreements without contravening section 2 of the FAA. Accord Orkin Exterminating Co. v. Petsch, 872 So. 2d 259, 264 (Fla. 2d DCA), review denied, 884 So. 2d 23 (Fla. 2004); Powertel, Inc. v. Bexley, 743 So. 2d 570, 573-74 (Fla. 1st DCA 1999).
The public policy of protecting children from waiver of their litigation rights, on which the Fourth District decision rests, is a generally applicable contract principle and is not peculiar to arbitration agreements. We have previously held that contract provisions unrelated to arbitration may be ruled unenforceable on public policy grounds. See Mazzoni Farms, Inc. v. E.I. DuPont Nemours & Co., 761 So. 2d 306, 311 (Fla. 2000) (holding that a choice-of-law provision in a contract is enforceable “unless the law of the chosen forum contravenes strong public policy”). As the Fourth District observed, the issue of whether a parent may validly enter into an agreement on behalf of a minor child to waive the child’s rights is a question not of the scope of the arbitration agreement but rather of contract formation—“who [*11] may be bound by an agreement to arbitrate.” Shea, 870 So. 2d at 23; see also EEOC v. Waffle House, Inc., 534 U.S. 279, 293, 151 L. Ed. 2d 755 (2002) (“The FAA directs courts to place arbitration agreements on equal footing with other contracts, but it does not require parties to arbitrate when they have not agreed to do so.“) (internal quotation marks omitted). Thus, we are not foreclosed by the FAA from determining the enforceability of the arbitration agreement solely on public policy grounds under state law.
B. ENFORCEMENT OF ARBITRATION AGREEMENTS IN GENERAL
In Florida as well as under federal law, the use of arbitration agreements is generally favored by the courts. See Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999). However, this Court has cautioned that “neither the statutes validating arbitration clauses nor the policy favoring such provisions should be used as a shield to block a party’s access to a judicial forum in every case.” Id. at 642. Accordingly, we have held that a statute requiring that every automobile insurance policy for personal injury protection coverage mandate arbitration [*12] of claims disputes involving an assignee of benefits violated medical providers’ access to courts under article I, section 21 of the Florida Constitution. See Nationwide Mut. Fire Ins. Co. v. Pinnacle Medical, Inc., 753 So. 2d 55, 57 (Fla. 2000). We concluded that, unlike cases in which we have upheld mandatory arbitration legislation, the medical providers’ ability to pursue a remedy in court was not replaced with rights of equal or greater value. See id. at 59.
Agreements to arbitrate are treated differently from statutes compelling arbitration. The difference arises because the rights of access to courts and trial by jury may be contractually relinquished, subject to defenses to contract enforcement including voidness for violation of the law or public policy, unconscionability, or lack of consideration. See generally Mazzoni Farms, 761 So. 2d at 311 (recognizing public policy limitation on choice of law provision in contract); Powertel, Inc., 743 So. 2d at 577 (holding arbitration clause in service contract unconscionable); Vichaikul v. S.C.A.C. Enters., Inc., 616 So. 2d 100, 100 (Fla. 2d DCA 1993) [*13] (“Failure of consideration is a defense to the contract.”). In determining whether to compel arbitration pursuant to the parties’ agreement, a court must consider three elements: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. See Seifert, 750 So. 2d at 636.
As stated above, the question of whether a minor child or minor child’s estate may be bound by an agreement to arbitrate made by a parent or guardian on the child’s behalf is a question of contract formation—whether a valid agreement to arbitrate exists. No valid agreement exists if the arbitration clause is unenforceable on public policy grounds. Thus, the issue in this case concerns competing interests: that of the state to protect children and that of parents in raising their children. Where these interests clash on a concrete issue such as the enforceability of a contract entered into on behalf of a minor child, the issue becomes one for the courts.
C. PARENTS AND THE STATE AS GUARDIANS OF MINORS’ LITIGATION RIGHTS
In this case, the trial court based its enforcement of the arbitration agreement [*14] on the “well established principle that parents have a fundamental liberty interest in the care, custody and management of their offspring.” The Fourth District, while acknowledging that Florida law recognizes parental authority to contract for their children to obtain medical care, nonetheless rejected “the notion that parents may, carte blanche, waive the litigation rights of their children in the absence of circumstances supported by public policy.” Shea, 870 So. 2d at 25. Thus, the issue as framed by the decisions in the circuit and district courts is whether the state, through the courts and for reasons of public policy, can override a parent’s right to make this decision by refusing to enforce its consequences.
1. PARENTAL AUTHORITY
Parental authority over decisions involving their minor children derives from the liberty interest contained in the Fourteenth Amendment to the United States Constitution and the guarantee of privacy in article I, section 23 of the Florida Constitution. The United States Supreme Court, in ruling unconstitutional a grandparent visitation statute enacted in Washington, stated that “it cannot now be doubted that the Due Process [*15] Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66, 147 L. Ed. 2d 49 (2000) (plurality opinion). The Court concluded that “the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.” Id. at 72-73 (plurality opinion).
In several cases beginning with Beagle v. Beagle, 678 So. 2d 1271, 1272 (Fla. 1996), this Court has held that laws mandating grandparent visitation violate article I, section 23. In addition, this Court has “on numerous occasions recognized that decisions relating to child rearing and education are clearly established as fundamental rights within the Fourteenth Amendment of the United States Constitution.” Von Eiff v. Azicri, 720 So. 2d 510, 513 (Fla. 1998). Thus, in general, “neither the legislature nor the courts may properly intervene in parental decisionmaking absent significant harm to the child threatened by or resulting [*16] from those decisions.” Id. at 514.
2. THE STATE AS PARENS PATRIAE
The father, relying on the Fourth District decision, recognizes parents’ broad authority over their children but asserts that the State has greater authority as “parens patriae” to rule the arbitration agreement in this case unenforceable because it is contrary to public policy.
“Parens patriae,” which is Latin for “parent of his or her country,” describes “the state in its capacity as provider of protection to those unable to care for themselves.” Black’s Law Dictionary 1144 (8th ed. 2004). The doctrine derives from the common-law concept of royal prerogative, recognized by American courts in the form of legislative prerogative. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 600, 73 L. Ed. 2d 995 (1982). The United States Supreme Court, upholding a state child labor law in Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed. 645 (1944), recognized the parens patriae power when it stated that although the “custody, care, and nurture of the child reside first in the parents, . . . the state as parens patriae may restrict [*17] the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways.” Id. at 166 (footnotes omitted).
In decisions over the past three decades, this Court has expressly relied on the state’s parens patriae authority to protect children in two areas: (1) juvenile delinquency and dependency, see P.W.G. v. State, 702 So. 2d 488, 491 (Fla. 1997); State v. D.H., 340 So. 2d 1163, 1166 (Fla. 1976); In re Camm, 294 So. 2d 318, 320 (Fla. 1974); and (2) child custody and support. See Schutz v. Schutz, 581 So. 2d 1290, 1293 (Fla. 1991); Lamm v. Chapman, 413 So. 2d 749, 753 (Fla. 1982); Kern v. Kern, 333 So. 2d 17, 19 (Fla. 1976). Pervasive statutory schemes cover each of these areas. See generally ch. 39, Fla. Stat. (2004) (“Proceedings Relating to Children”); ch. 61, Fla. Stat. (2004) (“Dissolution of Marriage; Support; Custody”); ch. 984, Fla. Stat. (2004) (“Children and Families in Need of Services”); ch. 985, Fla. Stat. (2004) (“Delinquency; Interstate Compact on Juveniles”).
Although there is no statutory prohibition [*18] on agreements to arbitrate minors’ tort claims, the Fourth District deemed statutes governing settlement of minors’ civil claims to be analogous to a pre-injury arbitration agreement.
Under section 744.301(2), Florida Statutes (2004), parents, acting as the natural guardians of their minor children, n6 may settle their children’s claims for amounts up to $ 15,000. A net settlement greater than $ 15,000 on behalf of a minor requires establishment of a legal guardianship. See § 744.387(2), Fla. Stat. (2004). If a legal guardian and a minor have potentially adverse interests, or if otherwise necessary, the trial court may, for a settlement greater than $ 15,000, and must, for a settlement greater than $ 25,000, appoint a guardian ad litem to represent the minor’s interests. See § 744.301(4)(a); Fla. Stat. (2004). A presuit settlement on behalf of a minor requires court authorization, which may be given if the court determines that the settlement is in the minor’s best interest. See § 744.387(1), Fla. Stat. (2004). Settlement of a pending claim also requires court approval. See § 744.387(3)(a), Fla. Stat. [*19] (2004).
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n6 For children of divorced parents, “the natural guardianship shall belong to the parent to whom the custody of the child is awarded.” § 744.301(1), Fla. Stat. (2004).
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There is no comparable statutory scheme governing pre-injury liability releases and arbitration agreements—those executed before any cause of action accrues—and no statute requiring a parent to obtain court approval before agreeing to arbitrate a claim once it has been filed. Thus, with the exception of disputes involving child custody, visitation, or child support, See § 44.104(14), Fla. Stat. (2004), the Legislature has not precluded voluntary binding arbitration of claims involving children.
D. OUT-OF-STATE PRECEDENT
The Fourth District cited precedent from supreme courts of other states invalidating, on public policy grounds, pre-injury releases of liability signed by parents on behalf of their children. See Shea, 870 So. 2d at 23-24. In the first [*20] of these decisions, the Washington Supreme Court held that enforcement of an exculpatory agreement that released a ski school from any liability for injury, signed by a parent on behalf of a minor child participating in the school, was contrary to public policy. Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 11-12 (Wash. 1992). The court relied on precedent in other jurisdictions and on a state law, similar to section 744.387, Florida Statutes, that required court approval for parents to settle or release a child’s post-injury claim. See id. at 11. In Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, 1066 (Utah 2001), the Utah Supreme Court relied on similar statutory protections of minors’ post-injury claims, as well as the statutory right to disaffirm contracts entered into during minority, to hold unenforceable a pre-injury release signed by an eleven-year-old child subsequently injured when she was thrown from a horse. The court stated that “as in Scott, we see little reason to base the validity of a parent’s contractual release of a minor ‘s claim on the timing of an injury.” Id. Most recently, the [*21] Colorado Supreme Court, relying on that state’s laws concerning oversight of the settlement of minors’ legal claims, held that a release and indemnity agreement signed by the parent of a minor who was a competitive skier was unenforceable in a negligence action against a ski club after an accident in which the minor was rendered blind. See Cooper v. Aspen Skiing Co., 48 P.3d 1229, 1232-34 (Colo. 2002). All three decisions rest on public policy grounds, and each court cited precedent to support its conclusion that it was siding with the clear majority of jurisdictions that had considered the issue. See id. at 1234-36; Hawkins, 37 P.3d at 1065-66; Scott, 834 P.2d at 12.
Significantly, the court in Cooper opined that its decision was not inconsistent with the due process right of parental decisionmaking recognized in Troxel and other United States Supreme Court precedent. The court concluded that a parental release of a child’s right to sue for negligence is “not of the same character and quality as those rights recognized as implicating parents’ fundamental liberty interest in the ‘care, custody and control’ [*22] of their children.” Cooper, 48 P.3d at 1235 n.11. The court also pointed to the United States Supreme Court’s recognition in Prince, 321 U.S. at 166, of the state’s parens patriae authority to guard the “general interest in youth’s well being,” in some circumstances contrary to parental control. Id.
The Massachusetts Supreme Court has reached a contrary conclusion, holding that because a child’s “participation in the city’s extracurricular activity of cheerleading was neither compelled nor essential, . . . the public policy of the Commonwealth is not offended by requiring a release as a prerequisite to that participation.” Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 745 (Mass. 2002). Similarly, the Ohio Supreme Court has held that a parent may bind his or her child to a provision releasing volunteers and sponsors of a nonprofit sports activity from liability for negligence. See Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 696 N.E.2d 201, 205 (Ohio 1998). n7
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n7 Persuaded by the reasoning in Zivich, the Fourth District in this case crafted an exception for “non-profit entities, their employees, and volunteers” to its holding that arbitration provisions agreed to by parents on behalf of their children in commercial travel contracts are not enforceable. Shea, 870 So. 2d at 25.
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Thus, the courts in Cooper, Hawkins, and Scott ruled invalid, on public policy grounds, pre-injury releases of liability entered into by a parent on behalf of a minor child participating in activities with a for-profit business outside a school or community setting, while the courts in Sharon and Zivich upheld such releases in connection with school, community, and volunteer-run activities. One court has justified the distinction represented by these cases on grounds that the potential liability “is a risk against which a for-profit business may insure itself.” Rice v. Am. Skiing Co., No. Civ.A.CV-99-06, 2000 WL 33677027, at *3 (Me. Super. Ct. May 8, 2000). These decisions are instructive on the issue we decide today, but only to a point, because none of them concerned arbitration agreements. Whether a parent may waive his or her child’s substantive rights is a different question from whether a parent may agree that any dispute arising from the contract may be arbitrated rather than decided in a court of law.
More pertinent to the issue in this case are the out-of-state cases dealing with an advance agreement by parents to arbitrate any legal [*24] claims of minors or their estates. n8 One line of precedent centers on contracts for medical services. For example, in Doyle v. Giuliucci, 62 Cal. 2d 606, 401 P.2d 1, 3, 43 Cal. Rptr. 697 (Cal. 1965), the California Supreme Court held that a minor could be bound to an arbitration clause in a medical service contract signed by a parent on the child’s behalf. The court concluded that because minors can be assured of group medical service only if parents can contract on their behalf, in fulfilling their duty to provide care for their children parents should have the authority to agree to arbitrate disputes that arise under the contract. See id.; accord Leong v. Kaiser Found. Hosp., 71 Haw. 240, 788 P.2d 164, 169 (Haw. 1990) (relying on Doyle to hold that a minor could not disaffirm an arbitration provision in a contract for medical care signed by his father).
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n8 Because the mother signed the contract on her own behalf and on her son’s behalf, this case is distinguishable from precedent holding that arbitration of minor’s claims cannot be compelled where there was no advance agreement to arbitrate the minor’s claim and the minor was not a third-party beneficiary of the contract. See, e.g., Fleetwood Enters., Inc. v. Gaskamp, 280 F.3d 1069, 1077 (5th Cir. 2002) (ruling that children who were not signatories to contract, not third-party beneficiaries, and not suing on the basis of the contract were not bound by arbitration agreement signed by their parents), modified, 303 F.3d 570 (5th Cir. 2002); Costanza v. Allstate Insurance Co., No. CIV.A.02-1492, 2002 WL 31528447, at *7 (E.D. La. Nov. 12, 2002) (determining that because children in bringing personal injury claims did not seek to enforce provisions of contract and were not third-party beneficiaries of contract, claims were not subject to arbitration clause); see also Accomazzo v. CEDU Educ. Servs., Inc., 135 Idaho 145, 15 P.3d 1153, 1156 (Idaho 2000) (concluding that trial court did not err in ruling that a child who was a third-party beneficiary of an education contract signed by his father was not bound to an arbitration clause which did not mention the child).
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In this case, the Fourth District distinguished Doyle on grounds that a commercial travel contract evokes different policy concerns than a contract for medical care. See Shea, 870 So. 2d at 24-25. This determination is consistent with the law of necessaries (or necessities), under which children, who normally are incompetent to contract, may be bound to the terms of contracts for necessary services such as medical treatment. See Lee v. Thompson, 124 Fla. 494, 168 So. 848, 850 (Fla. 1936) (“Except as to a very limited class of contracts considered binding, as for necessities, etc., the modern rule is that the contract of an infant is voidable . . . .”). Thus, Doyle was correctly distinguished below.
In Troshak v. Terminix International Co., No. CIV.A.98-1727, 1998 WL 401693, at *5 (E.D. Pa. July 2, 1998), a federal district court held that a pre-injury arbitration agreement by a parent on behalf of a minor child was unenforceable in a personal injury suit subsequently brought by the minor. Attempting to discern Pennsylvania law in a case of first impression, the federal court relied on two previous federal district court decisions [*26] holding that there is no authority for parents to execute a pre-injury release of liability on behalf of a minor child. See id. at *4-5. Extrapolating from these cases, the court concluded that “if a parent cannot prospectively release the potential claims of a minor child, then a parent does not have authority to bind a minor child to an arbitration provision that requires the minor to waive their right to have potential claims for personal injury filed in a court of law.” Id. at *5.
Troshak appears to rest on the same public policy rationale relied upon by the Fourth District in this case.
An intermediate Ohio appellate court reached the opposite conclusion in Cross v. Carnes, 132 Ohio App. 3d 157, 724 N.E.2d 828 (Ohio Ct. App. 1998). The court extended Zivich, in which the Ohio Supreme Court held an exculpatory agreement enforceable against a minor participating in a nonprofit activity run by volunteers, to require arbitration of the claim of a minor who filed suit against the producers of a commercial television talk show on which she was portrayed as a bully. See id. at 836. The court also distinguished arbitration clauses from releases [*27] of liability:
We note that the parent’s consent and release to arbitration only specifies the forum for resolution of the child’s claim; it does not extinguish the claim. Logically, if a parent has the authority to bring and conduct a lawsuit on behalf of the child, he or she has the same authority to choose arbitration as the litigation forum.
E. THIS CASE
The trial court in this case relied on the passage from Cross quoted above to compel arbitration, but the Fourth District, in reversing, relied instead on the limits placed on parental waiver in other areas: “We can discern no common sense reason to depart from the public policy favoring the protection of children from waiver of their basic rights by a parent.” Shea, 870 So. 2d at 25. The Fourth District did not distinguish between releases of liability and arbitration clauses for purposes of its public policy analysis. Nor, apart from categorizing the African safari as a commercial travel opportunity, did the Fourth District relate the safari to other experiences and activities that parents might choose to make available to their minor children. See id. The Fourth District [*28] decision thus implicitly rests on two conclusions:
the opportunity to present a claim in court is so basic a right that its waiver is tantamount to a forfeiture of the claim, and the benefits to children of commercial travel opportunities do not justify enforcement of a parent’s decision to agree to arbitrate a child’s claims arising out of the travel contract. We disagree.
As to the first conclusion, the nature of the waiver agreed to by a parent on behalf of a child—whether it concerns waiver of a legal claim or right, or waiver of the forum in which the claim is presented—is a crucial consideration in determining whether the state’s interest in protecting children renders the waiver unenforceable. While the rights of access to the courts and trial by jury are valuable constitutional rights, we cannot equate a pre-injury release of liability with a pre-injury agreement to arbitrate. As noted by the Ohio court in Cross, such an agreement “does not extinguish the claim.” 724 N.E.2d at 836.
Instead, an arbitration agreement constitutes a prospective choice of forum which “trades the procedures and opportunity for review of the courtroom for the simplicity, informality, [*29] and expedition of arbitration.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S. 614, 628, 87 L. Ed. 2d 444 (1985). The relative advantages and disadvantages of arbitration and litigation may make one path or another preferable to a party, but nothing in the opinion below, the arguments of the parties, or our precedent suggests that an arbitration clause alone is tantamount to waiver or forfeiture of a wrongful death or personal injury claim. In recognizing this distinction, we emphasize that we are assessing only the enforceability of the arbitration clause in this case, and not the release clause.
Further, the lack of a statutory requirement for court involvement in pre-injury arbitration agreements provides a basis for treating these agreements differently from settlements of lawsuits involving minors’ claims, for which appointment of a guardian ad litem and court approval are necessary under certain circumstances pursuant to sections 744.301 and 744.387, Florida Statutes (2004). The Legislature has chosen to authorize court protection of children’s interests as to extant causes of action, but [*30] has not exercised its prerogative as parens patriae to prohibit arbitration of those claims. Instead, the Legislature has specifically authorized enforcement of agreements to arbitrate pending civil disputes while specifically exempting only disputes involving custody, support, and visitation. See § 44.104(14), Fla. Stat. (2004).
The Fourth District decision also reflects an arbitrary distinction between those activities for which an agreement to arbitrate is supported by public policy, and “commercial travel opportunities,” where a parental agreement to arbitrate may be overridden by the state. The court acknowledged the legitimacy of waivers for purposes of obtaining medical care and insurance—which involve the health and security of the child with no educational component—and for “commonplace child oriented community or school supported activities.” Shea, 870 So. 2d at 25.
The distinction drawn by the Fourth District notwithstanding, the line dividing commonplace activities from commercial travel opportunities is far from clear, given that some commonplace school or community activities might also involve commercial travel. The [*31] Fourth District decision might prevent arbitration of claims of minors arising from their parents’ decisions in individually authorizing activities that involve commercial travel, but not from the decisions of school authorities in arranging for the same activity.
We see no basis in fact or law for this distinction, nor a reliable standard by which to apply it without making value judgments as to the underlying activity that the parent has deemed appropriate for the child to engage in. n9 Moreover, the alternative of requiring parents to seek court approval before entering into commercial travel contracts that include arbitration agreements would place courts in a position of second guessing the decisionmaking of a fit parent. As the United States Supreme Court observed in Troxel, there is a presumption that fit parents act in the best interests of their children. . . . Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s [*32] children. 530 U.S. at 68-69 (plurality opinion). There is no indication in this case that the mother was unfit or that the African safari was so inherently dangerous that she failed to act in her child’s best interests in allowing him to participate in this adventure.
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n9 The Third District, citing Shea, has held that a city’s fire rescue explorer program is an activity for which public policy supports a pre-injury release of liability executed by a parent in authorizing the child’s participation. See Gonzalez v. City of Coral Gables, 871 So. 2d 1067, 1067 (Fla. 3d DCA 2004). Because the issue of a pre-injury waiver of all liability is not before us, we do not address the Third District’s decision in Gonzalez.
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Travel’s beneficial effects on the young are well known. Sir Francis Bacon wrote that “travel, in the younger sort, is a part of education; in the elder, a part of experience.” The Oxford Dictionary of Quotations 27 (3d ed. 1979). Had Garrit survived, the [*33] safari (his second) could have significantly broadened his horizons, possibly leading him to pursue a career in zoology or wildlife conservation, or it might have enhanced and sustained a lifelong interest in the people, cultures, wildlife, and geography of the African continent. n10
- – - – - – - – - – - – - – Footnotes – - – - – - – - – - – - – - -
n10 Global Travel states in its initial brief that Garrit “had, by all accounts, become enthralled with Africa and with the animals he saw in the bush during a similar safari the year before his tragic death, returning from that safari to read up on those animals and study the matter exhaustively.” The father does not dispute these representations.
- – - – - – - – - – - – End Footnotes- – - – - – - – - – - – - -
Parents’ authority under the Fourteenth Amendment and article I, section 23 encompasses decisions on the activities appropriate for their children—whether they be academically or socially focused pursuits, physically rigorous activities such as football, adventure sports such as skiing, horseback riding, or mountain climbing, or, as in this case, an adventure vacation in a game reserve. [*34] Parents who choose to allow their children to engage in these activities may also legitimately elect on their children’s behalf to agree in advance to arbitrate a resulting tort claim if the risks of these activities are realized.
Just as the mother in this case had the authority to enter into a contract for herself and her minor child to travel to Africa for a safari, she also had the authority to agree to arbitrate claims on his behalf arising from that contract. In the absence of legislation restricting agreements to arbitrate the potential claims of minors, enforcement of these agreements in commercial travel contracts is not contrary to the public policy of protecting children.
For the reasons set forth above, we hold that an arbitration agreement incorporated into a commercial travel contract is enforceable against the minor or minor’s estate in a tort action arising from the contract. We emphasize that we decide only the narrow issue presented by the certified question. Because the validity of the release of liability in the travel contract in this case is not before us, we express no opinion whether the release is enforceable or whether its enforceability [*35] should be decided by the trial court or by arbitration. Accordingly, we answer the certified question in the affirmative, quash the decision of the Fourth District, and remand for proceedings not inconsistent with this opinion.
It is so ordered.
WELLS, ANSTEAD, QUINCE, CANTERO, and BELL, JJ., concur.
LEWIS, J., dissents.
Bateman v. Sport Photo and EMS, Inc., 1983 U.S. Dist. LEXIS 15461 (S.D. New York 1983)
Maureen S. Bateman, Plaintiff, against Sport Photo and EMS, Inc., Defendants.
No. 81 Civ. 4790 (MJL)
1983 U.S. Dist. LEXIS 15461
July 14, 1983
COUNSEL: [*1] J. DENNIS McGRATH, ESQ., 321 East 89th Street, New York, New York 10028, for plaintiff.
ROGERS & WELLS, 200 Park Avenue, New York, New York 10166, for defendants.
OPINION BY: LOWE
MEMORANDUM OPINION AND ORDER
MARY JOHNSON LOWE, D. J.
This action, brought pursuant to New York Civil Rights Law Sections 50 and 51, was originally commenced in New York Supreme Court. The action was subsequently removed by the defendants to this Court. Plaintiff alleges that defendants used a photograph of her taken during the 1980 Perrier 10 Kilometer Run in New York Ciry, for advertising purposes, without her written consent, in violation of the above-mentioned statute. 1 Defendants have moved for summary judgment on the ground that plaintiff signed a release on her entry blank which gave the New York Roadrunners Club ["NYRRC"] and its assigns “full permission… to use any photographs, video tapes, motion pictures, recordings, or any other record of this event [the Perrier 10 Kilometer Run] for any legitimate purpose.” Defendants claim that NYRRC assigned the rights, acquired by virtue of plaintiff’s release, to Sportphoto for use in connection with Sportphoto’s business of soliciting [*2] mail order sales of photographs from contestants in competitive foot races.
1 Briefly stated, defendants’ business operates as follows. Defendants’ employees take photographs of runners as they participate in a race. Thereafter, defendants obtain the names and addresses of the participants from the sponsor of the race, and mail the participants “proof cards” of the photograph along with an offer to sell them a color copy of the photograph. During the course of the Perrier 10K defendants took plaintiff’s photograph, which was subsequently purchased by plaintiff’s husband. Plaintiff does not object to the sending of the proof card or the sale of her photograph to her husband. Rather, plaintiff objects to the use of her photograph as part of an advertisement of defendants’ Special Poster Offer”. Almost 6,000 copies of the Special Poster Offer, including plaintiff’s photograph, were printed and mailed to participants in the 1981 New York Marathon. (Evenson Dep. at 55).
Plaintiff argues that there are two major issues of material fact which preclude the granting of summary judgment in favor of defendants; first, whether plaintiff, by signing the so-called “release”, consented [*3] to the use of her photograph for advertising purposes unrelated to the event in which she was running; and second, whether there was a valid assigment by NYRRC to Sportphoto. The Court agrees that there are genuine issues of material fact in this case which render summary judgment inappropriate.
The parties’ dispute concerning the correct interpretation of the “release” centers around the use of the phrase “for any legitimate purpose”. Defendants argue that “legitimate” should be given its dictionary meaning, which would clearly encompass advertising and commercial purposes. Plaintiff responds, and the Court agrees, that the phrase should not be construed without reference to the “circumstances under which the entry blank was signed, and the purpose for which it was required – getting a number to run a race.” Plaintiff’s Op. Memo., at 20.
[HN1] The law is clear with respect to the interpretation of releases generally that their “meaning and coverage necessarily depend as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given. Certainly, a release may not be read to cover matters which the parties did [*4] not desire or intend to dispose of”. Cahill v. Regan, 5 N.Y.2d 292, 299, 184 N.Y.S.2d 348, 354, 157 N.E.2d 505, 510, quoted in Tarantola v. Williams, 48 AD 2 552 371 N.Y.S.2d 136, 139. The ultimate question in this case is whether, in light of all of the surrounding circumstances, the parties could reasonably have intended plaintiff’s signature on her entry blank to signify her consent to the use of her photograph for commercial purposes in connection with a different race a year and a half later; or whether, as plaintiff contends, the only use contemplated was promotional activity in connection with the race plaintiff was then entering. 2 The Court is convinced on the record before it that this question should be resolved by the trier of fact.
2 Plaintiff’s affidavit makes clear that if a photograph of her running in the Perrier 10K appeared in an article about that race, or if the sponsor of the race showed a video-tape of the race, in which plaintiff happened to appear she would deem those uses “legitimate” within the meaning of the release. Bateman Aff. P29.
This case is not, as defendants suggest, analagous to cases in which courts have broadly construed releases [*5] entered into by professional models and actors. Unlike the plaintiffs in those cases, who knowingly signed releases for commercial purposes in pursuit of their careers, the plaintiff here is an amateur athlete who signed a release for the sole purpose of entering a footrace. What constitutes a “legitimate use” of an individual’s photograph may vary from one context to another. Thus, the present case raises factual questions concerning the intent of the parties and the proper interpretation to be given the release.
Plaintiff also claims that there is a genuine issue of material fact with respect to whether defendants were the assignees of whatever rights NYRRC obtained by virtue of the entry blank “release”. Plaintiff acknowledges that there was a verbal agreement in 1979 (and renewed thereafter), between NYRRC and defendants giving defendants the exclusive right to take photographs of runners at the Perrier 10K for subsequent mail order sale. However, she argues that this agreement did not constitute an “assignment” of any rights on the entry blank; nor did it contemplate the use of one runner’s photograph for advertising directed at other runners.
Defendants maintain that [*6] in construing the agreement between NYRRC and defendants, the intent of the parties is controlling. They argue that in this case, the intent of the parties has been explicitly set out in the affidavits of Mr. Lebow, president of the NYRRC, and Mr. Evenson, president of defendants. Both Mr. Lebow and Mr. Evenson state that NYRRC intended to assign defendants the right to use runners’ photographs for all legitimate purposes, including advertising in connection with defendants’ business of selling photographs by mail. It is defendants’ position that in light of these clear expressions of intent, the assignment issue should be resolved as a matter of law.
Plaintiff argues that the rest of the evidence, including portions of Mr. Evenson’s own deposition testimony, contradicts the statements of Mr. Lebow and Mr. Evenson with respect to their intent at the time the agreement was reached, and thus raises a triable issue of fact. For example, Mr. Evenson testified during his deposition that he and Mr. Lebow never discussed the language of the entry blank “release”, the assignment of rights under the entry blank “release”, or the use of a participant’s photograph in the manner challenged [*7] herein, during negotiations for the agreement.Mr. Lebow testified that he could not recall whether these issues had been discussed. Defendants respond that the parties need not have anticipated or discussed every specific application of the agreement so long as the agreement was sufficiently broad to encompass those applications.
We find that the plaintiff has raised questions of credibility and intent which, even where the evidence weighs strongly in favor of one side, are better left to the trier of fact.
For the reasons stated above, defendants’ motion for summary judgment is hereby denied.
It is So Ordered.
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Azad v. Mill Creek Equestrian Center, Inc., 2004 Cal. App. Unpub. LEXIS 11218
Nicole Azad, Plaintiff and Appellant, v. Mill Creek Equestrian Center, Inc., Defendant and Respondent.
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION EIGHT
2004 Cal. App. Unpub. LEXIS 11218
December 13, 2004, Filed
NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 977(a), PROHIBIT COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 977.
PRIOR HISTORY: APPEAL from a judgment of the Superior Court of Los Angeles County, No. SC070887. Paul G. Flynn, Judge.
CORE TERMS: equestrian, gross negligence, lesson, ring, dive, misconduct, summary judgment, extreme departure, training, riding, sport, horse, standard of conduct, ordinary negligence, instructor, willful, rider, risks inherent, recommended, dismount, manual, horseback riding, jumping, notice of appeal, material fact, totally outside, triable issue, inappropriate, inherently, correctly
COUNSEL: Law Offices of Diane Goldman and Diane Goldman for Plaintiff and Appellant.
Clinton & Clinton, David A. Clinton and Katherine M. Fesler for Defendants and Respondents.
JUDGES: COOPER, P. J.; RUBIN, J., FLIER, J. concurred.
OPINION BY: COOPER
Appellant injured herself falling off a horse during a horseback riding lesson. In this appeal, she challenges the award of summary judgment entered in favor of the equestrian center. Reviewing the record de novo, we find Azad released all claims other than gross negligence and willful misconduct. She does not allege any willful misconduct. Because she provides no evidence of gross negligence, the trial court correctly entered summary judgment. We shall affirm.
[*2] The facts interpreted in the light most favorable to Azad indicate the following. On March 16, 2001, Nicole Azad, an inexperienced rider, had a private horseback riding lesson at Mill Creek Equestrian Center, Inc. (MCEC). Prior to her lesson, she signed a release of liability, which was part of a two page document. Each page of the release contained a heading identifying it as a release.
During Azad’s lesson, she rode a horse named Bruno and was instructed by Sandra Samel. Samel chose to hold the lesson in a ring known as the jumping ring even though it was not the ring commonly used for beginning lessons. At the same time as Azad’s lesson, other riders were in the jumping ring including Courtney Leonard. Leonard rode a horse named Dan, who had been injured. Leonard fell off Dan, and Dan started running. In response to Dan, Bruno started running. Azad was unable to gain control over Bruno. Samel did not instruct Azad to immediately dismount and did not grab Bruno’s reins. Bruno jumped the fence, which was not as high as the standard in the industry. Azad fell off Bruno and fractured her leg.
Azad’s expert, Jill Cooke, opined that the height of the railings in the jumping ring [*3] ranged from two to two and a half feet where industry standard was three and a half feet. Cooke also concluded that “separated schooling areas are recommended.” According to Cooke, Samel should have chosen a different ring for Azad’s lesson, one dedicated to inexperienced riders. Cooke also concluded that Samel should have instructed Azad to dismount Bruno and should have held Bruno’s reigns. Cooke opined that “Ms. Samel’s failure to act promptly and appropriately to protect her student thereby created new risk to [Ms. Azad], over and above those inherent in the sport.”
Azad filed a complaint for negligence against MCEC and alleged that MCEC committed both negligence and gross negligence. MCEC moved for summary judgment.
The trial court granted MCEC’s motion for summary judgment. The court found that Azad’s express waiver was valid and that the assumption of risk doctrine applied. Azad appealed. The notice of appeal was filed after the order granting summary judgment but before judgment was entered. Construing the notice of appeal liberally, we deem this an appeal from the judgment which was subsequently entered. (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn 7.) [*4]
Azad argues there are material issues of fact regarding whether the release was clear and whether it exempted the challenged conduct. She also argues MCEC increased the risk to Azad beyond that inherent in horseback riding.
I. Express Assumption of Risk
Prior to her horse back riding lesson, Azad signed the following release:
“I agree that in consideration for this stable allowing my participation in this activity, under the terms set forth herein and in the MILL CREEK RULES AND REGULATIONS of which I received a copy, read, and understand, I the rider and the parent or legal guardian thereof if a minor, and on behalf of my heirs, administrators, personal representative or assigns, do agree to hold harmless, release and discharge MILL CREEK EQUESTRIAN CENTER, its owners, agents, employees, officers, directors, representatives, assigns, members, owner(s) of premises and trails, affiliated organizations, insurers, and others acting on its behalf (hereinafter collectively referred to as associates) of and from all claims, demands, causes of action and legal liability whether the same be known or unknown, anticipated or unanticipated, due to MILL CREEK [*5] EQUESTRIAN CENTER’S and/or its associates ordinary negligence; and I do further agree that except in the event of MILL CREEK EQUESTRIAN CENTER’S gross negligence and willful and wanton misconduct, I shall not bring any claims, demands, legal actions and causes of action against MILL CREEK EQUESTRIAN CENTER and ITS ASSOCIATES as stated above in this clause, for any economic and non-economic losses due to bodily injury, death, property damage sustained by me and/or my minor child and/or legal ward in relation to the premises and operations of MILL CREEK EQUESTRIAN CENTER to include while riding, handling, or otherwise being near horses owned by or in the care, custody and control of MILL CREEK EQUESTRIAN CENTER, whether on or off the premises of MILL CREEK EQUISTRIAN CENTER. I further understand that all riding engaged in at MILL CREEK EQUESTRIAN CENTER is solely at my own risk and that MILL CREEK EQUESTRIAN CENTER is not liable for any injury which may occur to me on its premises, whether bodily injury or otherwise. I further agree to release MILL CREEK EQUESTRIAN CENTER, its agents and employees from any and all liability for any injuries I may sustain while riding and agree to [*6] indemnify and hold MILL CREEK EQUESTRIAN CENTER harmless as to all claims, actions, damages, costs and expenses, including attorney’s fees, arising therefrom. [P] The aforesaid release and limitation of liability includes, without limitation, any obligations of MILL CREEK EQUESTRIAN CENTER with respect to consequential damage and negligent behavior of any of its employees. . . .” (Emphasis added.)
A. Validity of the Release
Citing Conservatorship of Estate of Link (1984) 158 Cal. App. 3d 138, 141-142, 205 Cal. Rptr. 513 (Link), Azad argues that the release is not enforceable because it is not readily identifiable as a release. In Link, the court found that a release should be distinguished from other paragraphs of the document; a release should be conspicuous; and a release must clearly convey that rights are being released. (Ibid.)
The release satisfies the Link criteria. It contains the title “LIABILITY RELEASE AND INDEMNITY AGREEMENT.” Each page of the two page document contains a heading which is printed in bold print and underlined “RIDING INSTRUCTION AGREEMENT AND LIABILITY RELEASE FORM.” Above the signature line, in a paragraph [*7] titled “signer statement of awareness,” there is an acknowledgment of understanding the liability release, which Azad signed. Unlike in Link, the release does not appear to be “calculated to conceal and not to warn the unwary.” (Link, supra, 158 Cal. App. 3d at p. 141.)
Azad claims that it is not clear “what conduct is exempted from liability.” She faults the release for “simultaneously purporting to encompass claims based upon [ordinary negligence] and excluding claims based upon [gross negligence].” Azad points out that, in Continental Ins. Co. v. American Protection Industries (1987) 197 Cal. App. 3d 322, 242 Cal. Rptr. 784, a case not involving a release, the court held “in light of the adoption of the doctrine of comparative negligence in California, any attempt to categorize gross negligence separately from ordinary negligence is unnecessary.” (Id. at p. 330.) Continental Insurance Co., however, did not hold that the distinction between ordinary and gross negligence never is relevant or is inherently ambiguous. To the contrary, it recognized that the distinction remained viable where a statute proscribes gross negligence. [*8] (Id. at p. 329.) The express contractual provision distinguishing between ordinary and gross negligence is not inherently ambiguous.
Thus, the release covers conduct other than gross negligence and intentional misconduct. 1 Azad does not allege intentional misconduct. In the next section, we consider whether Azad has provided any evidence of gross negligence.
1 MCEC argues that the “Release was specific enough to warn Appellant, and to convey that Respondents would not be held liable for any physical injury to Appellant.” While the release discusses liability for “any injury” it expressly excludes “gross negligence and willful and wanton misconduct.”
II. Implied Assumption of Risk
By consenting to participate in a sport that includes risks, a person consents to assume the risks inherent in the sport. (Knight v. Jewett (1992) 3 Cal.4th 296, 311.) A person does not consent to a breach of a duty by another that increases the risks inherent in the sport. (Ibid.) [*9] “‘[A] purveyor of recreational activities owes a duty to a patron to not increase the risks inherent in the activity in which the patron has paid to engage. . . .’” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1005 (Kahn).)
In Kahn, supra, 31 Cal.4th at p. 996, our high court considered the doctrine of assumption of the risk in the context of a lawsuit against a swimming instructor. The court held that a sports instructor breaches a duty of care only “‘if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is ‘totally outside the range of the ordinary activity.’” (Ibid.) The court further found evidence of reckless conduct sufficient to raise a triable issue of material fact where a swim coach required a student to dive into a shallow pool without providing her any training, after promising she would not be required to dive. (Id. at p. 996.) The court specifically relied on the following evidence: “the lack of training in the shallow-water dive disclosed by plaintiff’s evidence, especially in the face of the sequences training recommended in the [*10] Red Cross manual submitted by plaintiff; the coach’s awareness of plaintiff’s deep-seated fear of such diving; his conduct in lulling her into a false sense of security through a promise that she would not be required to dive, thereby eliminating any motivation on her part to learn to dive safely; his last-minute breach of that promise under the pressure of a competitive meet; and his threat to remove her from the team or at least the meet if she refused to dive.” (Id. at p. 1012.)
Here, Azad has alleged gross negligence on the part of both her instructor and the equestrian center. Gross negligence is defined as “‘”the want of even scant care or an extreme departure from the ordinary standard of conduct.”‘” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185-1186, quoting Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 138, 181 Cal. Rptr. 732.) This definition is similar to the standard employed in Kahn – conduct totally outside the range of ordinary activity. Therefore, we consider whether Azad has provided any evidence of an extreme departure from the ordinary standard of conduct. [*11] 2
2 Both parties cite numerous cases decided under an ordinary negligence standard, including this division’s decision in Giardino v. Brown (2002) 98 Cal.App.4th 820. We need not assess the applicability of these cases in light of Kahn because here Azad expressly released claims of ordinary negligence.
Azad relies almost exclusively on evidence from her expert, Cooke. However Cooke’s testimony does not demonstrate an extreme departure from the ordinary standard of conduct. Cooke states that the railing should have been higher, it was “recommended” that a ring be used for only one lesson, the choice of rings was “inappropriate,” and Samel’s response was “inappropriate.” Samel should have “immediately had her student dismount.” Cooke also states that Samel was “inadequately trained,” but provides no basis for this conclusion. Thus, this case is not like Kahn, where the plaintiff provided an established training manual and showed an extreme departure from this manual in that there was [*12] evidence she received no training at all. Because Azad identifies no extreme departure from the ordinary standard of conduct, she fails to raise a triable issue of material fact. The trial court correctly entered summary judgment in favor of MCEC. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
The judgment is affirmed.
COOPER, P. J.
Ravey v. Rockworks, LLC, Et Al. 12-1305 (La.App. 3 Cir. 04/10/13); 2013 La. App. LEXIS 720 (La. App. 2013)Posted: July 1, 2013
Ravey v. Rockworks, LLC, Et Al. 12-1305 (La.App. 3 Cir. 04/10/13); 2013 La. App. LEXIS 720
Carl Ravey v. Rockworks, LLC, Et Al.
Court of Appeal of Louisiana, Third Circuit
12-1305 (La.App. 3 Cir. 04/10/13); 2013 La. App. LEXIS 720
April 10, 2013, Decided
THIS DECISION IS NOT FINAL UNTIL EXPIRATION OF THE FOURTEEN DAY REHEARING PERIOD.
PRIOR HISTORY: [*1]
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, NO. C-20113689. HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE.
COUNSEL: Michael J. Remondet, Jr., Jeansonne & Remondet, Lafayette, LA, COUNSEL FOR DEFENDANTS/APPELLEES: Rockworks, LLC, Colony Speciality Ins. Co.
Kilyun Luke Williamson, Williamson, Fontenot & Campbel, Baton Rouge, LA, COUNSEL FOR PLAINTIFFS/APPELLANTS: Carl Ravey.
JUDGES: Court composed of John D. Saunders, Billy Howard Ezell, and Shannon J. Gremillion, Judges.
OPINION BY: JOHN D. SAUNDERS
This case involves a suit by the patron of a rock climbing facility against the facility for negligence in training and supervision. The trial court granted the facility’s motion for summary judgment and dismissed the suit. We affirm.
FACTS AND PROCEDURAL HISTORY:
On August 14, 2010, Plaintiff-Appellant, Carl Ravey (“Ravey”), as a mentor for youth, was visiting Lafayette, Louisiana with the Civil Air Patrol, which operates out of Ascension Parish, Louisiana. The Civil Air Patrol is comprised of children aged twelve to eighteen. The group was in Lafayette for a training exercise at the University of Louisiana at Lafayette. While in Lafayette, the group of sixteen young men and [*2] women, with their adult chaperones, and with a Civil Air Patrol Unit from Hammond, Louisiana, visited Rok Haus to use the climbing facilities.
Upon their arrival, the participants paid their individual fees and initiated a group safety training exercise with Adelle Anderson (“Anderson”), one of the employees at Rok Haus that evening. The attendees received training and instruction on climbing safety and the safe use of climbing equipment in a fifteen to twenty minute safety meeting known as a “belay check.” Every climber at Rok Haus is harnessed and equipped with a safety rope, which is attended to and operated by a “belayer,” who controls the safety rope through a locking device known as a Grigri. The belayer’s job is to look after the climber’s ropes and to operate the Grigri. In order to release the rope to allow a climber to descend, the belayer must pull a lever on the side of the Grigri.
Following safety training, Ravey began to climb the rock wall while tethered to his belayer, David Kelley (“Kelley”), a fourteen-year-old member of the Civil Air Patrol. The group climbed for approximately forty-five minutes when Ravey, [Pg 2] upon reaching the top of the wall, a distance of approximately [*3] twenty to twenty-four feet from the ground, fell almost all the way to the ground. He was partially suspended, but fell far enough such that his leg impacted the floor and was injured. As Ravey fell, the safety rope fed freely through the locking device indicating that Kelley was holding the lever in the open position. When Kelley released the lever, the Grigri locking device engaged and the rope arrested Ravey’s fall, but Ravey’s leg had already made contact with the floor and was injured.
Ravey brought this action alleging negligence on the part of Rok Haus and its affiliates/insurer. Rok Haus filed a motion for summary judgment alleging no duty was breached on the part of Rok Haus and that there was no genuine issue of material fact so judgment was proper as a matter of law. The trial court granted the motion for summary judgment and dismissed Ravey’s claims. Ravey appeals.
ASSIGNMENTS OF ERROR:
Ravey sets forth the following assignments of error:
1. The trial court erred in granting the motion for summary judgment as there is an increased duty to provide training and supervision when minors are involved in an inherently dangerous activity.
2. The trial court erred in granting the motion [*4] for summary judgment as there are genuine issues of material fact regarding the adequacy of training received by the Ravey party prior to engaging in a hazardous activity and regarding the adequacy of the supervision provided after training.
LAW AND ANALYSIS:
Standard of Review
[HN1] When an appellate court reviews a district court’s judgment on a motion for summary judgment, it applies the de novo standard of review, “using the same criteria that govern the trial court’s consideration of whether summary judgment is [Pg 3] appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638.
[HN2] A motion for summary judgment shall be granted when “the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966. “[I]f reasonable persons could only reach one conclusion, then there is no need for trial on that issue and summary judgment is appropriate.” [*5] Hines v. Garrett, 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765-66 (quoting Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751). A fact is “material” when “its existence or nonexistence may be essential to plaintiff’s cause of action under the applicable theory of recovery.” Smith, 639 So.2d at 751.
1. Heightened Duty
The first issue raised on appeal deals with the issue of negligence on the part of Rok Haus. [HN3] In order for liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) duty, (2) breach, (3) cause-in-fact, (4) scope of duty/scope of risk, and (5) actual damages. Pinsonneault v. Merch. & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So.2d 270.
[HN4] “Duty is a question of law. Simply put, the inquiry is whether the plaintiff has any law–statutory, jurisprudential, or arising from general principles of fault–to support his claim.” Faucheaux v. Terrebonne Consol. Government, 615 So.2d 289, 292 (La.1993). The duty owed to an invitee “is that of reasonable and ordinary care, which includes the prior discovery of reasonably discoverable conditions of the premises that may be unreasonably dangerous, [*6] and correction thereof or a warning to the invitee of the danger.” Alexander v. Gen. Acc. Fire & [Pg 4] Life Assur. Corp., 98 So.2d 730, 732 (La.App. 1 Cir. 1957). “[M]embers of [gyms] are owed a duty of reasonable care to protect them from injury on the premises.” Thomas v. Sport City, Inc., 31,994 (La.App. 2 Cir. 06/16/99), 738 So.2d 1153, 1157. “This duty necessarily includes a general responsibility to ensure that their members know how to properly use gym equipment.” Id.
Ravey argues that rock climbing at Rok Haus is an unreasonably dangerous activity such that it requires a heightened duty. In support of this argument, he cites Prier v. Horace Mann Ins. Co., 351 So.2d 265 (La.App. 3 Cir. 1977), writ denied, 352 So.2d 1042 (La.), where the court found that a greater degree of care must be exercised by a school if a student uses an inherently dangerous object or engages in an activity where it is reasonably foreseeable that an accident or injury may occur.
In Prier, the court stated that [HN5] a teacher could not be “liable in damages unless it is shown that he or she, by exercising the degree of supervision required by the circumstances, might have prevented the act which caused the damage, [*7] and did not do so.” Prier, 351 So.2d at 268. “It is also essential to recovery that there be proof of negligence in failing to provide the required supervision and proof of a causal connection between that lack of supervision and the accident.” Id. It further explained:
Again, the school board cannot foresee and guard against all the dangers incident to the rashness of children. It is not the insurer of the lives or safety of children. The school board, through the principals and/or the teachers, are expected to take reasonable precautions and care to avoid injury to the students.
Id at 269 (quoting Whitfield v. East Baton Rouge Parish Sch. Bd., 43 So.2d 47 (La.App. 1 Cir. 1949)).
[HN6] As with school boards, gyms are not the insurers of the lives or safety of the patrons of the club. See Gatti v. World Wide Health Studios of Lake Charles, Inc., [Pg 5] 323 So.2d 819 (La.App. 2 Cir. 1975). A gym cannot be expected to foresee or guard against all dangers incident to the rashness of its patrons. Furthermore, the gym must only take reasonable precautions under the circumstances to avoid injury. To prove negligence on the part of Rok Haus, Ravey must show both a failure to provide reasonable training [*8] and supervision under the circumstances, as well as proof of a causal connection between this lack of reasonable training/supervision and the accident.
As a gym, Rok Haus owed a duty of reasonable care under the circumstances. The equipment was visually inspected prior to usage and was functioning properly after the incident.1 Ravey and Kelley were given proper instructions on how to climb the wall and use the equipment properly. Ravey and Kelley were also observed using the equipment to lower climbers properly before they were allowed to climb and belay by themselves. During the time the group was climbing prior to the accident, two Rok Haus employees observed the group to ensure they were using the gym’s equipment properly. Ravey made five or six successful climbs on the wall of the gym prior to the accident.
1 The particular Grigri (hand brake) in question remained in use for approximately one year after the incident.
It cannot be said that Rok Haus acted unreasonably in training its patrons on the proper use of the climbing equipment and in assisting the patrons with the equipment. Rok Haus employees provided the usual training to Ravey and his belayer. The employees observed them [*9] using the equipment properly before allowing them to climb on their own. The Rok Haus employees also continued to supervise the climbers after training. There is no evidence that the measures taken by Rok Haus’ employees to protect its patrons were inadequate under the circumstances and that a lack of supervision/training caused the accident. There [Pg 6] has not been a showing of both a failure to provide proper supervision and training along with a causal link to the incident in question. As such, there is no evidence that Rok Haus breached its duty of as a gym owner. Because the first element of negligence has not been sustained, the other four will not be addressed.
2. Adequacy of Training & Supervision
The final issue raised on appeal is whether there is a genuine issue of material fact as to the adequacy of training and supervision provided by Rok Haus. The existence of evidence as to inadequacy of training and supervision is essential to plaintiff’s cause of action. Without evidence as to said inadequacy, summary judgment was proper. See La.Code Civ.P. art. 966.
Rok Haus mandates a “belay check” safety session before any patrons climb the rock walls. During the belay check, the [*10] patrons are assisted with donning their harnesses and fastening themselves to the safety ropes. When a patron is climbing the wall, he is attached to a rope that runs up to a pulley anchored to the ceiling. From the pulley, the rope runs down to the belayer. The belayer wears a harness which is anchored to the floor and attached to the Grigri, through which the rope from the ceiling pulley runs. The function of the Grigri is to clamp the rope if the climber should fall. It is designed such that it is automatically clamps the rope if there is a sudden pull on the rope. In order to feed slack to the climber so that he may descend, the belayer must manually pull a lever to release the clamp on the rope.
The members of the Civil Air Patrol were instructed in pairs. Ravey and Kelly were given instructions on how to climb the wall and use the equipment properly. When climbing higher than ten feet along the wall, as Ravey was doing, climbers and belayers are required to wear harnesses attached to a safety rope. After instructions and assistance in donning the protective gear, the climber and [Pg 7] belayer were instructed in the proper method of belaying. Thereafter, the belayers handle the [*11] ropes under the instructors’ supervision.
Once the instructor determines the belayer can handle the safety ropes correctly, the belayers are instructed in the proper procedure for lowering a climber. The belayers must then operate the rope and the Grigri under the supervision of an instructor. After demonstrating an ability to belay the instructor, the belayers are allowed to belay volunteer climbers in the group under the supervision of the instructor.
This safety training session lasted approximately fifteen to twenty minutes. The members of the Civil Air Patrol group were individually instructed in safe climbing and belaying techniques and were observed operating the equipment properly before being allowed to climb and belay on their own. After receiving their safety training in the proper methods of belaying, Ravey, Kelley, and the rest of the Civil Air Patrol group climbed for forty-five minutes to an hour. During this time, two supervisors were present who observed the group to ensure that they were using the gym’s equipment properly. Ravey made five or six climbs on the wall prior to his accident.
There is no evidence to suggest that Rok Haus did not act reasonably in training [*12] its patrons on the proper use of the climbing equipment and in assisting the patrons in donning the equipment. Each patron who belays (operates the safety control device, the Grigri, and controls the safety rope) is personally instructed on the proper belaying techniques and is observed to ensure that the patron is capable of operating the equipment correctly before they are allowed to belay on their own. Furthermore, after completion of the safety check and practice, the climbers remained under the supervision and watch of two supervisors. The absence of evidence as to the material facts of inadequate training and inadequate supervision [Pg 8] makes summary judgment appropriate. As such, summary judgment as to the adequacy and training and supervision was proper.
We note that rock climbing is a recreational activity that involves substantial risk. Many other recreational activities such as weight lifting and swimming also involve a substantial degree of risk. The risk associated with these and other physically-challenging sports are well recognized. [HN7] The duty on the gym operator, when these types of sports are conducted, is that of providing a sound and secure environment for undertaking [*13] a clearly risky form of recreation and not that of removing every element of danger inherent in rock climbing, weight lifting, or swimming. The duty imposed on the gym is one of reasonable care under the circumstances. Ravey focuses on the age of the boy holding the rope and argues that he should have been given more training because of his age. However, Ravey points to no authority suggesting that fourteen year olds are not adequately mature to perform this kind of activity or that the training was inadequate in this instance. The record contains no evidence to suggest the training was inadequate or that a person of fourteen years would need more training than was given to teach him to perform. It is this total absence of evidence that drives the summary judgment process and, in this case, compels affirmation.
The record contains no evidence to suggest that the duty of Rok Haus to provide training and supervision was not done reasonably under the circumstances. Furthermore, there is no genuine issue of material fact as to the adequacy of training received by the Ravey party prior to engaging in climbing and regarding the adequacy of the supervision provided after training.
Costs [*14] of this appeal are assessed to Ravey.
Sanders v. Laurel Highlands River Tours, Incorporated, 1992 U.S. App. LEXIS 15094 (4th Cir 1992)
James A. Sanders, Plaintiff-Appellant, v. Laurel Highlands River Tours, Incorporated; Laurel Highlands River Tours of Maryland, Incorporated, Defendants-Appellees.
1992 U.S. App. LEXIS 15094
May 5, 1992, Argued
June 29, 1992, Decided
Notice: Rules of the Fourth Circuit Court of Appeals may limit citation to unpublished opinions. Please refer to the rules of the United States Court of Appeals for this circuit.
Subsequent History: Reported as Table case at 1992 U.S. App. LEXIS 22122
Prior History: Appeal from the United States District Court for the District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CA-91-1507-S)
Counsel: Argued: Richard Evan Jordan, Washington, D.C., for Appellant.
Howard J. Schulman, Baltimore, Maryland, for Appellee.
Judges: Before Ervin, Chief Judge, Hamilton, Circuit Judge, and Howard, United States District Judge for the Eastern District of North Carolina, sitting by designation.
Opinion by: Per Curiam
James A. Sanders appeals the order of the district court granting summary judgment in favor of Laurel Highlands River Tours, Inc. (Laurel) on his claims arising from injuries he received while on a white-water rafting trip. Sanders also appeals the district court’s denial of his motion for reconsideration of the judgment. The district court granted summary judgment on the grounds that Laurel had no duty to warn Sanders of the dangers of the white-water rafting trip; that he failed to produce evidence that Laurel breached a duty to rescue him at the earliest opportunity; and that he failed to establish causation as to his claim that Laurel failed to adequately treat his injury.
Although the district court erred in ruling that the theory of failure to warn, other than as applied to landowners, does not arise outside of the product liability context, we affirm its decision on the grounds that, as a matter of law, the warnings given to Sanders were adequate and he assumed the risk of undertaking the white-water rafting trip.
Laurel is a corporation engaged in the business of outfitting and guiding customers who wish to raft down rivers and their rapids in the Pennsylvania area. One of the guided white-water tours is on the upper portion of the Youghiogheny River in Western Maryland. This portion of the Youghiogheny is classified, according to an industry guide, as within the most difficult of all categories of river runs, suitable for experts. Armstead, Whitewater Rafting in Eastern North America, (2d ed. 1989).
Sanders contracted with Laurel for himself and three of his friends. This trip was not the first Sanders took. On October 24, 1987, Sanders went on a rafting trip with Laurel on the lower Youghiogheny, a run classified as lower in difficulty than the upper Youghiogheny. Prior to the lower Youghiogheny trip, Sanders signed a release of liability which stated in part that he “realized I could fall out of the raft or even capsize in rough water (rapids). I realize this could result in serious injury.” (Exhibit, Joint Appendix (J.A.) 34). On July 20, 1988, Sanders made the reservation for the upper Youghiogheny trip. Sanders concedes that he received, prior to this trip, a brochure that stated, in relevant part:
1)Although we spare no effort to assure you a safe trip, it must be understood that whitewater rafting does include some danger. We can assume no responsibility for personal safety . . . . We will ask that you sign a liability form. (J.A. 44).
2.Experience is a must everyone in your group should have rafted the Cheat [a river classified as lower in difficulty than the upper Youghiogheny] several times at various water levels. (J.A. 40).
3.Upper Youghiogheny – advanced to expert level. The upper Youghiogheny . . . is the ultimate challenge in white-water rafting.
Sanders denies, and we accept for purposes of reviewing this summary judgment, that he heard the oral warnings that Laurel submits it gave about the dangers of white-water rafting in general and the upper Youghiogheny in particular. Laurel asserts that it gave such warnings at the meeting point for participants and the embarkation point at the river. There is no question, however, that Sanders signed a waiver and release card, before both the first trip and the ill-fated one. The card stated, directly above his signature and directly below information he filled out:
As a condition of acceptance, I certify that I am an able swimmer, in good health, and understand the sport of white-water rafting. I further understand the potential hazards of the sport of white-water touring and realize that I could fall out of the raft or even capsize in a raft in rough water (rapids). I realize this could possibly result in serious injury. I relieve and save harmless Laurel Highland River Tours, Inc., their Directors, Officers, Stockholders, Employees and Helpers, of any responsibility for any and all claims of any nature whatsoever . . . . (J.A. 34).
Laurel transported the customers to the drop-off point. At the drop-off point, the customers were given further instructions and outfitted with helmets and life preservers.
Early in the trip, Sanders fell out of the raft and claims he was forced to traverse approximately 100 yards of the rapids bodily. He asserts that, prior to his injury, there was an opportunity for him to be safely retrieved, but that the raft guide instructed his companions not to attempt to retrieve him until they got to calmer water. Sanders injured his knee at some point when he struck a rock and claims that he also suffered an open wound on the knee at that time. A Laurel employee rendered first aid which consisted of applying an ice cap and an elastic bandage to the injured area.
The next morning, Sanders went to an emergency room where he was treated and told to seek further care closer to home. The emergency room records indicate that he had an abrasion and a fractured knee cap. He later had surgery performed on his knee to repair the fracture. Four days later, Sanders developed a staph infection in the upper thigh.
Sanders does not claim that Laurel owed him a duty to prevent him from falling out of the raft. He does assert that Laurel breached a duty to warn him of the dangers of rafting and that Laurel failed to rescue him at the earliest opportunity. His main claim, as the district court perceived it, was that Laurel failed to render proper first aid and this was the cause of his subsequent infection.
The parties focused much of their pre-trial efforts on the purported release which Sanders signed prior to the trip. The district court, however, found it unnecessary to consider this issue.
First, the district court found that the only basis for the claim that he should have been rescued sooner was Sanders’ opinion. The district court ruled that such an opinion concerning when it was safe to get Sanders back into the raft probably required the testimony of an expert, but even if it did not, Sanders’ statements were mere “adjectival descriptions” which, under Maryland law, would be insufficient to prove negligence. (Order, J.A. 254). Sanders’ second claim for relief was that Laurel’s employee was negligent in failing to properly render first aid to him because his wound was not properly cleaned. Here the district court focused on the medical evidence concerning causation, finding that the medical evidence failed to show that the infection was caused by improper first aid.
Sanders filed a motion for reconsideration and attached a supplemental affidavit from one of his medical experts in which the expert specifically opined that the lack of first aid was the cause of the subsequent staph infection. Sanders also claimed that the district court failed to consider his “failure to warn claim.” This failure to warn claim was based on Laurel’s supposed duty to warn Sanders of the extreme danger of the particular section of river they would be traversing.
The district court in its order on reconsideration noted that a “failure to warn” theory of recovery, outside of the landowner liability context, was limited in application to product liability cases. In addition, the district court refused to give Sanders a”second bite at the apple” by supplementing the medical expert’s affidavit. To do so, the court felt, would substantially diminish the purpose and utility of summary judgment.
Sanders appeals on the grounds that: (1) he properly presented a “failure to warn claim”; (2) Laurel was strictly liable as a common carrier; (3) the district court abused its discretion in refusing to permit him to supplement the medical expert’s affidavit; (4) the district court erred in finding that the original affidavits were insufficient; and (5) the district court erred in finding that he failed to offer proof from which a reasonable jury could find Laurel negligent in failing to rescue him sooner.
Laurel argues on appeal against these assertions. It also contends that it was not liable as a matter of law because Sanders knew of the danger and voluntarily assumed the risk, because Sanders agreed, before his injury, to unconditionally release Laurel from any liability, and because Laurel adequately warned Sanders of the dangers involved.
Sanders, a citizen of Alabama, brought this suit in federal court against Laurel, a corporate citizen of Pennsylvania, on the basis of diversity. The parties agreed that the law of the locus, Maryland, applied to the action.
[HN1] Appellate review of the granting of a party’s motion for summary judgment is de novo, and the court of appeals uses the same standard as the district court. Charbonnages de France v. Smith, 597 F.2d 406 (4th Cir. 1979).
Initially, it must be noted that the district court erred in holding that a defendant can have no duty to warn outside of landowner and product liability law. See, e.g., Eisel v. Bd. of Educ. of Montgomery Co., 597 A.2d 447 (Md. 1991) (holding that the failure of a school counselor to inform parents of a student’s suicide ideation was grounds for liability of the school); B.N v. K.K., 538 A.2d 1175 (Md. 1988) (holding that the failure of a person to warn his sexual partner that he had genital herpes was grounds for liability for transmission of the disease). [HN2] A duty to warn does extend beyond product liability or landowner liability cases if a warning is called for as a result of one party’s general duty to another.
For example, the owner of a horse with a known dangerous propensity must warn a rider of that danger since that is the appropriate way for him to respond to his duty to his customer. See, e.g., Bass v. Quinn Robins Co., 216 P.2d 944 (Idaho 1950). An airline has a duty to warn a passenger of turbulence it knows is likely to occur. Brittain v. Piedmont Aviation, Inc., 120 S.E.2d 72 (N.C. 1961). An airline may have a duty to warn of conditions of flight if it knows they may affect a passenger with a particular sensitivity to those conditions. Paolone v. American Airlines, Inc., 706 F. Supp. 11 (S.D. N.Y. 1989).
In Eisel, the court discussed [HN3] the factors under which a tort duty arises; these factors are: foreseeability and certainty of harm; policy of preventing harm; closeness of connection between conduct and harm; moral blame; burden on defendant; and insurability. 597 A.2d at 452-55. A white-water outfitter who arranges and guides customers on rafting trips owes a general duty of care to its customers. The general duty may require, in some circumstances, that Laurel provide a warning to its patrons. We decline to hold, as the district court effectively does, that Laurel has no duty to warn of the danger of the rafting trip it sells to its customers.
In this case, however, the error proved harmless because the warnings given, as a matter of law, were adequate. * The district court based its opinion on the proposition that there was no duty to warn. Because the record is clear and the facts apparent, however, we need not remand for consideration. Cf. Federal Deposit Insur. Corp. v. Jones, 846 F.2d 221 (4th Cir. 1988).* The district court correctly noted that the warnings Laurel gave were adequate as a matter of law and that the general dangers of white-water rafting are apparent. However, it assumed for purposes of summary judgment that this was not the case and based its holding on other grounds.
There can be no real dispute that Laurel gave Sanders adequate warnings of the hazards of white-water rafting in general and the enhanced hazards of rafting the upper Youghiogheny in particular. Warnings need only be reasonable, they need not be the best possible warnings in the circumstances. Nolan v. Dillon, 276 A.2d 36 (Md. 1971). In this case, Laurel provided several warnings of the general risks and at least one specific warning that Sanders could fall out and be injured. A more specific or adequate warning could not be required.
Furthermore, it is uncontestable that Sanders had previously been on a white-water rafting experience and had twice signed release cards that specifically warned of the dangers of falling out, capsizing and injury. Even if Sanders neither heard nor read the many warnings given him, the general danger of white-water rafting is a risk apparent to anyone about to embark on such a trip. See Saenz v. Whitewater Voyages, Inc., 226 Cal. 3d 768, 276 Cal. Rptr. 672 (1st Dist. 1990).
Given the obviousness of the general risks involved, the warnings given of the specific risk from which Sanders was injured, and his previous rafting experience, Sanders assumed the risk of his injury. [HN4] Under Maryland law, participants assume the obvious and apparent risks of engaging in such sports. Nesbitt v. Bethesda Country Club, 314 A.2d 738 (Md. App. 1974). Clearly under Maryland law, if a plaintiff, as here, voluntarily exposes himself to a known danger of which he was warned or otherwise knows of, he has assumed the risk that danger poses. Gibson v. Beaver, 226 A.2d 273 (Md. 1967).
With regard to the claims that Laurel failed to rescue Sanders at the earliest opportunity and that it failed to render proper first aid, we have considered the briefs and the arguments of the parties and affirm on the reasoning of the district court. Sanders v. Laurel Highlands River Tours, Inc., No. CA-91-1507-S (D. Md. Nov. 15, 1991). We further find the claim that Laurel was strictly liable as a common carrier to be without merit. Accordingly, the decision of the district court is affirmed.
Keeter v. Alpine Towers International, Inc., 399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171
Lawrence Keeter, Ronald Travis Keeter, and Rebecca Keeter, Appellants/Respondents, v. Alpine Towers International, Inc., and Ashley Sexton, Defendants, Of Whom Alpine Towers International, Inc., is Respondent/Appellant.
Opinion No. 4995
399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171
December 6, 2011, Heard
June 27, 2012, Filed
SUBSEQUENT HISTORY: Rehearing denied by Keeter v. Alpine Towers Int’l, Inc., 2012 S.C. App. LEXIS 248 (S.C. Ct. App., July 31, 2012)
PRIOR HISTORY: [***1]
Appeal From York County. Appellate Case No. 2009-137246. John C. Hayes, III, Circuit Court Judge.
DISPOSITION: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
COUNSEL: Richard A. Harpootlian and Graham L. Newman, both of Richard A. Harpootlian, P.A., of Columbia, for Appellants/Respondents.
Charles E. Carpenter, Jr., and Carmon V. Ganjehsani, of Carpenter Appeals & Trial Support, LLC, of Columbia, and Thomas C. Salane, of Turner, Padget, Graham & Laney, P.A., of Columbia, for Respondent/Appellant.
JUDGES: FEW, C.J. KONDUROS, J., concurs. THOMAS, J., concurring in a separate opinion.
OPINION BY: FEW
[*184] [**893] FEW, C.J.: Lawrence “Larry” Keeter and his parents brought this action against Alpine Towers International, Inc., for strict liability, negligent design, and negligent training after Larry broke his back and became a paraplegic as a result of a fall to the ground from a climbing tower designed, manufactured, and installed by Alpine Towers. The jury awarded actual and punitive damages in favor of Larry and actual damages in favor of his parents for Larry’s medical bills. After both sides filed post-trial motions, the trial court entered separate judgments in favor of Larry and his parents. Alpine Towers appeals the trial court’s decision [***2] to deny its motions for directed verdict and judgment notwithstanding the verdict (JNOV) as to actual and punitive damages, and its motion for a new trial due to an alleged error as to apportionment. Larry appeals the trial court’s ruling requiring him to elect between his three causes of action. We affirm the denial of Alpine Towers’ motions. However, we hold the trial court incorrectly interpreted the jury’s verdict and erred in requiring [*185] Larry to elect. We remand to the trial court with instructions to enter judgment in Larry’s favor against Alpine Towers in the amount of $3,400,500.00 actual damages and $1,110,000.00 punitive damages. 1
1 The judgment in favor of Larry’s parents is not affected by this appeal.
On May 5, 2006, the senior students at Fort Mill High School (Fort Mill) participated in a spring fling recreational field day. During field day, Larry fell more than twenty feet from the climbing tower to the ground. When he hit the ground, Larry broke a vertebra and was rendered a permanent paraplegic. He was seventeen.
Alpine Towers originally sold the climbing tower to Carowinds amusement park near Charlotte, North Carolina. Fort Mill bought the tower from Carowinds [***3] in July 2004 and hired Alpine Towers to move it, install it, and train Fort Mill’s faculty to safely use it. Fort Mill’s contract with Alpine Towers identifies Alpine Towers as “seller” and provides: “Installation includes all hardware, materials, . . . labor, . . . design work, . . . and staff training.” The wooden climbing tower is fifty feet tall, has three sides, and is shaped liked an hourglass. The central safety feature of any climbing tower is the belay system. 2 Alpine Towers designed the belay system on this climbing tower to include four participants–the climber, a primary belayer, a back-up belayer, and a faculty supervisor. The system requires the climber to wear a harness, which is secured to a climbing rope. The rope passes through a pulley at the top of the tower and down to a belay device secured to the ground at the base of the tower. The rope is threaded through the belay device, which uses bends in the rope to create friction to control the speed at which the rope passes through the device. As the [**894] climber ascends, the belayer guides the rope through the belay device to keep the rope taut. If the climber falls from the tower while climbing, [*186] the belayer uses the friction [***4] the belay device creates on the rope to keep the rope from passing back through the device, and thus protects the climber from falling all the way to the ground.
2 Alpine Towers’ instruction manual defines “belay” as “the rope or technique . . . that is used to protect a climber from falling to the ground.” See also Merriam-Webster Collegiate Dictionary 111 (11th ed. 2004) (defining belay as “the securing of a person or a safety rope to an anchor point (as during mountain climbing)”).
After a successful climb, or in the event the climber falls before completing the climb, the belayer lowers the climber to the ground in a controlled fashion by guiding the rope back through the belay device. The friction created on the rope allows the belayer to control the speed of the climber’s descent. 3 Because of the hourglass shape of the tower, a climber being lowered to the ground by the belayer is suspended in air, away from the side of the tower.
3 Alpine Towers’ CEO explained that “not very much” strength is required to hold a climber in the air because the weight is transferred through the belay device to the rope attached to the ground, so that a lightweight belayer can easily lower even a heavy [***5] climber.
Ashley Sexton, a senior at Fort Mill, served as Larry’s primary belayer. Fort Mill trained Ashley to belay as a part of the Junior ROTC program. Larry had never been trained in belaying or climbing, but successfully climbed to the top of the tower. Ashley testified that while she was lowering Larry to the ground “the rope . . . got tight in the [belay device] almost as if it were stuck” and would not move. Neither Ashley nor anyone at Fort Mill had been taught what to do if the rope became stuck in the belay device. When Ashley tried to free the rope, she lost the assistance of the device, was unable to control the rope, and Larry fell more than twenty feet to the ground.
Alpine Towers designed the belay system on the climbing tower and trained Fort Mill’s faculty how to use it. Alpine Towers provided no notice or warning to Fort Mill’s faculty that the climbing rope could get stuck in the belay device it designed into the system. Alpine Towers also provided no training or instruction on how the belayer or faculty supervisor should handle the situation if it did. Alpine Towers chose not to incorporate into the design a readily available, automatically locking belay device [***6] Larry’s experts testified would have stopped Larry’s fall. Alpine Towers did not train Fort Mill’s faculty to require the faculty supervisor to stand directly beside the belayer, which Alpine Towers admitted at trial [*187] should always be done to ensure that proper procedures were followed in the climb and to assist the belayers in the event of a situation like the one that resulted in Larry’s fall. When Larry fell, no back-up belayer was present, and no faculty supervisor was close enough to assist Ashley.
II. Procedural History
All of Larry’s damages were caused by the broken back he suffered as a result of his fall. Larry asserted three causes of action presenting three alternative theories of Alpine Towers’ liability for those damages: (1) Alpine Towers was strictly liable for the manufacture and sale of a defective and unreasonably dangerous product; (2) Alpine Towers negligently designed the climbing tower without adequate safety equipment, instructions, and warnings; 4 and (3) Alpine Towers was negligent in failing to properly train Fort Mill’s faculty on how to safely use the climbing tower, particularly in failing to train the faculty to teach student belayers to safely use the belay [***7] system.
4 Because Alpine Towers did the “design work” for the installation of the tower at Fort Mill, Larry’s negligent design theory includes allegations of negligence in failing to design the tower to meet the specific safety needs of Fort Mill.
Larry also filed suit against Ashley for negligence. Larry’s parents filed suit against Alpine Towers and Ashley for Larry’s medical bills. Larry and his parents settled with Fort Mill before filing suit and dismissed Ashley as a defendant before trial. The jury returned a verdict for Larry on each cause of action. It awarded $500.00 for strict liability, 5 $900,000.00 in actual damages and $160,000.00 in punitive damages for negligent design of the tower, and $2,500,000.00 in actual damages and $950,000.00 in punitive [**895] damages for Alpine Tower’s negligence in training Fort Mill’s faculty. The jury also returned a verdict for Larry’s parents for $240,000.00 in actual damages.
5 The jury originally returned a verdict on the strict liability cause of action in favor of Larry, but with zero damages. After the trial court instructed the jury that it must either award damages to Larry or find in favor of Alpine Towers, it returned a $500.00 award.
[*188] Alpine [***8] Towers filed a post-trial motion seeking (1) judgment notwithstanding the verdict as to all causes of action and punitive damages, (2) a new trial, (3) an order requiring Larry to elect between the three causes of action, (4) set-off of the settlement paid by Fort Mill, and (5) apportionment under the Contribution Among Joint Tortfeasors Act. The trial court denied the JNOV, new trial, and apportionment motions. The court required Larry to elect between his causes of action and ordered that the settlement from Fort Mill be set-off against Larry’s recovery from Alpine Towers. Larry also filed a post-trial motion asking the trial court to enter judgment in the cumulative amount of the damage awards rather than require him to elect. The court denied Larry’s motion and ordered that judgment be entered in the amount of $2,500,000.00 in actual damages and $950,000.00 in punitive damages on the negligent training cause of action.
III. Alpine Towers’ Appeal
A. Directed Verdict and JNOV–Actual Damages
[HN1] “In ruling on motions for directed verdict and JNOV, the trial court is required to view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the [***9] party opposing the motions.” McMillan v. Oconee Mem’l Hosp., Inc., 367 S.C. 559, 564, 626 S.E.2d 884, 886 (2006). “When we review a trial judge’s . . . denial of a motion for directed verdict or JNOV, we reverse only when there is no evidence to support the ruling or when the ruling is governed by an error of law.” Austin v. Stokes-Craven Holding Corp., 387 S.C. 22, 42, 691 S.E.2d 135, 145 (2010).
In its motions for directed verdict and JNOV, Alpine Towers contested all liability issues, including the sufficiency of the evidence supporting each of Larry’s causes of action. In its Statement of Issues on Appeal, Alpine Towers contends only that the trial court should have granted its motions because the chain of causation was broken as a matter of law. Specifically, Alpine Towers contends the chain of causation was broken by (1) “the intervening and superseding negligent [*189] acts of Fort Mill High School and Ashley Sexton in failing to follow the warnings, directions, and instructions for proper use of the Tower” and (2) “the intervening and superseding negligent acts of Fort Mill High School in failing to undertake its independent duty to properly supervise its students.” However, because [***10] both Larry and Alpine Towers address in their briefs the sufficiency of the evidence supporting each of Larry’s causes of action, we do as well. We find ample evidence to support the jury’s verdict as to each. We also find ample evidence that Ashley’s negligence and any negligence by Fort Mill was foreseeable to Alpine Towers, and thus their negligence does not break the chain of causation from Alpine Towers’ tortious conduct.
1. Strict Liability
In his strict liability theory, Larry focused on Alpine Towers’ design of the climbing tower to incorporate a belay device called Trango Jaws. The Trango Jaws is operated manually and requires the belayer to properly position the climbing rope in the Trango Jaws to create the friction necessary to stop the rope and then control the rate of the climber’s descent. Larry’s expert witness in biomechanics and sports safety, Gerald George, Ph.D., testified that the Trango Jaws relies on the absence of human error to safely belay a climber. He explained that it was feasible to use an alternative design for the climbing tower incorporating a belay device called a GriGri. 6
6 The GriGri costs approximately $75, and the Trango Jaws costs approximately $24. [***11] The CEO of Alpine Towers testified the difference in cost is an “inconsequential amount of money.”
The GriGri is a mechanical device that, when properly threaded, does not rely on the absence of human error. In the event the belayer loses control of the rope, the GriGri automatically stops the rope, and thus protects the climber from falling to the ground. Larry’s climbing wall safety expert, Dan Hague, testified that the GriGri “locks up automatically, . . . you’re not relying on the actions of the belayer to lock the device up.” [**896] He emphasized that the automatic stopping feature of the GriGri is particularly important when students are belaying climbers because of the heightened likelihood of human error. To account for this foreseeable risk, Hague “always uses the GriGri with kids.” In Hague’s opinion, “this injury would not have occurred had a GriGri [*190] been in use that day.” As a normal part of its business, Alpine Towers sells the GriGri for a variety of uses, including on its own climbing towers. Dr. George testified that without incorporating a “fail-safe” belay device such as the GriGri into the design of a climbing tower used for students, the climbing tower is defective and unreasonably [***12] dangerous.
Alpine Towers’ argument that the evidence in support of Larry’s strict liability cause of action is insufficient is that there is no evidence the tower “was in a defective condition, unreasonably dangerous to the user . . . when it left the hands of the defendant.” See Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 539, 462 S.E.2d 321, 326 (Ct. App. 1995). However, the evidence discussed above amply supports the jury’s finding that it was. Moreover, the GriGri qualifies as a “reasonable alternative design” as required under Branham v. Ford Motor Co., 390 S.C. 203, 225, 701 S.E.2d 5, 16 (2010). The trial court correctly denied Alpine Towers’ directed verdict and JNOV motions as to strict liability.
2. Negligent Design
[HN2] “A negligence theory imposes the additional burden on a plaintiff ‘of demonstrating the defendant . . . failed to exercise due care in some respect, and, unlike strict liability, the focus is on the conduct of the seller or manufacturer, and liability is determined according to fault.’” Branham, 390 S.C. at 210, 701 S.E.2d at 9 (quoting Bragg, 319 S.C. at 539, 462 S.E.2d at 326). In his negligent design theory, Larry also relied on the evidence that Alpine Towers should [***13] have used the GriGri in designing a climbing tower to be used by students, particularly student belayers. However, in addition to evidence that the tower was defective and unreasonably dangerous without the GriGri, Larry presented evidence that Alpine Towers failed to exercise reasonable care in the design. Specifically, Larry presented evidence that Alpine Towers conducted a ten-year study ending in 1999 that concluded the majority of accidents on its climbing towers were caused by human error, specifically belayers dropping their climbers. Despite this knowledge, Alpine Towers chose not to design for human error by including a belay device that would automatically lock and prevent the rope from passing back through the [*191] device, thus preventing a fall to the ground such as the one Larry suffered.
Moreover, Larry’s experts testified to several breaches of Alpine Towers’ duty of reasonable care in designing the warnings and instructions on the tower. In particular, Larry’s experts testified faculty supervisors should be instructed to remain within reaching distance of active belay ropes. Alpine Towers’ employee John Mordhurst conceded this instruction was necessary. Mordhurst testified [***14] a faculty supervisor should be at each belay point, and “[t]hey should be . . . in a position to intervene to grab a rope, . . . so they should be right next to the belayers and belay monitors.” In the 1997 edition of Alpine Towers’ instruction manual for the climbing tower, the section entitled “The Belay System” includes this requirement: “[P]rograms should require staff to check the belayer’s and climber’s systems prior to climbing and lowering; . . . the staff member should stand directly beside the climber.” However, Alpine Towers omitted the statement containing this requirement from the 2004 edition of the instruction manual, the edition it provided to Fort Mill.
Additionally, Dr. George testified Alpine Towers should have placed end user warnings on the tower for someone like Larry, who climbed for the first time without any instruction, and Ashley, who never received an instruction manual. Dr. George explained this was necessary to ensure an inexperienced climber such as Larry will know the dangers of climbing and understand how the belay system is designed to work before deciding to begin a climb. This evidence amply supports the jury’s finding that Alpine Towers failed to [***15] exercise reasonable care in designing a defective and unreasonably dangerous climbing tower. Therefore, the trial court was correct to deny Alpine Towers’ motions as to negligent design.
[**897] 3. Negligent Training
In his negligent training theory, Larry presented evidence that despite knowing Fort Mill’s faculty would not be doing most of the belaying, but rather would be teaching students to belay, Alpine Towers did not instruct the faculty how to teach belaying. Larry proved several key facts in support of this claim. First, Alpine Towers uses a written [*192] syllabus when it conducts classes to teach adults how to belay. However, it did not provide the syllabus to Fort Mill to enable Fort Mill to effectively teach students. Second, the belay system designed by Alpine Towers relies on a faculty supervisor to ensure the students are properly belaying the climbers. In addition to Mordhurst’s testimony as to where the faculty supervisor should be positioned, the CEO of Alpine Towers, Joe Lackey, testified, “the staff member should stand directly behind the climber, . . . not thirty feet away.” The obvious purpose of this requirement is to enable the supervisor to keep the students from making errors [***16] and, if they do, to prevent the tragic consequences Larry suffered. However, Larry presented evidence that Alpine Towers did not teach this to the faculty at Fort Mill. One member of Fort Mill’s faculty who attended the Alpine Towers course testified he did not recall being told that a faculty supervisor should stand beside the belayer. When asked why the requirement that “the staff member should stand directly beside the climber” in the 1997 instruction manual was not included in the 2004 edition, Lackey responded, “I’m not sure why it was taken out.”
Moreover, despite knowing that Fort Mill would be teaching students to belay and that students were more susceptible to making belaying errors than adults, Alpine Towers did not teach Fort Mill that it should test the students’ competency before allowing them to belay a climber. Hague testified “as a matter of course in my industry, participants are tested,” including whether they are “able to . . . belay in a competent manner, catch falls, lower somebody . . . off a climb.” He explained:
In a climbing setting you have to be able to assess whether or not the group as a whole is making progress. . . . Since we’re talking about life safety [***17] here and not about math, if someone is not learning at the same rate as the group, you can’t just move to the next topic. You have to slow down. You have to be able to address that one person until everybody’s caught up. In addition, at the end of the training, there needs to be some type of discrete competency test.
Alpine Towers has several employees who serve on the standards committee for the Association for Challenge [*193] Courses Technology, which Lackey called a “climbing society.” Despite evidence of this standard climbing industry practice, Alpine Towers did not teach Fort Mill that it needed to test, how the tests should be conducted, or what particular skills should be tested. 7
7 Ashley testified she was not given a written test, but was required to do a “demonstration” and be watched by a faculty member to make sure she “knew how to do it.” There was no evidence, however, that Alpine Towers took any steps to ensure Fort Mill gave an adequate test of her competency. In fact, Alpine Towers’ instruction manual says only that students “will demonstrate proficiency in belaying before being permitted to belay.”
This evidence provides ample support for the jury’s finding that Alpine Towers [***18] was negligent in failing to properly train the Fort Mill faculty on how to safely use the tower, and thus the trial court properly denied Alpine Towers’ motions as to negligent training.
We affirm the trial court’s decision to deny Alpine Towers’ motions for directed verdict and JNOV as to the sufficiency of the evidence supporting all three of Larry’s causes of action.
4. Intervening Causation
[HN3] The test for whether a subsequent negligent act by a third party breaks the chain of causation to insulate a prior tortfeasor from liability is whether the subsequent actor’s negligence was reasonably foreseeable. “For an intervening act to break the causal link and insulate the tortfeasor from further liability, the intervening act must be unforeseeable.” McKnight v. S.C. Dep’t of Corr., 385 S.C. 380, 387, 684 S.E.2d 566, 569 [**898] (Ct. App. 2009) (internal quotation marks omitted). The trial court properly charged the jury as follows:
The chain of causation between a defendant’s negligence and the injury itself may be broken by the independent intervening acts or omissions of another person over whom the defendant had no control. In order to decide whether an intervening act breaks the chain of causation, [***19] you must determine whether the intervening act or omission was reasonably foreseeable by the defendant. If the intervening act or omission was a probable consequence of the defendant’s negligence, the defendant is responsible for the plaintiff’s [*194] injuries. If, however, you find that the intervening act or omission was not foreseeable, the defendant is not liable.
By finding in favor of Larry, the jury necessarily found the actions of Ashley and Fort Mill were foreseeable, and therefore the chain of causation was not broken to insulate Alpine Towers from liability. There is ample evidence to support this finding. See Cody P. v. Bank of Am., N.A., 395 S.C. 611, 621-22, 720 S.E.2d 473, 479 (Ct. App. 2011) (“Only in rare or exceptional cases may the question of proximate cause be decided as a matter of law. . . . If there may be a fair difference of opinion regarding whose act proximately caused the injury, then the question of proximate cause must be submitted to the jury.” (internal quotation marks and citations omitted)).
Larry presented evidence that Alpine Towers knew Fort Mill would be using high school students to belay climbers, that adolescents are more susceptible to belaying errors [***20] than adults, and that Alpine Towers conducted a study concluding human error is the most common cause of falls to the ground from climbing towers. Dr. George testified Alpine Towers “knew or should have known . . . of these risks.” He stated it was not merely foreseeable, but “almost predictable,” that high school students would not follow proper procedures for belaying climbers. Hague testified that he has trained “thousands and thousands” of people in belaying over fifteen years, including “many hundreds” of adolescents, he takes different approaches to training depending on the maturity level of the belaying student, adolescents “routinely do not” follow procedures, and Alpine Towers “could easily foresee that adolescents aren’t going to follow all the procedures.”
Therefore, the primary risk associated with the use of a climbing tower is that the belayer, back-up, or faculty supervisor might make an error belaying the climber. Each of Larry’s theories of recovery focused on the allegation that Alpine Towers failed to design for and train against human error in belaying and the supervision of students belaying. This is not a “rare or exceptional” case in which the issue of proximate [***21] cause may be decided as a matter of law. Alpine Towers’ argument that “the intervening and superseding negligent acts of Fort Mill High School and Ashley Sexton” broke the chain of causation fails because there is ample evidence in [*195] the record that precisely the same human error that resulted in Larry’s injury was not only foreseeable to Alpine Towers, but was actually foreseen. Accordingly, we find the trial court properly submitted the question of proximate cause to the jury, and we affirm its decision to deny Alpine Towers’ motions for directed verdict and JNOV as to intervening causation.
B. Directed Verdict and JNOV–Punitive Damages
Alpine Towers also argues the trial court erred in denying its directed verdict and JNOV motions as to punitive damages. We disagree.
[HN4] “When ruling on a directed verdict motion as to punitive damages, the circuit court must view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party.” Hollis v. Stonington Dev., LLC, 394 S.C. 383, 393-94, 714 S.E.2d 904, 909 (Ct. App. 2011) (internal quotation marks omitted). This court applies the same standard as the circuit court. 394 S.C. at 394, 714 S.E.2d at 910. [***22] “The issue of punitive damages must be submitted to the jury if more than one reasonable inference can be drawn from the evidence as to whether the defendant’s behavior was reckless . . . .” Mishoe v. QHG of Lake City, Inc., 366 S.C. 195, 201, 621 S.E.2d 363, 366 (Ct. App. 2005). “Recklessness implies the doing of a negligent [**899] act knowingly; it is a conscious failure to exercise due care. If a person of ordinary reason and prudence would have been conscious of the probability of resulting injury, the law says the person is reckless . . . .” Berberich v. Jack, 392 S.C. 278, 287, 709 S.E.2d 607, 612 (2011) (internal citation and quotation marks omitted).
Larry made two separate claims for punitive damages against Alpine Towers: (1) for reckless behavior in its design of the climbing tower and (2) for reckless behavior in its failure to properly train the Fort Mill faculty on how to safely use the climbing tower. The jury awarded punitive damages on each claim, so we address each independently.
As to Larry’s claim for punitive damages based on Alpine Towers’ reckless behavior in designing the tower, Larry presented evidence that Alpine Towers knew the majority [*196] of accidents occurring on its [***23] climbing towers were caused by human error by belayers and back-up belayers. Mordhurst conceded that of the three options for a belay device in the design of a climbing tower, “the GriGri has [the] highest likelihood of arresting the fall” of a climber and thus protecting him from falling to the ground if the belayer loses control of the rope. Lackey testified the additional cost of a GriGri is “inconsequential.” Alpine Towers’ decision to design its climbing tower to incorporate the Trango Jaws instead of the GriGri under these circumstances is sufficient evidence Alpine Towers was “conscious of the probability of resulting injury” from its negligence, and therefore was reckless. The trial court was correct to submit the issue of punitive damages for reckless design to the jury. 392 S.C. at 287, 709 S.E.2d at 612.
As to Larry’s claim for punitive damages based on Alpine Towers’ reckless behavior in failing to properly train the Fort Mill faculty, in addition to the evidence discussed above, Alpine Towers knew Fort Mill would be using student belayers, whom Alpine Towers knew to be less attentive to following procedures and more susceptible to errors in belaying than adults. Nevertheless, [***24] Alpine Towers (1) chose not to train Fort Mill’s faculty to teach others, particularly students; (2) did not include in the training materials given to Fort Mill the syllabus Alpine Towers uses to teach belaying; (3) removed from its training manual the specific instruction for faculty supervisors to “stand directly behind the climber”; (4) did not teach Fort Mill to follow the industry practice of testing belayers on the basic skills of belaying before allowing them to belay climbers; and (5) did not inform Fort Mill it had the option of an automatically locking belay device such as the GriGri to compensate for the greater risk posed by the use of student belayers. This also is sufficient evidence Alpine Towers was “conscious of the probability of resulting injury” from its negligence, and therefore was reckless. The trial court was correct to submit the issue of punitive damages for reckless training to the jury. Id.
Accordingly, we affirm the trial court’s decision to deny Alpine Towers’ directed verdict and JNOV motions as to punitive damages.
[*197] C. Apportionment of Fort Mill’s Fault
Alpine Towers contends it is entitled to a new trial because the trial court did not allow the jury to [***25] consider the fault of Fort Mill when it apportioned fault under section 15-38-15 of the South Carolina Code (Supp. 2011). 8 However, our ruling affirming the jury’s award of punitive damages makes it unnecessary to address this issue as [HN5] the apportionment statute “does not apply to a defendant whose conduct is determined to be . . . reckless.” § 15-38-15(F).
8 After the jury’s verdict as to liability, the trial court required it to apportion fault between Alpine Towers and Ashley. The jury determined that Ashley was 60% at fault and Alpine Towers was 40% at fault. The jury was not asked to consider the fault of Fort Mill.
IV. Larry’s Appeal
Larry appeals the trial court’s post-trial ruling entering judgment in his favor in the amount of $2,500,000.00 in actual damages and $950,000.00 in punitive damages. He contends the trial court erred in interpreting the verdicts as “three awards” and requiring him to elect which cause of action would be his remedy. We agree.
[HN6] “Election of remedies involves a choice between different forms of redress [**900] afforded by law for the same injury . . . . It is the act of choosing between inconsistent remedies allowed by law on the same set of facts.” Taylor v. Medenica, 324 S.C. 200, 218, 479 S.E.2d 35, 44-45 (1996). [***26] Larry asserted three causes of action, but sought only one remedy–damages–for only one injury–a broken back. When a plaintiff seeks only one remedy, there is nothing to elect. See Adams v. Grant, 292 S.C. 581, 586, 358 S.E.2d 142, 144 (Ct. App. 1986) (“Where a plaintiff presents two causes of action because he is uncertain of which he will be able to prove, but seeks a single recovery, he will not be required to elect.”).
The trial court in this case recognized that Larry’s three causes of action sought only one remedy. In its post-trial order, the court wrote:
Here, both products liability claims and the negligence claim represent three theories for recovery for the same injury and damages–personal injuries sustained by [Larry] in his [*198] fall. [Larry] had one fall and all his injury and damages flow therefrom regardless of the number of acts of omission or commission of [Alpine Towers].
Because Larry sought only one remedy, the doctrine of election of remedies does not apply. [HN7] “As its name states, the doctrine applies to the election of ‘remedies’ not the election of ‘verdicts.’” Austin, 387 S.C. at 57, 691 S.E.2d at 153 (defining a “‘remedy’ as ‘[t]he means by which . . . the violation [***27] of a right is . . . compensated.’” (quoting Black’s Law Dictionary 1163 (5th ed. 1979))).
This court addressed a similar situation in Creach v. Sara Lee Corp., 331 S.C. 461, 502 S.E.2d 923 (Ct. App. 1998). The plaintiff in Creach “bit down on a hard substance in a steak biscuit made by Sara Lee Corporation,” “experience[d] severe pain,” and had to undergo “extensive dental work.” 331 S.C. at 463, 502 S.E.2d at 923-24. She sued Sara Lee and others “alleging negligence, breach of warranty, and strict liability.” 331 S.C. at 463, 502 S.E.2d at 923. After a verdict for Creach on all three causes of action, Sara Lee asked the trial judge to require her to elect her remedy. The judge refused to do so, and this court affirmed, holding “while the complaint stated three different causes of action, only one recovery was sought and only one recovery was awarded. Under these circumstances, no election was required.” 331 S.C. at 464, 502 S.E.2d at 924 (citing Taylor, 324 S.C. at 218, 479 S.E.2d at 44-45). Creach supports our holding that because Larry sought one remedy for one injury, the trial court erred in requiring him to elect.
Nevertheless, the trial court and this court must ensure that Larry [***28] does not receive a double recovery. See Collins Music Co. v. Smith, 332 S.C. 145, 147, 503 S.E.2d 481, 482 (Ct. App. 1998) ( [HN8] “It is well settled in this state that there can be no double recovery for a single wrong and a plaintiff may recover his actual damages only once.” (internal quotation marks omitted)). The determination of whether a verdict grants a double recovery begins with the trial court’s responsibility to interpret the verdict in order to ascertain the jury’s intent. The trial court interpreted the jury’s verdict in this case to be “three awards,” and therefore “inconsistent” because [*199] it allowed Larry a double recovery. We find the trial court erred in its interpretation of the verdict.
The error arose from the verdict form. Because Larry asserted three causes of action, the trial court correctly fashioned the verdict form to require the jury to write its verdict for each cause of action. However, because Larry sought only one remedy–damages–and because the amount of those damages could not vary from one cause of action to another, the trial court should have required the jury to write one amount for Larry’s actual damages, and should not have permitted the jury to write [***29] a damages amount for each of the three causes of action. The use of the three blanks for damages in the verdict form left the verdict ambiguous as to the amount of damages the jury intended to award.
[HN9] To determine the jury’s intent in an ambiguous verdict, the court should consider the entire proceedings, focusing on the events and circumstances that reasonably indicate what the jury intended. See Durst v. S. Ry. Co., 161 S.C. 498, 506, 159 S.E. 844, 848 (1931) (stating “the construction of a verdict should, and can, depend upon, not only the language used by the jury, but other things occurring in the trial may be, and [**901] should be, properly regarded in determining what a jury intended to find”); Howard v. Kirton, 144 S.C. 89, 101, 142 S.E. 39, 43 (1928) (stating it is “the duty of the trial judge to decide what the verdict meant, and, in reaching his conclusion thereabout, it was his duty to take into consideration not only the language of the verdict, but all the matters that occurred in the course of the trial”); see also 75B Am. Jur. 2d Trial § 1545 (2007) (“In the interpretation of an ambiguous verdict, the court may make use of anything in the proceedings that serves to show with [***30] certainty what the jury intended, and, for this purpose, reference may be had, for example, to the pleadings, the evidence, the admissions of the parties, the instructions, or the forms of verdict submitted.”).
To correctly interpret the verdict in this case, the trial court was required to consider several indications of the jury’s intention as to damages. First, the court should have considered its own conclusion that Larry sought only one remedy–damages–and that all of his damages flowed from the broken back resulting from his fall from the tower. Thus, it was not [*200] possible for the damages to vary from one cause of action to another. Second, after the jury returned the verdicts, Larry made a motion asking the court to inquire of the jury whether it meant for the damages awarded to be cumulative. Alpine Towers did not object to the request. While the jury was still in the courtroom, the judge asked the forelady if the jury intended the verdicts to be cumulative.
The Court: . . . Before you leave, I’ve got one last question. On the three causes of action you have awarded different amounts of damages. . . . Was it the jury’s intention to award those cumulatively, that is they add up to [***31] [$3.4 million and $500.00] . . . or did you simply mean that the damages as to each cause of action were to be separate . . . .
Forelady: Ask me that again.
. . .
The Court: . . . You have ordered [$500.00] on one, [$900,000.00] on one, and [$2.5 million] on one. Is it the jury’s intention that those are to be added, that is cumulative, or is the jury’s intention that as to each cause of action that award applies only to that cause of action?
Forelady: It’s cumulative.
The Court: Okay. How about . . . as to the punitive, you had [$160,000.00] and [$950,000.00], which adds up . . . to [$1.1 million] [sic]. Is it the same for that also?
Forelady: It’s cumulative.
The trial court then asked each side separately if there was “anything else before the jury’s dismissed?” Both Larry and Alpine Towers answered that they had nothing further, and the trial court dismissed the jury. 9
9 The trial court found, and Alpine Towers argues on appeal, that Larry should have sought further inquiry into the jury’s intent and that his failure to do so forecloses his argument that the jury intended the verdicts to be cumulative. We disagree. Larry is the party who initially asked the court to inquire whether the [***32] jury intended the verdict to be cumulative. Larry’s counsel stated to the court “you can either inquire of the jury here in the courtroom or you can send them out, whatever you’re comfortable with.” Alpine Towers’ counsel stated, “I wouldn’t oppose that request.” The trial court then made the decision to ask only the forelady. The forelady’s answer, “It’s cumulative,” was the answer Larry was looking for, and therefore Larry had no reason to inquire further on that subject. Alpine Towers, who at that point did have reason to inquire further, said nothing. Therefore, to the extent the lack of further inquiry should be considered, we believe it should be held against Alpine Towers.
[*201] In the context that Larry sought, and could obtain, only one damages award for the same injury, this dialogue adequately demonstrates the jury intended the damage amounts written in the three blanks on the verdict form to be added together for a total award to Larry of $3,400,500.00 actual damages and $1,110,000.00 punitive damages. However, there was more to indicate this was the jury’s intention. During deliberations the jury sent a note to the court stating the jurors were deadlocked as to whether to award [***33] $4.5 million or $5 million and asking for suggestions. The court responded that it had no suggestions. The total amount of damages awarded, including the amount awarded to Larry’s parents, was $4.75 million, 10 which is between the two amounts [**902] listed in the note. Further, the court should have considered that it gave the jury no basis on which to find different damage awards on different causes of action. In fact, the only place in the damages instruction where the court differentiated between the causes of action at all was to explain to the jury it may award punitive damages only on the negligence theories of recovery.
10 At the point of the trial when the jury sent this note, the court had not instructed the jury it must award damages on the strict liability claim or find for the defendant. Thus, the $500.00 damages awarded on that cause of action is not included in this figure.
This court has stated that [HN10] “it is the duty of the court to sustain verdicts when a logical reason for reconciling them can be found.” Daves v. Cleary, 355 S.C. 216, 231, 584 S.E.2d 423, 430 (Ct. App. 2003). In fulfilling this duty, we may not substitute our judgment for that of the jury. See Lorick, 153 S.C. at 319, 150 S.E. at 792 [***34] (stating the court has a right to give “effect to what the jury unmistakably found” but cannot “invade the province of the jury”). The jury’s verdict in this case is readily reconciled as we have explained. We can discern no other way to interpret the verdict consistent with the applicable law and the facts of this case, nor can we find in the record any reason to believe this interpretation does not reflect the intent of the jury. Moreover, during arguments on post-trial motions, counsel for Alpine Towers explained to the trial court what he believed the jury did:
[*202] Let me tell you what I think happened. . . . [When they sent the note asking for suggestions,] they advised that they had arrived at a general block of the amount of the damages that they wanted to give to compensate Mr. Keeter. What they then did because the verdict form is listed in such a way that it says actual damages and punitive damages leaving both blank that they went through and parceled out the total amount of compensatory damages that they wanted to award . . . . And the damages for all three claims are identical . . . , there is no differentiation on the damages . . . . [T]hey arrived at a larger figure then [***35] they parceled it up to fill in the blanks. 11
Interpreting the verdict based on “all the matters that occurred in the course of the trial,” Howard, 144 S.C. at 101, 142 S.E. at 43, we disagree with the trial court and find the jury did not make an “inconsistent damages award.” See 75B Am. Jur. 2d Trial § 1556 (2007) (“In order for a verdict to be deemed inconsistent, there must be inconsistencies within each independent action rather than between verdicts in separate and distinct actions.”). Rather, we find that the jury intended the amounts to be added together for a total verdict in Larry’s favor of $3,400,500.00 actual damages and $1,110,000.00 punitive damages. Accordingly, we hold the trial court erred in its interpretation of the verdicts and judgment should have been entered in the cumulative amount of actual and punitive damages the jury wrote on the verdict form for each of Larry’s causes of action.
11 In fairness to counsel, the statement was made as part of his argument that the verdicts were inconsistent. However, we believe the statement accurately explains why the jury put different damage amounts in different blanks.
For the reasons explained above, we affirm [***36] the trial court’s decision to deny Alpine Towers’ motions for directed verdict, JNOV, and for a new trial. We reverse the trial court’s interpretation of the jury verdict and remand with instructions that judgment be entered against Alpine Towers in favor of Larry Keeter in the amount of $3,400,500.00 actual damages and $1,110,000.00 punitive damages.
[*203] AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
KONDUROS, J., concurs.
CONCUR BY: THOMAS
THOMAS, J., concurring in a separate opinion.
THOMAS, J.: I concur with the majority as to Alpine Towers’ appeal. As to Larry’s appeal, I concur in result. I agree that this case does not involve the need to elect remedies or an inconsistent verdict. I write separately to clarify that questioning the entire jury and then conforming the jury’s verdict to the jury’s intent are the best practices for ensuring a valid verdict.
[**903] First, when a party raises a question about the jury’s intent for the verdict, the best practice is to poll all of the jurors or allow the foreperson to answer the court’s questions after consulting with the entire jury. Lorick & Lowrance, Inc. v. Julius H. Walker Co., 153 S.C. 309, 314-15, 150 S.E. 789, 791 (1929). The need to clarify the jury’s [***37] intent almost invariably arises when the language used on the verdict form is problematic. Without an inquiry of the remaining jurors, questioning only the foreperson unnecessarily risks that the jury’s precise intent will remain unknown. This danger is heightened by the likelihood of arguments that the foreperson misunderstood the court’s questions or provided a response not reflecting the entire jury’s intent.
Second, if the initial inquiry shows the jury’s intent differs from what the jury wrote on the verdict form, the best practice is to either send the jury back to conform the verdict to the jury’s intent or have the correction made in open court with the jury’s consent. Id. at 314-15, 150 S.E. at 791. After the jury is discharged, the court may construe the verdict in a manner that diverges from the language used by the jury only when the surrounding circumstances make the jury’s intent unmistakable and the court’s construction reflects that intent. Id. at 319-20, 150 S.E. at 792-93.
I disagree with the majority’s statement in footnote 9 that Larry had no reason to seek further inquiry of the jury’s intent after the foreperson testified the actual and punitive damages amounts [***38] were cumulative. The movant has the most [*204] incentive to ask the court to send the jury back to conform the verdict to the jury’s intent or have the correction made in open court with the jury’s consent. These practices best ensure the verdict reflects the jury’s intent, and a verdict rendered in accordance with them is nearly impossible to attack by arguing the jury’s intent is unclear. See Billups v. Leliuga, 303 S.C. 36, 39, 398 S.E.2d 75, 76 (Ct. App. 1990) (stating “a jury verdict should be upheld when it is possible to do so and carry into effect the jury’s clear intention,” and holding the jury’s intent was clear despite “some confusion in the jury’s initial written verdict” because the foreperson testified as to the jury’s intent, the clerk published the jury’s intent after the foreperson put the intent in writing, and the remaining jurors were polled to ensure their intent complied with the published intent); cf. Joiner v. Bevier, 155 S.C. 340, 351, 354-55, 152 S.E. 652, 656-57 (1930) (stating the court has the “duty to enforce a verdict, not to make it” and holding that despite some initial difficulty in getting the jury to render a verdict proper in form, the jury’s intent [***39] was “entirely clear” when the verdict after a second set of deliberations “corresponded exactly” with the special findings obtained prior to sending the jury back to deliberate). Moreover, if the above practices are not used, the movant risks having to meet its burden of establishing that the jury’s intent is absolutely clear using solely the surrounding circumstances of the case. Lorick, 153 S.C. at 319-20, 150 S.E. at 792-93. Here, the jury did not conform the verdict to its intent, nor was the jury polled. 12 Therefore, because the burden to establish the jury’s intent remains on Larry as the movant, 13 he must establish the jury’s intent was unmistakable based on the surrounding circumstances of the case.
12 In fairness to Larry, he asked the trial court to determine whether the verdict in his favor was intended to be cumulative. He suggested to the trial court, “[E]ither inquire of the jury . . . in the courtroom or . . . send them out.” The trial court instead only questioned the foreperson in the presence of the other jurors.
13 In discussing the movant’s incentive and burden, I am not referring to our rules of preservation. This issue is preserved because Larry sufficiently raised [***40] it to the trial court by seeking to clarify the jury’s intent in the above-suggested manner before the jury was discharged and the trial court ruled on his motion.
[*205] Despite the uphill battle undertaken in this case to establish the jury’s intent, I agree to remand for an entry of judgment against Alpine Towers in favor of Larry for $3,400,500.00 actual damages and $1,110,000.00 punitive damages. The surrounding circumstances of this case make the jury’s intent unmistakable. Taken together, the forelady’s testimony, the jury note, the jury charge, the total damages awarded, and the single injury alleged can lead to only one conclusion: the jury intended to award Larry [**904] $3,400,000 in actual damages 14 and $1,110,000 in punitive damages.
14 This amount omits the damages awarded for the strict liability claim because the jury note was sent before the jury re-deliberated the strict liability claim.
Vinson v. Paramount Pictures Corporation et al., 2013 Cal. App. Unpub. LEXIS 3380
Robert Vinson, Plaintiff and Respondent, v. Paramount Pictures Corporation et al., Defendants and Appellants.
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR
2013 Cal. App. Unpub. LEXIS 3380
May 14, 2013, Opinion Filed
NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.
PRIOR HISTORY: [*1]
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC446030, Michelle R. Rosenblatt, Judge.
DISPOSITION: Reversed and remanded.
CORE TERMS: rope, inflatable, unambiguous, climbing, nonsuit, rock-climbing, fitness, economic damages, new trial, injury suffered, sponsored, noneconomic damages, climber’s, climb, private agreement, ordinary negligence, recreational activities, expressing, misconduct, membership, participating, partial, harness, signing, pulley, top, risk of injury, claims of negligence, injuries resulting, preclude liability
COUNSEL: Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller; Matthew B. Stucky; Pollard Mavredakis Cranert Crawford & Stevens and Terrence L. Cranert for Defendants and Appellants.
Law Offices of I. Allan Oberman, I. Allan Oberman; and Debra Fischl for Plaintiff and Respondent.
JUDGES: EPSTEIN, P. J.; MANELLA, J., SUZUKAWA, J. concurred.
OPINION BY: EPSTEIN, P. J.
Appellants Paramount Pictures Corporation, Viacom, Inc. and Elite Special Events, Inc. (collectively appellants) appeal from a money judgment in favor of respondent Robert Vinson. The jury awarded Vinson past economic damages sustained after a fall from an inflatable rock-climbing wall at an event hosted and sponsored by appellants, finding appellants’ negligence caused the harm to Vinson. They contend: (1) the trial court erred in denying appellants’ motion for nonsuit because a release and waiver signed by Vinson precluded a finding of liability; (2) the trial court erred in finding the primary assumption of the risk doctrine did not apply, and its failure to instruct the jury on the relevant duty owed by appellants was prejudicial; [*2] and (3) the trial court abused its discretion by granting a partial new trial on the limited issue of damages.
We conclude the release signed by Vinson was valid as to the rock-climbing activity underlying his claims. Vinson expressly consented to waive any claims based on injuries incurred while participating in any activities sponsored by appellants, precluding liability. We reverse the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Vinson was a member of the Paramount “Studio Club” (the Club). To be a member of the Club, he was required to complete an application and pay a fee. The application contained a section entitled “Assumption of Risk and Release” (the Release). The Release provided, in relevant part: “By enrolling as a member in [the Club], member hereby acknowledges that from time to time the Club sponsors certain events and activities that might present a risk of harm to the participants. In consideration of the Club’s arranging such events and activities . . . , member hereby assumes all risks associated with or resulting from such participation and member . . . releases . . . [appellants] of and from any and all claims . . . , which member may have or which may hereafter accrue [*3] on account of . . . any and all known and unknown, foreseen and unforeseen bodily and personal injuries . . . resulting or to result from any accident . . . which may occur as a result . . . of the member’s participation in any of the events or activities sponsored by the Club.” In January 2009, Vinson signed the application and initialed the Release provision.
In December 2009, the Club held a holiday party at Paramount Studios. The party included carnival games, food booths and performances. One attraction was an inflatable rock-climbing wall. The wall was approximately 30 feet tall with inflated protrusions which serve as hand and foot holds for potential climbers. When climbing on this type of wall, a climber is strapped into a harness connected to a rope. The rope then passes through a pulley at the top of the wall and loops back down to an operator of the wall. That operator uses a device called a grigri to control the amount of rope let out. The parties presented conflicting accounts of what occurred during Vinson’s participation in this activity.
Vinson claimed he was given no instruction on how to secure the harness or how to climb the wall. He testified that once he reached [*4] the top of the wall, he asked the two operators attending the wall what to do next. Vinson said the operators told him to remove his hands from the wall, grab the rope, and lean back. Shortly thereafter, all of the tension in the rope gave way and Vinson went into a free fall. He stated that he hit an inflatable apron at the base of the wall, bounced at least three feet into the air, then came crashing down on the concrete pavement surrounding the wall.
Appellants presented testimony that the operator holding the rope for Vinson gave him instructions on how to put on the harness and how to climb the wall. Once Vinson reached the top, he began to jump up and down off the wall and push back and forth, in response to encouragement from his friends below. Testimony indicated that the operator holding the rope told Vinson to stop and eventually began lowering him down the wall. At some point between 50 and 75 percent down the wall, enough slack was released on the rope to allow Vinson to reach the bottom. Vinson jumped and landed on the inflatable apron and, according to both of the operators, never hit the concrete.
Based on testimony from the operators themselves and an expert in rock-wall [*5] climbing, the operators should have had full control of the rope at all times, regardless of what the climber was doing. The amount of rope released from such a mechanism is solely controlled by the operators and thus the pace of a climber’s descent is determined by the operator releasing rope through the pulley system. The operators testified that neither of them had seen the manual that accompanied the inflatable wall and provided detailed instructions on how to operate it. The operator who controlled Vinson’s climb received only one hour of training. An expert testified that one half to a full day of training is typical, followed by constant supervision during the first day of operating a wall. The expert testified that, based on the evidence, the operator in this case failed to understand the mechanics of the pulley system and was negligent in his operation during Vinson’s climb. Vinson produced evidence that he suffered physical and psychological injuries as a result of the fall, leading to lost wages and lost earnings.
Vinson brought suit against appellants for past and future economic damages and past and future noneconomic damages. At the close of Vinson’s evidence, appellants [*6] moved for nonsuit on two grounds. First, they argued the Release, signed by Vinson, constituted a waiver of any claims arising out of participation in any events at the Club, precluding liability. The trial court found the Release was “not clear, unambiguous, and explicit in expressing either the activity, the risk, or the intent of the parties” and denied appellants’ motion on that ground. Second, they argued the primary assumption of the risk doctrine should apply to preclude liability because Vinson assumed the risks inherent in climbing the wall. They argued that general negligence principles did not apply, and because there was no evidence that the operators increased the risk of injury beyond that inherent in the activity, a nonsuit should be granted. The court found the climbing of an inflatable rock wall was somewhere between a carnival ride and a sport. It concluded the doctrine did not apply and denied the motion for nonsuit.
The jury returned a verdict for Vinson, finding appellants were negligent and that their negligence caused Vinson’s injuries. It awarded Vinson $70,620 in past economic damages, but nothing for future economic damages and nothing for the noneconomic damages [*7] he sought. Vinson moved for new trial limited to the issue of general damages or, in the alternative, for an addittur in an amount to be determined by the court. The court concluded there was no proper reason for the jury to award Vinson over $70,000 in special damages yet find that he did not incur any pain and suffering as a result of the incident. It reasoned that even if the jury found Vinson was malingering, and thereby inflating his claim for general damages, awarding no noneconomic damages was improper. The court granted Vinson’s motion for a partial new trial subject to appellants’ consent to an additur in the amount of $80,000. Appellants declined to accept the additur, and this appeal followed.
Appellants contend the trial court erred in denying their motion for nonsuit on two grounds. They argue the court should have found Vinson’s signature on the Release precluded liability. They also argue that even if the Release did not bar the claim, voluntarily participating in the climbing activity involved an assumption of the risk that negated appellants’ duty to eliminate the risks inherent in that activity.
Persons generally have a duty to use due care to avoid injuring [*8] others, and liability may result if their negligent conduct causes injury to another. (Civ. Code, § 1714; Knight v. Jewett (1992) 3 Cal.4th 296, 315.) However, a private party may expressly agree to release any claims of negligence against another by contract; such an agreement “is valid unless it contravenes public policy.” (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1292, p. 686; see also City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 758 [future liability for ordinary negligence generally may be released].)1 Implied assumption of the risk, on the other hand, involves exemption from liability based on the nature of a specific activity and the relationship of the parties to that activity, rather than on an express agreement. (Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 228.)
1 Our Supreme Court has noted that California courts have invalidated releases of liability for ordinary negligence when it is determined that the “particular release concerns a service that transcends a purely private agreement and affects the public interest.” (City of Santa Barbara v. Superior Court, supra, 41 Cal.4th at pp. 757-758.) But, private agreements [*9] made in connection with various sporting events or recreational activities generally have been upheld, as they do not involve necessary services and therefore do not contravene public policy or “transcend the realm of purely private matters.” (Id. at p. 759.) We find this release, signed in consideration for participation in various activities at a private club, constitutes “a purely private agreement”; Vinson’s participation in the rock-climbing activity did not involve necessary services and was a recreational activity well within the broad range of activities in which a number of California cases have upheld express waivers. (Id. at pp. 757, 759-760.)
“To be effective, a written release purporting to exculpate a tortfeasor from future negligence or misconduct must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.” (Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1490, declined to follow by Madison v. Superior Court (1988) 203 Cal.App.3d 589, 602, fn. 9.) “‘It is also necessary that the expressed terms of the agreement be applicable to the particular misconduct of the defendant . . . .’ [Citation.].” (Ibid., italics omitted.) [*10] “With respect to the question of express waiver, the legal issue is not whether the particular risk of injury [plaintiff] suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release.” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1484.)
The trial court denied appellants’ motion for nonsuit based on the signing of the Release, concluding it did not apply to Vinson’s claim because the “release [did] not ensure that [Vinson] knew the risks and hazards of this activity when he was signing a waiver of liability for negligence” on appellants’ part. The court reasoned that the Release was “not clear, unambiguous, and explicit in expressing either the activity, the risk, or the intent of the parties.”
Appellants argue the Release was explicitly intended to cover any activity at the Club and was sufficiently unambiguous to cover the activity at issue. They argue it was unnecessary to specifically identify rock-climbing as a covered activity, or the risks involved, in order for the Release to be effective. We agree.
Here, the plain language of the Release is explicit as to its breadth. According to its terms, the signer [*11] was releasing “any and all claims” against appellants based on “any and all injuries” resulting from “any accident” arising out of his or her “participation in any of the events or activities sponsored by the Club.” Vinson argues the specific activity involved here, inflatable rock wall climbing, was not comprehended by the release. Similarly, the trial court relied on the theory that the Release failed to identify the specific risk involved or that the risks were unknown to Vinson when he signed it. However, “[w]hen a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had a specific knowledge of the particular risk that ultimately caused the injury.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357.) “While it is true that the express terms of any release agreement must be applicable to the particular misconduct of the defendant [citation], that does not mean that every possible specific act of negligence of the defendant must be spelled out in the agreement or even discussed by the parties.” (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 601.) Furthermore, “[t]he inclusion of the term ‘negligence’ is simply [*12] not required to validate an exculpatory clause.” (Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal.App.4th 62, 67.)
In Sanchez v. Bally’s Total Fitness Corp., supra, 68 Cal.App.4th at page 67, the court dealt with a release in the fitness center context. The court found the defendant health club unremarkably foresaw potential injuries to members of its club and rationally required them to sign a release and assumption of risk as a condition of membership. (Ibid.) The release broadly covered injuries “‘arising out of or connected with the use of the fitness center.”‘ (Id. at p. 69.) The court found the release covered the injury suffered by the plaintiff as it occurred while using the fitness center.
In Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th at page 1358, the court discussed a release signed by the plaintiff upon joining the defendant fitness center. The release stated the signer was waiving liability for injuries suffered while on the defendant’s premises, “‘whether using exercise equipment or not.’” (Ibid.) The court found the purpose of the release was to protect the defendant from future liability in consideration for granting the plaintiff access to defendant’s premises. [*13] (Ibid.) The plaintiff was then injured while adjusting a television on defendant’s premises. (Id. at p. 1355.) The court rejected the plaintiff’s argument that the release should not apply to an activity which was secondary to his membership in the fitness center, especially when the risk of a falling television was not known to him at the time the release was signed. (Id. at pp. 1357-1359.) The court concluded that the broad, unambiguous language of the release served to preclude liability on the part of the defendant for any injuries suffered by plaintiff on defendant’s premises. (Id. at p. 1358.)
Here, Vinson signed a release of all claims for any injuries suffered on appellants’ premises in consideration for membership in the Club and access to certain events. Similar to the releases discussed in the cases above, we find the language of the release signed by Vinson broad and unambiguous. The fact that the activity resulting in the injury was not specifically mentioned in the express terms of the release does not make it ineffective. Having consented to release any claims against appellants based on injuries incurred while participating in any activities at the Club, Vinson absolved [*14] appellants of liability for ordinary negligence during his participation in this particular activity.
Because we have concluded Vinson expressly released appellants from liability, thereby serving as a bar to his claim of negligence, appellants’ contentions regarding primary assumption of the risk are moot.
Appellants also contend the jury’s decision to award substantial economic damages, but no noneconomic damages, was clearly a compromise verdict. They argue the trial court’s granting of a partial new trial solely on the issue of damages was an abuse of discretion, and a full new trial should have been ordered. Again, we need not address this issue as we have concluded the negligence claim was precluded by Vinson’s signing of the Release.
The judgment is reversed, and the case remanded with instructions. Appellants to have their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
Foster, et al., v. Alex Kosseff, et al., 2013 U.S. Dist. LEXIS 40566 (E.D. Wash. 2013)
Stephanie Foster, et al., Plaintiffs, v. Alex Kosseff, et al., Defendants.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON
2013 U.S. Dist. LEXIS 40566
March 22, 2013, Decided
March 22, 2013, Filed
PRIOR HISTORY: Foster v. Kosseff, 2013 U.S. Dist. LEXIS 5380 (E.D. Wash., Jan. 14, 2013)
COUNSEL: [*1] For Stephanie Foster, Gary Foster, Susan Foster, Plaintiffs: Allen M Ressler, LEAD ATTORNEY, Ressler and Tesh PLLC, Seattle, WA; William S Finger, LEAD ATTORNEY, Frank & Finger PC, Evergreen, CO.
For Alex Kosseff, Adventure Safety International LLC, Defendants: Heather C Yakely, LEAD ATTORNEY, Evans Craven & Lackie PS – SPO, Spokane, WA.
JUDGES: THOMAS O. RICE, United States District Judge.
OPINION BY: THOMAS O. RICE
ORDER GRANTING DEFENDANT ALEX KOSSEFF’S AND DEFENDANT ADVENTURE SAFETY INTERNATIONAL’S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT is a motion for summary judgment filed by Defendants Alex Kosseff and Adventure Safety International (ECF No. 80). This matter was heard with oral argument on March 22, 2013. William S. Finger appeared on behalf of the Plaintiffs. Heather C. Yakely appeared on behalf of Defendants Alex Kosseff and Adventure Safety International. The Court has reviewed the briefing and the record and files herein, and is fully informed.
Defendants Alex Kosseff (“Kosseff”) and Adventure Safety International LLC (“ASI”) have moved for summary judgment on Plaintiffs’ negligence claims. Defendants assert that these claims fail as a matter of law because neither Kosseff nor ASI [*2] owed Plaintiff Stephanie Foster (“Ms. Foster”) a duty of care to identify the dangerous condition which caused her to fall from the Whitman College climbing wall on April 28, 2008.
Ms. Foster enrolled as a freshman at Whitman College in the fall of 2007. During the 2007-2008 academic year, Plaintiff enrolled in several rock climbing classes offered through the Whitman College Outdoor Program (“Outdoor Program”). She also accepted a paid position as a student climbing instructor for the Outdoor Program. As a result of this coursework and employment, Plaintiff participated in several climbing sessions on a sport climbing wall located on the Whitman College campus.
On April 28, 2008, Ms. Foster was summoned to the climbing wall by her supervisor, Brien Sheedy (“Sheedy”) to assist in removing several climbing ropes that were hanging from the top of the wall. At Sheedy’s direction, Ms. Foster ascended the wall, climbed atop a platform adjacent to the wall, and removed all but one of the ropes. Having completed her task, Ms. Foster lowered herself back onto the climbing wall with the intention of rappelling down the wall using the remaining rope. Shortly after beginning her descent, however, [*3] the remaining rope became unhooked from two “Super Shut” anchors located near the top of the wall. The release of the rope caused Ms. Foster to free fall approximately 35 feet to the ground, resulting in serious permanent injury to her spine.
In April of 2007, one year prior to Ms. Foster’s fall, Whitman College hired ASI to perform a “risk management audit” of the Outdoor Program. The purpose and scope of this audit are central to the outcome of this case. Unfortunately, the terms of the agreement between Whitman College and ASI were never reduced to writing. In any event, it is undisputed that the audit was conducted by Defendant Alex Kosseff (“Kosseff”) over the course of four days on the Whitman College campus. It is further undisputed that Whitman College paid $3,000 for the audit.
During the course of the audit, Kosseff met with several students and administrators who were involved with the Outdoor Program. He also observed several regularly-scheduled activities, including an open climbing wall session, a pool session offered to students in a kayaking class, a climbing wall session offered to students in a rock climbing class, a training session for an upcoming climbing competition, [*4] and a debriefing session for a glacier mountaineering course. ECF No. 153-5 at 7.
After completing his site visit, Kosseff prepared and submitted a written report of his findings and recommendations to Whitman College. The authenticity of this document, which bears the title, “Draft Risk Management Audit,” (hereafter “audit report”) is undisputed. 1 The audit report contains several passages which are relevant to the issues raised in the instant motion. One such passage, under the heading “Audit Process Introduction” reads as follows:
The ASI Risk Management Audit program is a voluntary program aimed at improving risk management practices in outdoor education and recreation. This program has been designed by ASI and the audit process is handled by one of our experienced staff members. We recognize that each program is unique and that one standardized risk management plan will not work for every organization. With this in mind, the ASI Risk Management audit process does not prescribe specific approaches, but rather aims to assess that different aspects [of] risk management are being addressed.
ASI’s audit program is designed as an accessible step for organizations that want to reduce the [*5] risk of an accident taking place. It gives organizational management, clients/students, and others confidence that prudent steps are being taken to manage hazards. If an accident does occur, participation in this voluntary program can protect the organization’s reputation and serve, if necessary, as part of a legal defense. ASI’s audit program focuses exclusively on risk management and safety concerns and does not address educational, marketing, business and financial management, or other issues.
ECF No. 153-5 at 5.
1 ASI apparently contemplated issuing a final draft after Whitman College had reviewed and implemented its recommendations, but no final draft was ever issued. ECF No. 84-1 at Tr. 35-36.
In another passage, under the heading “Audit Program Disclaimer,” the audit report states:
The nature of Adventure Safety International Risk Management Audit is to gain a general understanding of the risk management practices at the time of the review. This is done primarily through review of the self assessment responses supplied by the management of the program being accredited. This is supplemented with onsite observation and interviews, which occur during a brief site visit.
The major aim [*6] of this voluntary audit is to benchmark the program against the risk management guidelines that ASI believes will promote good risk management practice. The benchmarks have been established, at three levels, in many (but not all) areas of risk management planning. The intent is to identify and share good practice amongst outdoor programs and over time to raise the level of risk management practice.
The audit cannot provide any guarantee that future operations will be free of safety incidents. Rather the audit documents that at the time of the review risk management practices met or exceeded risk management guidelines established by ASI and based on current industry practices.
ECF No. 153-5 at 6.
Finally, the audit report documents ASI’s substantive findings and recommendations across 27 different program evaluation criteria. These criteria vary widely, ranging from training and oversight of activity leaders to safety of passenger vans and drivers. Included among these criteria are ratings for “Equipment” and “Facilities.” ECF No. 153-5 at 30, 35. The audit report assigns the Outdoor Program the highest rating in both categories, noting that the quality of the program’s equipment was “exceptional,” [*7] and that those responsible for the program routinely inspect facilities for potential safety hazards. ECF No. 153-5 at 30, 35.
Shortly after Ms. Foster’s fall on April 28, 2008, Whitman College hired ASI to investigate the cause of the accident. ASI assigned Kosseff to conduct the investigation. Kosseff ultimately concluded that the accident occurred as a result of Plaintiff climbing above the Super Shut anchors and subsequently descending below them. According to Kosseff, the Super Shut anchors were not designed to accommodate a person climbing above them; rather, the anchors were designed for use only at “dead end” locations on a sport climbing wall. Kosseff further noted that the manufacturer of the anchors had issued warnings against climbing above them, noting that the risk of a climbing rope becoming disengaged from an anchor in this situation was about “50/50.” Thus, Kosseff concluded that both Whitman College and Ms. Foster were negligent in using the Super Shut anchors for a purpose for which they were not designed.
In the instant lawsuit, Plaintiffs assign fault to Kosseff for failing to identify the risks posed by the Super Shut anchors during the ASI’s risk management audit. [*8] Had Kosseff identified these risks and reported them to Whitman College, Plaintiffs assert, the problem could have been corrected before Ms. Foster was injured. For the reasons discussed below, the Court finds that ASI’s duty of care arising from the risk management audit did not extend to identifying the risk posed by improper use of the Super Shut anchors.
The Court may grant summary judgment in favor of a moving party who demonstrates “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The burden then shifts to the non-moving party to identify specific genuine issues of material fact which must be decided by a jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252.
For [*9] purposes of summary judgment, a fact is “material” if it might affect the outcome of the suit under the governing law. Id. at 248. A dispute as to any such fact is “genuine” only where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. In ruling on a summary judgment motion, a court must construe the facts, as well as all rational inferences therefrom, in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). Finally, the court may only consider evidence that would be admissible at trial. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002).
A. Plaintiff Was an Intended Beneficiary of the Risk Management Audit
In its prior order denying Defendants’ motion to dismiss, the Court remarked that, in its view, the viability of Plaintiffs’ negligence claim hinged on their ability to establish that Ms. Foster was an intended third-party beneficiary of the contract between ASI and Whitman College. ECF No. 72 at 10 (citing Burg v. Shannon & Wilson, Inc., 110 Wash. App. 798, 807-08, 43 P.3d 526 (2002)). Specifically, the Court commented that, in order to avoid summary dismissal of this claim, Plaintiff would need to establish, [*10] as a threshold matter, that “ASI agreed to undertake the risk management audit for the benefit of the college’s employees and students rather than for the benefit of the college itself.” ECF No. 72 at 10.
Having reviewed the record on summary judgment, the Court finds that Plaintiffs have established a triable question of fact on this issue. First, the Draft Risk Management Audit indicates that ASI’s audit program is designed to “give organizational management, clients/students, and others confidence that prudent steps are being taken to manage hazards.” ECF No. 153-5 at 5 (emphasis added). Second, the Director of the Outdoor Program, Brien Sheedy, testified during his deposition that the risk management audit was designed to minimize risks to “all users” of the Outdoor Program, including students and employees. ECF No. 153-10 at 34-35. Third, Whitman College’s chief financial officer, Peter Harvey, testified that the college typically takes an “across the board” approach to risk management by attempting to mitigate risks to students, employees and faculty. ECF No. 153-8 at 25. Finally, Whitman College’s president, George Bridges, testified that he would expect any risk management [*11] audit commissioned by the college “to protect the school and the employees and the students.” ECF No. 153-9 at 44. A rational jury could find from this evidence that Ms. Foster, as an employee and student of Whitman College, was an intended beneficiary of the contract for the risk management audit.
B. The Danger Posed by Misuse of the Super Shut Anchors Was Beyond the Scope of ASI’s Risk Management Audit
There are four elements to a common law negligence claim in Washington: duty, breach, causation and damages. Michaels v. CH2M Hill, Inc., 171 Wn.2d 587, 605, 257 P.3d 532 (2011). As to the first element, a duty of care is defined as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc., 170 Wash.2d 442, 449, 243 P.3d 521 (2010) (internal quotation and citation omitted). Whether a duty of care exists is a matter of law to be decided by the court rather than by a jury. Osborn v. Mason Cnty., 157 Wash.2d 18, 23, 134 P.3d 197 (2006). This is a “threshold question” which involves three separate inquiries: “Does an obligation exist? What is the measure of care required? To whom and with respect to what [*12] risks is the obligation owed?” Affiliated FM Ins. Co., 170 Wash.2d at 449. In deciding whether the law imposes a duty of care, a court must balance “considerations of logic, common sense, justice, policy, and precedent.” Id. at 450 (internal quotations and citations omitted).
Here, Defendants contend that they did not owe Ms. Foster a duty of care to discover the danger posed by misuse of the Super Shut anchors. The Court agrees. In Washington, a private party who inspects another’s premises for safety hazards may be liable to third parties for injuries caused by the inspecting party’s negligence. See Sheridan v. Aetna Cas. & Surety Co., 3 Wash.2d 423, 439-40, 100 P.2d 1024 (1940); (liability insurer which inspected cargo elevator for safety hazards liable to third party who was injured as a result of insurer’s failure to discover dangerous condition); Nielson v. Wolfkill Corp., 47 Wash. App. 352, 359-60, 734 P.2d 961 (1987) (injured worker’s cause of action for negligent safety inspection performed by Department of Labor and Industries inspector barred by Washington Industrial Insurance Act); see also Restatement (Second) of Torts § 324A(b) (1965) (“One who undertakes, gratuitously or for consideration, to render [*13] services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if he has undertaken to perform a duty owed by the other to the third person.”).
Nevertheless, the act of inspecting another’s premises for safety hazards does not transform the inspecting party into a de facto insurer against any and all risks. Although the Court has not located any cases directly on-point in the State of Washington, courts in other jurisdictions have held that an inspecting party is only liable for undiscovered hazards which he or she undertook to discover in the first place. See, e.g., Procter & Gamble Co. v. Staples, 551 So.2d 949, 955-56 (Ala. 1989) (“In defining the nature of the duty undertaken by a voluntary [safety] inspection, two aspects must be considered–the physical scope of the undertaking and the degree of scrutiny and action mandated by conditions observed or reasonably observable.”) (quotation and citation omitted); Winslett v. Twin City Fire Ins. Co., 141 Ga. App. 143, 232 S.E.2d 638, 639 (Ga. App. 1977) (no liability [*14] to third party for failing to discover dangerous condition on construction crane where “evidence was uncontradicted that no detailed inspections of machinery or equipment were contemplated or made”); Lavazzi v. McDonald’s Corp., 239 Ill. App. 3d 403, 606 N.E.2d 845, 849-50, 179 Ill. Dec. 1013 (Ill. App. 1992) (inspectors hired by restaurant to perform food safety inspections at supplier’s plant not liable for negligent inspection where inspectors “did not specifically focus any attention . . . on the piece of equipment involved in the injury”). In other words, the weight of authority from other jurisdictions counsels that an inspecting party’s liability for negligent inspection must be circumscribed by the scope of the inspection actually performed.
The Court concludes that “considerations of logic, common sense, justice, policy, and precedent” support adoption of this rule. See Affiliated FM Ins. Co., 170 Wash.2d at 450. Contrary to Plaintiffs’ assertions, an inspecting party’s duty of care is not synonymous with the foreseeability of a particular injury occurring. As Defendants correctly note, this argument improperly collapses the duty of care and causation elements of a negligence claim. In Washington, a negligence plaintiff [*15] must make a “threshold showing” that the defendant owed her a duty of care before proceeding to the issues of whether the defendant breached its duty and whether the breach was a foreseeable cause of the plaintiff’s injury. See Munich v. Skagit Emergency Commc’ns Ctr., 175 Wn.2d 871, 877, 288 P.3d 328 (2012). While foreseeability can sometimes inform the scope of a duty owed, it cannot create the duty of care in the first instance. Michaels, 171 Wn.2d at 608. Indeed, equating duty with foreseeability in the context of a safety inspection would lead to a perverse result: an inspector would be legally obligated to report each and every manner in which a person might conceivably be injured–regardless of how obvious, inherent or attenuated the danger might be. This result would effectively transform safety inspectors into de facto insurers against all risks. As a matter of logic and public policy, the better approach is to define an inspector’s duty of care according to the types of hazards that were actually targeted by his or her inspection.
Applying this rule to the instant case, the Court finds that the hazard which caused Ms. Foster’s fall–misuse of the Super Shut anchors–was simply beyond [*16] the scope of the risk management audit that ASI performed. As a threshold matter, Plaintiffs have failed to establish that ASI undertook to inspect any individual pieces of equipment maintained by the Outdoor Program. In his deposition, Kosseff testified unequivocally that the Outdoor Program’s equipment was beyond the scope of ASI’s audit:
There were hundreds and hundreds of pieces of equipment within this program. Each of those pieces of equipment, especially the climbing [equipment], have specific ways in which they’re used. There — I was not looking at how this equipment would be utilized in this situation. I was looking at how the college conducted their systems for managing risk.
ECF No. 84-1 at Tr. 94. Similarly, Brien Sheedy states in his declaration that he “understood and expected that the [audit] would not review specific equipment utilized in the Outdoor Program, for example the Fixe Super Shut anchors, as that type of inspection was not envisioned by the audit process based upon the information [he] learned from [Kosseff]” prior to hiring ASI. ECF No. 82 at ¶ 6. Although this testimony is somewhat self-serving, Plaintiffs have not rebutted it.
Moreover, even assuming for [*17] the sake of argument that ASI was charged with inspecting individual pieces of equipment, it could not reasonably have been expected to identify hazards stemming from potential misuse of the equipment. As Defendants correctly note, the Super Shut anchors which Ms. Foster was using at the time of the accident did not truly “fail.” Rather, the anchors did something that they were designed to do–i.e., release a climbing rope–when Ms. Foster used them for an unsupported application.
To whatever extent Kosseff understood the danger of the Super Shuts releasing a rope in this scenario, he was not obligated to address it with Whitman College. ASI did not contract with Whitman College to address dangers caused by misuse of the Outdoor Program’s equipment. While there is no written contract evidencing the scope of work that ASI agreed to perform, the audit report prepared by Kosseff is highly informative. Having reviewed the audit report in its entirety, the Court finds that the purpose of the risk management audit was to improve Whitman College’s safety practices rather than to identify and catalog specific safety hazards. Indeed, there is no evidence that ASI agreed to perform a detailed “safety [*18] inspection” of specific outdoor equipment, buildings, vehicles, etc. Nor is there any evidence that Kosseff actually undertook to perform an inspection at that minute level of detail.
In the final analysis, there is simply no evidence that ASI agreed or undertook to examine the virtually countless ways in which the Outdoor Program’s climbing equipment could have been dangerously misused. Accordingly, Plaintiffs have not met their burden of establishing that ASI owed Ms. Foster a duty of care to discover and report the danger posed by misuse of the Super Shut anchors. In the absence of a duty of care, Plaintiffs cannot prevail on their negligence claim. Defendants’ motion for summary judgment is granted.
ACCORDINGLY, IT IS HEREBY ORDERED:
1. The motion for summary judgment filed by Defendants Alex Kosseff and Adventure Safety International (ECF No. 80) is GRANTED. Plaintiffs’ claims against these Defendants are DISMISSED with prejudice.
2. Plaintiffs’ claim against Defendant Fixe Industry, which has never been served in this action, is DISMISSED without prejudice.
3. All pending motions are DENIED as moot.
The District Court Executive is hereby directed to enter this Order and a judgment [*19] accordingly, provide copies to counsel, and CLOSE the file.
DATED March 22, 2013.
/s/ Thomas O. Rice
THOMAS O. RICE
United States District Judge
Schmidt v. United States of America, 1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38 (Okla 1996)
ELIZABETH M. SCHMIDT, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
SUPREME COURT OF OKLAHOMA
1996 OK 29; 912 P.2d 871; 1996 Okla. LEXIS 38
February 27, 1996, FILED
COUNSEL: Alan D. Rosenbaum, Lawton, OK, Reggie N. Whitten, Douglas A. Terry, MILLS & WHITTEN, Oklahoma City, OK, For Plaintiff.
Patrick M. Ryan, United States Attorney, Ronny D. Pyle, Assistant United States Attorney, Western District of Oklahoma, For Defendant.
JUDGES: KAUGER, V.C.J., HODGES, LAVENDER, SIMMS, HARGRAVE, OPALA, SUMMERS and WATT, JJ., concur; WILSON, C.J., concurs in part and dissents in part.
OPINION BY: OPALA
[*872] CERTIFIED QUESTIONS FROM A UNITED STATES COURT
The United States District Court for the Western [**2] District of Oklahoma [certifying court] certified the following questions pursuant to the Uniform Certification of Questions of Law Act, 20 O.S.1991 §§ 1601 et seq.:
“1. Whether, under Oklahoma law, a contractual exculpatory clause for personal injury is valid and enforceable?
2. Whether, under Oklahoma law, the exculpatory provisions contained in the Rental Riding Agreement are valid and enforceable and operate to bar the plaintiff’s negligence and negligent entrustment claims?”
We respond to the first question in the affirmative. We answer the second with a qualifying affirmative by noting that it applies if the certifying court finds that three preconditions to the clause’s enforcement are met: (1) the exculpatory clause’s language clearly, definitely and unambiguously displays an intent to insulate the United States from the type of liability the plaintiff seeks to impose; (2) no disparity of bargaining power existed between the two parties to the agreement containing the clause at the time it was executed; and (3) its effect would not violate public policy. We note that exculpatory clauses cannot relieve one from liability for fraud, [**3] willful injury, gross negligence or violation of the law. 1
1 See infra notes 8 and 15.
ANATOMY OF THE FEDERAL LITIGATION 2
2 The material accompanying the certified questions consists of the parties’ pleadings and motions filed in the certifying court. The factual recitals in the anatomy of the federal litigation were gleaned from this material and from the briefs submitted to this court.
Elizabeth M. Schmidt [plaintiff or Schmidt] went to the Artillery Hunt Riding Stables [Stables] at Fort Sill, Oklahoma 3 to engage in recreational horseback riding. Before participating in this activity she executed a Rental Riding Agreement [contract]. The contract contained the following clause [exculpatory clause or clause]:
“In consideration for being allowed to participate in Horse Rental, I hereby release [**4] the Artillery Hunt Center and its employees and/or ride leaders . . . and the United States Government from any liabilities or claims arising from my participation. I agree that I will never prosecute or in any way aid in prosecuting any demand, claim or suit against the United States Government for any loss, damage or injury to my person or property that may occur from any cause whatsoever as a result of taking part in this activity.” [Emphasis supplied.]
3 The Stables are admittedly an instrumentality of the U.S. Army.
Schmidt claims that, during the ride, a “ride leader” employed by the Stables negligently rode up behind her, frightened her horse and caused it to throw her to the ground, then fall on and injure her.
[*873] Schmidt brought a negligent tort complaint against the United States 4 alleging that the latter (1) is liable vicariously for the ride leader’s negligence and (2) is culpable for its own negligence in selecting and keeping an unfit ride leader. 5 By its summary [**5] judgment motion the United States interposed the exculpatory clause, by which it sought to defeat Schmidt’s claim.
4 Schmidt’s action invokes the Federal Tort Claims Act [FTCA], 28 U.S.C. §§ 2671 et seq. [HN1] By the FTCA’s terms the United States’ liability is measured according to the law of the state in which the wrongful act occurred. 28 U.S.C. § 2674.
5 Schmidt charges the United States with actual notice of the employee’s unfitness to lead the ride.
THE NATURE OF THIS COURT’S FUNCTION WHEN ANSWERING QUESTIONS FROM A FEDERAL COURT
[HN2] While the actionability of state-law claims identified in the submitted questions may be tested when answering the queries posed, it is not this court’s province to intrude (by the responses to be given) upon the federal court’s decision-making process. Because this case is not before us for decision,we refrain, as we must, from applying the declared state-law responses to the facts elicited or to be determined in the federal-court litigation (whether [**6] made by evidence adduced at trial or by acceptable probative substitutes, called “evidentiary materials”, for use in the summary adjudication process). 6 The task of analyzing the impact of today’s answers must be and hence is deferred to the certifying court.
6 Brown v. Ford, Okl., 905 P.2d 223, 226 n. 3 (1995); Bonner v. Oklahoma Rock Corp., Okl., 863 P.2d 1176, 1178 n. 3 (1993); Shebester v. Triple Crown Insurers, Okl., 826 P.2d 603, 606 n. 4 (1992).
THE PARAMETERS OF THE CLAUSE’S ENFORCEABILITY
[HN3] By entering into an exculpatory agreement of the type dealt with here 7 the promisor assumes the risks that are waived. 8 [*874] While these exculpatory promise based obligations are generally enforceable, 9 they are distasteful to the law. 10 For a validity test the exculpatory clause must pass a gauntlet of judicially-crafted hurdles: (1) their language must evidence a clear and unambiguous intent to exonerate the would-be defendant 11 from liability for the sought-to-be-recovered [**7] damages; 12 (2) at the time the contract (containing the clause) was executed there must have been no vast difference in bargaining power between the parties; 13 and (3) enforcement of these clauses must never (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy. 14
7 For a discussion of the difference between a contract clause totally exempting one from culpability and one which merely limits the financial extent of that liability, see Elsken v. Network Multi-Family Sec. Corp., Okl., 838 P.2d 1007, 1008 (1992); Fretwell v. Protection Alarm Co., Okl., 764 P.2d 149, 151 (1988). In both of those cases a burglar alarm company sought to limit its liability for loss due to theft of customers’ property via a liquidated damages provision. The propriety of similar liability-limiting contract clauses is subject to an analysis grounded in contract law that lies outside the realm of tort jurisprudence. See MacNeil, Power of Contract and Agreed Remedies, 47 CORNELL L. Q. 495 (1962).
8 [HN4] Express assumption of risk occurs in those cases where the plaintiff expressly contracts with another not to sue for any future injuries which may be caused by that person’s negligence. Thomas v. Holliday by and through Holliday, Okl., 764 P.2d 165, 168 n. 8 (1988); Murray v. Ramada Inns, Inc., 521 So. 2d 1123, 1129 (La. 1988); Anderson v. Ceccardi, 6 Ohio St. 3d 110, 451 N.E.2d 780, 783 (1983). The terms of RESTATEMENT (SECOND) OF TORTS § 496B (1965) provide:
[HN5] “A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.” [Emphasis added.]
For a discussion of the jurisprudential requisites for determining whether an exculpatory contract violates public policy, see infra Part IIIC. See also in this connection V. SCHWARTZ, COMPARATIVE NEGLIGENCE § 9.1 at 154 (1974). [HN6] Express consent, which might also be called “waiver” or “release”, will usually bar recovery by the plaintiff unless there is a statute or established public policy against it. Murray, supra at 1129. The two statutory provisions cited by Schmidt are inapposite here. The terms of the first, [HN7] 15 O.S.1991 § 212, provide:
“All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another or violation of the law, whether willful or negligent, are against the public policy of the law.” [Emphasis added.]
This section forbids agreements relieving one from liability for fraud, willful injury or violation of the law. Its terms cannot be read to embrace contracts affecting liability for simple negligence. We assume — for want of contrary notice from the federal-court record — that in this case there is no fraudulent or willful conduct.
The terms of the second section, [HN8] 15 O.S.1991 § 212.1, provide:
“Any notice given by a business entity which provides services or facilities for profit to the general public and which seeks to exempt the business entity from liability for personal injury caused by or resulting from any acts of negligence on its part or on the part of its servants or employees, shall be deemed void as against public policy and wholly unenforceable.” [Emphasis added.]
[HN9] This section’s terms apply to promises imposed without the promisor’s adequate knowledge through explanation or sans consideration. That is not the case here because the exculpatory contract in suit clearly amounts to more than a posted notice.
9 Wolf v. Ford, 335 Md. 525, 644 A.2d 522, 525 (1994); Colgan v. Agway, Inc., 150 Vt. 373, 553 A.2d 143, 145 (Vt. 1988); Harris v. Walker, 119 Ill. 2d 542, 116 Ill. Dec. 702, 519 N.E.2d 917, 919 (1988); Rawlings v. Layne & Bowler Pump Company, 93 Idaho 496, 465 P.2d 107, 110 (1970); Henry v. Mansfield Beauty Academy, Inc., 353 Mass. 507, 233 N.E.2d 22, 24 (Mass. 1968); Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y.2d 294, 177 N.E.2d 925, 926, 220 N.Y.S.2d 962 (1961).
10 Gulf C&S Ry. Co. v. Anderson, 120 Okla. 60, 250 P. 500, 502 (1926).
11 Colgan, supra note 9 at 145; Jones v. Dressel, 623 P.2d 370, 378 (Colo. 1981); Anderson, supra note 10 at 502.
12 Anderson, supra note 10 at 502.
13 Salt River Project Agr. v. Westinghouse Elec., 143 Ariz. 368, 694 P.2d 198, 213 (1985); Elsken, supra note 7 at 1010-1111.
14 Shepard v. Farmers Insurance Co., Okl., 678 P.2d 250, 251 (1984). See also Thomas, supra note 8 at 168 n. 7; Fisk v. Bullard, 205 Okla. 502, 239 P.2d 424, 427 (1951); Anderson, supra note 10 at 502. See also in this connection Harris, supra note 9 at 909; Salt River, supra note 13 at 213; Belger Cartage Serv., Inc., v. Holland Const. Co., 224 Kan. 320, 582 P.2d 1111, 1119 (1978); Ciofalo, supra note 9 at 926. 15
The clause will never avail to relieve a party from liability for intentional, willful or fraudulent acts or gross, wanton negligence. 15
15 Wolf supra note 9 at 528; Jones, supra note 11 at 376; Manhattan Co. v. Goldberg, 38 A.2d 172, 174 (D.C. 1944).
A. Clear and Unambiguous Description of Parties and Damages
[HN11] A contractual provision which one party claims excuses it from liability for in futuro tortious acts or omissions must clearly and cogently (1) demonstrate an intent to relieve that person from fault and (2) describe the nature and extent of damages from which that party seeks to be relieved. This is so not only when one assesses a party’s direct liability for negligence, but also when assaying whether the agreement’s terms embrace acts of an agent or servant of that party. In short, both the identity of the tortfeasor to be released and the nature of the wrongful act — for which liability is sought to be imposed — must have been foreseen by, and fall [**11] fairly within the contemplation of, the parties. 16 The clause must also identify the type and extent of damages covered — including those to occur in futuro. 17
16 Anderson, supra note 10 at 502.
17 Anderson, supra note 10 at 502.
B. Bargaining Power’s Parity Level
[HN12] Courts consider two factors when called upon to ascertain the equality of the parties’ bargaining power, vis-a-vis each other, in the setting of a promissory risk assumption: (1) the importance of the subject matter to the physical or economic well-being of the party agreeing to the release and (2) the amount of free choice that party could have exercised when seeking alternate services. 18
18 Goldberg, supra note 15 at 174-175. See Trumbower v. Sports Car Club of America, Inc., 428 F. Supp. 1113, 1117 (W.D. Okla. 1976).
[**12] [*875] C. The Element Whose Presence Makes the Exculpation Not Violative of Public Policy 19
19 [HN13] In the context of an exculpatory clause’s validity, “public policy” means that which inhibits anything injurious to the good of all. The term is applied here in a sense broader than that used when scrutinizing for conformity to “public policy” wrongful-termination claims pressed by discharged at-will employees. Cameron & Henderson v. Franks, 199 Okla. 143, 184 P.2d 965, 972 (1947). For cases that deal with claims by discharged at-will employees see Groce v. Foster, Okl., 880 P.2d 902, 904 (1994); Gilmore v. Enogex, Inc., Okl., 878 P.2d 360, 364 (1994); Burk v. K-Mart Corp., Okl., 770 P.2d 24, 28-29 (1989).
While courts may declare void those portions of private contracts which contradict public policy, 20 they must do so only with great caution. 21 Two classes of exculpating agreements may be said to violate public policy: (1) those which — if enforced — patently would tend to injure public [**13] morals, public health or confidence in the administration of the law and (2) those which would destroy the security of individuals’ rights to personal safety or private property. 22
20 Hargrave v. Canadian Valley Elec. Co-op., Okl., 792 P.2d 50, 59 (1990).
21 Shepard v. Farmers Insurance Co., Okl., 678 P.2d 250, 251 (1984); Johnston v. J.R. Watkins Co., 195 Okla. 341, 157 P.2d 755, 757 (1945); Camp v. Black Gold Petroleum Co., 189 Okla. 692, 119 P.2d 815, 817-818 (1941).
22 Shepard, supra note 21 at 251; Anderson v. Reed, 133 Okla. 23, 270 P. 854, 856 (1928). An example of an exculpatory clause injurious to public health is afforded by an agreement exonerating a common carrier from liability for negligence. See Pine Belt Lumber Co. v. Riggs, 80 Okla. 28, 193 P. 990, 996-997 (1920).
[HN15] National jurisprudence teaches that parties may contractually allocate the risk of future harm. The exercise of this power is conditional; any agreement having as its purpose [**14] the unequivocal exoneration of one party from negligent tort liability of another must identify both the putative tortfeasor and the category of recovery from which that actor would be relieved. The parties must have bargained for their exchange on a level playing field — the level to be measured by the seriousness of the contract’s subject matter and the options available to the person giving up the right to sue. If the clause is to pass the test’s muster, the assumed obligation cannot be deemed to have brought about a result perceived as harmful to the principles of “public policy”. 23
23 See supra note 19.
The validity of the Schmidt/Stables exculpatory clause in suit depends on the outcome of the fact-finding investigation to be conducted in the certifying court. 24 If — under the test we announce today — that court should determine that any single requirement for the clause’s enforceability has not been met, its decision could not uphold the contract and exonerate the United [**15] States.
24 Promise-based obligations of the type dealt with here are treated as the promisor’s risk assumption. See supra Part III. [HN16] The terms of ART. 23, § 6, OKL.CONST., provide in pertinent part:
“The defense of . . . assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury.” [Emphasis added.]
[HN17] The terms of ART. 23, § 8, OKL.CONST., provide:
Any provision of a contract, express or implied, made by any person, by which any of the benefits of this constitution is sought to be waived, shall be null and void.” [Emphasis added.]
Today we merely define the parameters of an exculpating clause’s enforceability. Whether, as applied to this case, the provision presents a disputed law question or also a disputed fact question is to be decided by the certifying court.
CERTIFIED QUESTIONS ANSWERED.
KAUGER, V.C.J., HODGES, LAVENDER, SIMMS, HARGRAVE, OPALA, SUMMERS and WATT, JJ., concur;
WILSON, [**16] C.J., concurs in part and dissents in part.
Travent, Ltd., v. Schecter, 718 So. 2d 939; 1998 Fla. App. LEXIS 12840; 23 Fla. L. Weekly D 2384 (Fl App 1998)Posted: May 20, 2013
Travent, Ltd., v. Schecter, 718 So. 2d 939; 1998 Fla. App. LEXIS 12840; 23 Fla. L. Weekly D 2384 (Fl App 1998)
Travent, Ltd., Appellant, v. Mark Schecter and Karen Schecter, his wife, Appellees.
CASE NO. 97-2491
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
718 So. 2d 939; 1998 Fla. App. LEXIS 12840; 23 Fla. L. Weekly D 2384
October 14, 1998, Opinion Filed
SUBSEQUENT HISTORY: [**1] Released for Publication October 30, 1998.
PRIOR HISTORY: Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert Lance Andrews, Judge; L.T. Case No. 93-17334 09.
DISPOSITION: REVERSED AND REMANDED.
COUNSEL: Kenneth W. Moffet of Moffet & Alexander, P.A., West Palm Beach, for appellant.
Walter G. Campbell, Jr. of Krupnick, Campbell, Malone, Roselli, Buser, Slama, and Hancock, P.A., Fort Lauderdale, for appellees.
JUDGES: DELL, J., GUNTHER and WARNER, JJ. concur.
OPINION BY: DELL
[*939] DELL, J.
Travent, Ltd. appeals the order granting Mark and Karen Schecters’ Motion for Judgment in Accordance with Motion for Directed Verdict and Motion for New Trial. Travent contends that the trial court erred when it granted the Schecters’ motion for directed verdict because they signed an agreement that released their claims. Travent also contends that the trial court erred when it granted the new trial because the Schecters waived any error concerning the admission of the release and invited any error in the jury instructions. We reverse.
The Schecters filed suit alleging that Travent’s negligence in the operation of bicycle tours caused serious injuries [**2] to Mark Schecter when the front wheel of the bicycle he rode fell off. 1 In its amended answer, Travent submitted the document signed by the Schecters, providing in pertinent part,
1 The Schecters also filed suit against Travel Center of Broward, Inc. d/b/a Compass-McQuade Travel. Travel Center is not a party to this appeal.
AGREEMENT: I have read and do understand Cycling Safely stated on the other [*940] side, and agree to follow [the safety precautions stated therein]. In consideration of being permitted to participate in a tour operated by TRAVENT International and TRAVENT Ltd., I do for myself, my heirs, legal representatives and assigns hereby release, waive and discharge TRAVENT International and TRAVENT Ltd., its agents and employees from all liability to myself, my heirs, legal representatives and assigns for any and all loss or damage on account of injury to my person or property, whether caused by negligence or otherwise, while participating in the tour. Furthermore, I assume full responsibility for [**3] the risk of bodily injury, death or property damages while participating in said tour.
Both parties moved for directed verdicts based on the release. The court denied the motions.
The jury found that the agreement signed by the Schecters released Travent from “any acts of negligence,” and that there was no negligence on Travent’s part legally causing damage to the Schecters. Thereafter, the Schecters filed a Motion for Judgment in Accordance with the Motion for Directed Verdict and a Motion for Mistrial, or in the alternative, a Motion for a New Trial. After a hearing, Judge Robert L. Andrews, successor to Judge Levon Ward, concluded,
The Release was insufficient to preclude liability on the part of the Defendant [Travent] . . . . [and that] because the Release contains no specific and unambiguous language asserting that the Defendant cannot be sued for its own negligence, the Plaintiffs were entitled to a Motion for Directed Verdict on the Release as a matter of law.
(emphasis in original). The trial court granted the Schecters’ motion for directed verdict, denied the motion for mistrial, and granted their motion for a new trial.
Travent argues that the trial [**4] court erred when it granted the Schecters’ motion for a directed verdict because their claims were barred by the release. We agree and reverse. In granting the directed verdict, the trial court relied on Zinz v. Concordia Properties, Inc., 694 So. 2d 120 (Fla. 4th DCA 1997). In Zinz, a premises liability case, the document signed by appellants provided that
“the undersigned agree to indemnify and hold Concordia … harmless” and that: the undersigned agree that Concordia … shall in no way be responsible for the action of the undersigned in the access to Villa Mare and/or Villa Costa, nor shall Concordia and the Town of Highland Beach be liable for damages arising out of any activities in which the undersigned are so involved.
Id. at 121. This court concluded that “the general terms ‘indemnify … against any and all claims’ did not sufficiently disclose the intention to indemnify against the negligence of the indemnitee.” Id. Here, the agreement specifically refers to Travent and states that the signator does release, waive and discharge TRAVENT International and TRAVENT Ltd., its agents and employees from all liability to myself, my heirs, legal representatives [**5] and assigns for any and all loss or damage on account of injury to my person or property, whether caused by negligence or otherwise, while participating in the tour.
The Schecters cite Witt v. Dolphin Research Center, Inc., 582 So. 2d 27 (Fla. 3d DCA 1991), where the trial court found that an action was barred by the terms of a release and awarded summary judgment in favor of the appellee. Id. The Third District Court of Appeal held, “Since there is no specific reference in the release to the appellee’s ‘negligence’ at all, it is clear that, as a matter of law, they provide no defense to the negligence claim in this case, and that the judgment must therefore be reversed for trial on that ground.” Id.
The Schecters also argue that the trial court’s directed verdict should be affirmed based on Van Tuyn v. Zurich American Insurance Co., 447 So. 2d 318 (Fla. 4th DCA 1984). In Van Tuyn, the appellant sued appellee for injuries she sustained after falling from a mechanical bull. Prior to riding the mechanical device, she signed a written waiver providing in pertinent part,
I hereby voluntarily release, waive, and discharge CLUB DALLAS, [**6] Marr Investments, [*941] Inc., their lessors, heirs successors and/or assigns from any and all claims, demands, damages and causes of action of any nature whatsoever which I, my heirs, my assigns, or my successors may have against any of them for, on account of, or by reason of my riding or attempting to ride this Bucking Brama Bull.
Id. at 320. This court concluded that the agreement in Van Tuyn “is devoid of any language manifesting the intent to either release or indemnify Club Dallas, Marr Investments, Inc., for its own negligence. Therefore, the agreement does not, as a matter of law, bar the Appellant’s recovery.” Id.
In Van Tuyn, the written waiver did not state that it released the subject parties from negligent acts. The release signed by the Schecters differs from that in Witt and Van Tuyn because it releases Travent “for any and all loss or damage on account of injury to my person or property, whether caused by negligence or otherwise, while participating in the tour.”
We find merit in Travent’s argument that the release signed by the Schecters should be considered in light of this court’s decision in Banfield v. Louis, 589 So. 2d 441 (Fla. 4th [**7] DCA 1991). In Banfield, before competing in a triathlon, the appellant completed and signed the official entry form:
In consideration for the acceptance of my entry, I, for my heirs, executors and administrators, release and forever discharge the United States Triathlon Series (U.S.T.S.), CAT Sports, Inc., Anheuser-Busch, the Quaker Oats Company, the city, county, state or district where the event is held and all sponsors, producers, their agents, representatives, successors and assigns of all liabilities, claims, actions, damages, costs or expenses which I may have against them arising out of or in any way connected with my participation in this event, including travel to or from this event, and including injuries which may be suffered by me before, during or after the event. I understand that this waiver includes any claims based on negligence, action or inaction or any of the above parties.
Id. at 443. The trial court concluded that the waiver provision in Banfield barred appellant’s negligence claims against the sponsors, organizers, and promoters, and therefore granted summary final judgment in favor of appellees. Id. at 443-44. This court stated that [HN1] waivers [**8] or exculpatory clauses are “valid and enforceable in Florida if the intent to relieve a party of its own negligence is clear and unequivocal,” id. at 444, and affirmed the summary judgment because “when Banfield signed the waiver, she knew that she was releasing all of the sponsors and promoters, as well as their agents, from liability.” Id. at 445.
As in Banfield, the subject agreement provided that the Schecters were releasing Travent, its agents, and its employees from liability, “whether caused by negligence or otherwise.” There is no meaningful difference between the language used in the subject release from that considered by this court in Banfield. Therefore, the language in the subject release must be interpreted to mean that the Schecters released, waived, and discharged Travent International, Travent, Ltd. and its agents and employees from all liability, caused by their own negligence or otherwise.
We hold that the trial court erred when it granted the Schecters’ motion for directed verdict and ordered a new trial. We further hold that the trial court should have granted Travent’s motion for directed verdict. Accordingly, we reverse the order granting [**9] the directed verdict in favor of the Schecters and ordering the new trial. We remand this cause to the trial court to enter judgment in favor of Travent. Our holding makes it unnecessary to discuss Travent’s remaining point on appeal.
REVERSED AND REMANDED.
GUNTHER and WARNER, JJ. concur.
Gamze v Camp Sea-Gull, Inc., 2012 Mich. App. LEXIS 1227 (Mich App 2012)
JONATHAN C. GAMZE, as Next Friend for JULIE GAMZE, a Minor, Plaintiff-Appellant, v CAMP SEA-GULL, INC. and WILLIAM P. SCHULMAN, Defendants-Appellees, and EMILY LISNER, Defendant.
COURT OF APPEALS OF MICHIGAN
2012 Mich. App. LEXIS 1227
June 21, 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. 09-054822-NO.
CORE TERMS: camper, flag, flagpole, towel, capture, foreseeable, premises liability, team’s, material fact, circle, lying, pole, matter of law, genuine issues, proximate cause, proximately, counselor, favorable, causation, grabbing, owed, top, pick, order granting, negligence claim, final order, proper instructions, dangerous condition, foreseeability, depositions
JUDGES: Before: WILDER, P.J., and HOEKSTRA and BORRELLO, JJ.
In this case, plaintiff appeals from an order granting summary disposition in favor of defendants1 Camp Sea-Gull, Inc. (the Camp) and William Schulman, a part-owner and associate director of the Camp, on plaintiff’s claims of negligence and premises liability. Because genuine issues of material fact remain regarding plaintiff’s negligence claim, we affirm in part, reverse in part, and remand.2
1 Emily Lisner was dismissed by stipulation and is not involved in this appeal. Thus, our reference to “defendants” will refer to appellees.
2 Defendants have raised a question as to this Court’s jurisdiction over the appeal. Plaintiff filed the initial appeal of the order granting summary disposition before Lisner had been dismissed from the case. Accordingly, this Court dismissed the appeal for lack of jurisdiction. Gamze v Camp Sea-Gull, Inc, unpublished order of the Court of Appeals, entered July 13, 2010 (Docket No. 298202). We informed plaintiff, however, that he could seek to appeal the grant of summary disposition by filing a delayed application for leave under MCR 7.205(F). Defendants [*2] subsequently requested that the trial court tax their costs against plaintiff. On July 29, 2010, the trial court denied this motion except for a $20 motion fee. Plaintiff then filed the current appeal. The arguments on appeal do not concern the motion for costs but, instead, are exclusively aimed at the trial court’s decision to grant the motion for summary disposition.
When an appeal of right is dismissed for lack of jurisdiction or is not timely filed, an appellant may file an application for leave to appeal up to 12 months after entry of the final order to be appealed. MCR 7.205(F)(1) and (F)(3). Plaintiff filed this appeal on August 2, 2010, less than 12 months after May 21, 2010. Given the trial court’s notation in the orders below concerning which order was–or was not–intended as the final order in this case, we treat plaintiff’s claim of appeal as an application for leave and hereby grant it. MCR 7.205(D)(2); see also In re Morton, 258 Mich App 507, 508 n 2; 671 NW2d 570 (2003).
I. BASIC FACTS
Julie Gamze and defendant Emily Lisner were both campers at the Camp in the summer of 2007. As part of a “Pirate Day” on July 15, 2007, the Camp organized a game of capture the flag on a [*3] large field divided into two halves. In the middle of each half was a circle, and in the middle of the circle was a five-foot tall flagpole3 with a colored flag on top. While the object of the game was to “capture” the opposing team’s “flag,” the “flag” to be seized was actually a piece of cloth or towel lying on the ground at the base of the flagpole. Participants were not supposed to attempt to capture the flag on top of the pole or the pole itself. Lisner testified that no one told her that the flagpole flag was not the correct flag to capture, and the counselor who explained the rules does not remember if she clarified that point. In the course of the game, Lisner grabbed the flagpole and began running with it. Gamze was running nearby, being chased by another camper, and the metal stake at the bottom end of the flagpole hit her in the mouth. She lost one tooth, and three others were broken.
3 The flagpole also had a metal tapered end or “stake” so it could be inserted and anchored into the ground.
Plaintiff filed suit against defendants, alleging negligence and premises liability. The trial court granted defendants’ motion for summary disposition and stated the following at the hearing:
I [*4] can’t see where the camp and Mr. Schulman did anything wrong. I can’t see where this individual’s grabbing of the marker was a foreseeable event by the camp and those in charge of this particular camp and the camp’s owner.
Anything that they did or failed to do was not the proximate cause of this Plaintiff’s injury. And, I don’t believe there is any material facts that are in dispute that would prevent the granting for the Motion for Summary Disposition under [MCR 2.116(C)(10)]. So that’s my ruling.
II. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision on a motion for summary disposition. Auto Club Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2001). When reviewing a motion brought under MCR 2.116(C)(10), we consider the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Brown v Brown, 478 Mich 545, 551-552; 739 NW2d 313 (2007). A grant of summary disposition “is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Id. at 552.
The elements of a negligence claim are “(1) a duty [*5] owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.” Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). It is not entirely clear which element(s) the trial court found to be deficient in plaintiff’s claim. While only explicitly referencing causation, the trial court’s statement seemed to encompass three of the elements: duty (“I can’t see where this individual’s grabbing of the marker was a foreseeable event . . . .”; breach (“I can’t see where the [defendants] did anything wrong.”; and causation (“[a]nything that they did or failed to do was not the proximate cause of this Plaintiff’s injury.”). With the damages element not being disputed, we will address the remaining three elements.
The question of whether a defendant owes a plaintiff a duty of care is a question of law. Cummins v Robinson Twp, 283 Mich App 677, 692; 770 NW2d 421 (2009). When determining whether a duty should be imposed, the ultimate inquiry is “whether the social benefits of imposing a duty outweigh the social costs of imposing a duty.” In re Certified Question from Fourteenth Dist Court of Appeals of Texas, 479 Mich 498, 505; 740 NW2d 206 (2007). “This inquiry [*6] involves considering, among any other relevant considerations, the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.” Id. (quotation marks omitted). But the most important factor is the relationship of the parties. Id.
Here, we conclude that defendants owed Gamze a duty to provide proper instructions for the game of “capture the flag.” In 2007, Gamze was a summer camper at the Camp. She and her family entrusted defendants with her safety during her stay. It was foreseeable that if the campers were not properly instructed, then a camper could pick up the actual flagpole instead of picking up the flag/towel lying on the ground next to the flagpole. It is also foreseeable that, if a camper did remove the flagpole from the ground, the camper could injure another camper while running with the pole.4 Finally, the burden to properly instruct the campers to pick up the towel from the ground is negligible.
4 This is especially foreseeable when the opposing team’s goal is to pursue and tag the flag carrier.
Once the existence of a duty toward Gamze is established, the reasonableness of the defendant’s conduct is a question [*7] of fact for the jury. Arias v Talon Development Group, Inc, 239 Mich App 265, 268; 608 NW2d 484 (2000). Thus, the next question is whether there is a genuine issue regarding whether defendants breached this duty by failing to provide the proper instructions.
In support of their motion for summary disposition, defendants provided, inter alia, the unsworn “statements” from two people who were camp counselors at the time of the accident. However, these statements do not comply with the requirements of MCR 2.116(G)(2) since they are not “affidavits, depositions, admissions, or other documentary evidence,” and consequently cannot be considered. Marlo Beauty Supply, Inc v Farmers Ins Group of Cos, 227 Mich App 309, 321; 575 NW2d 324 (2009). Moreover, even if the statements were considered, they would not support granting defendants’ motion for summary disposition. The first statement was by Leah Glowacki, who was the programming counselor at the time of the incident. With regard to the instructions, she stated, “I instructed the campers to attempt to obtain the flag that was inside the circle on the opposite side of the field from where their team was stationed.” This statement does not establish [*8] that the correct instructions were given. In fact, when viewing the statement in a light most favorable to plaintiff, one could conclude that Glowacki’s instructions might possibly have been construed by at least some campers as a directive to remove the flag itself instead of the towel on the ground. The other statement was provided by Stephanie Plaine, who stated that she instructed the campers “to capture the team’s flag on the other side of the field which was located inside the circles drawn onto the grass.” Again, this statement does not specify that the instruction was to get the towel lying next to the flag.
Defendants did properly submit the depositions of six people, however. But none of the submitted testimony indicated that the campers were instructed to ignore the flagpole and only pick up the towel on the ground: Gamze could not recall what specific instructions were given; Lisner testified that she did not hear any specific instructions to take the towel on the ground instead of the pole itself; Jack Schulman and William Schulman both admitted that they did not hear the instructions that Glowacki and Plaine provided; Marsha Schulman admitted that she was not present when [*9] the instructions were given; and Plaine, herself, testified that she could not recall the specifics of the instructions that she gave. Therefore, when viewing all of this evidence in a light most favorable to plaintiff, there is a question of material fact on whether the Camp instructed the campers to only take the towel lying at the base of the flagpole instead of the flag or flagpole itself.
Finally, the trial court indicated that it found as a matter of law that defendants could not have proximately caused plaintiff’s injuries. But proximate cause is a factual question for the jury unless reasonable minds could not differ. Lockridge v Oakwood Hosp, 285 Mich App 678, 684; 777 NW2d 511 (2009). Proximate cause normally involves examining the foreseeability of consequences and whether a defendant should be held liable for those consequences. Campbell v Kovich, 273 Mich App 227, 232; 731 NW2d 112 (2006). Here, a reasonable juror could have concluded that a failure to instruct the campers properly could foreseeably result in an enthusiastic camper grabbing and removing the flagpole in order to “capture the flag” affixed to the top of it. And because the object of the game was for the camper [*10] to run the flag back to her team’s territory while other campers tried to tag her, a reasonable person could conclude that it was foreseeable that other campers might be hit and injured by the five-foot tall flagpole as it was being moved. Therefore, the trial court erred by holding as a matter of law that defendants could not have proximately caused Gamze’s injuries.
B. PREMISES LIABILITY
We now turn to plaintiff’s premises liability claim. Because Gamze was an invitee on the Camp’s premises, defendants owed a duty to “‘exercise reasonable care to protect [her] from an unreasonable risk of harm caused by a dangerous condition on the land.’” Benton v Dart Properties, Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006), quoting Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001) (emphasis added). Plaintiff must show that the duty was breached and that the breach proximately caused her injuries. Benton, 270 Mich App at 440.
However, Gamze was not harmed by a dangerous condition “on the land.” Instead, she was harmed when Lisner pulled the flagpole out of the ground and began running with it. The danger arose solely because of the actions of the participants and not because of [*11] an inherent condition of the premises. Thus, plaintiff’s claim properly sounds in negligence, not premises liability.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. No costs are taxable pursuant to MCR 7.219, neither party having prevailed in full.
/s/ Kurtis T. Wilder
/s/ Joel P. Hoekstra
/s/ Stephen L. Borrello
Pavane v. Marte, 37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U
Martin Pavane and Merrill Pavane, Plaintiff(s), against Samidra Marte, Oasis Community Corporation and Oasis Children’s Services, Defendant(s).
SUPREME COURT OF NEW YORK, KINGS COUNTY
37 Misc. 3d 1216A; 2012 N.Y. Misc. LEXIS 5128; 2012 NY Slip Op 52060U
August 9, 2012, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: summary judgment, bicycle, street, crossing, counselor, emergency, crosswalk, walk, emergency doctrine, triable issues of fact, stop sign, deposition, cyclist, annexed, proximate cause, red light, matter of law, emergency situation, party opposing, affirmative defense, traffic light, reasonableness, deliberation, speculative, unexpected, proceeded, favorable, surprise, sudden, pushed
[*1216A] Negligence–Emergency Doctrine.
JUDGES: [**1] Hon. Bernard J. Graham, Acting Justice.
OPINION BY: Bernard J. Graham
Bernard J. Graham, J.
The captioned lawsuit was commenced by filing of a summons and complaint on or about December 8, 2008, by plaintiffs, Martin Pavane and Merrill Pavane, against defendants Samira Marte (incorrectly identified as “Samidra Marte”), Oasis Community Corporation, and Oasis Children’s Services, LLC. Plaintiffs’ claim is a negligence action against defendants stemming from a fall at Central Park and a derivative claim on behalf of plaintiff, Merrill Pavane.
Defendants move for summary judgment pursuant to CPLR § 3212 for dismissal of the plaintiffs’ complaint alleging that there are no triable issues of fact and that defendants are free from liability pursuant to the Emergency Doctrine’.
Defendant Oasis Children’s Services, LLC (“Oasis”) is a company that runs summer enrichment programs for at-risk children in the tri-state area. They have several camp locations in New York City, including one in Central Park.
Defendant Oasis Community Corporation is a named defendant which is ostensibly related to Oasis Children’s Services, LLC.
During the summer of 2008, Oasis hired 18-year-old defendant Samira Marte [**2] (“Marte”) as a camp counselor. On August 22, 2008, Marte and another counselor, Rachel Carrion (“Carrion”), entered Central Park at 96th Street with their campers to reach a swimming pool at 110th Street. Their route required them to cross West Drive.
According to the deposition testimony of Ms. Marte, Rachel Carrion and several children crossed West Drive first. The walk signal changed to “do not walk” before Ms. Marte was able to cross with the rest of the group, so she stayed on the sidewalk with the children to wait for the light to change again. When the signal changed to “walk”, Ms. Marte followed camp guidelines and proceeded to the middle of the crosswalk to hold up her “stop/children crossing” sign. According to the deposition of Richard Thompson McKay, who is an Oasis supervisor and not a named party to the action, Oasis provided protocol training for all camp counselors on how to cross the street. Counselors are instructed to stand in the middle of the street with the stop sign before children may begin to pass. Counselors were also told that if it appears that a cyclist will not stop, then the counselors must first be “loud and verbal” and ask the cyclist to stop. If the [**3] cyclist still does not stop, then counselors must “put [their] body as best as [they] can in between bicyclist and the children that [they] have to protect.” (See Dep. of Richard Thompson McKay, pg. 11-12, annexed as Ex. “H” to the Aff. of Rodney E. Gould in support of motion for summary judgment).
Ms. Marte states that several bicyclists were traveling down West Drive and that all of them stopped for the red light except for “one person that kept going.” (See Dep. of Samira Marte, pg. 60-61, 73-74, annexed as Ex. “F” to the Aff. of Rodney E. Gould in support of motion for summary judgment). Ms. Marte observed the defendant, Martin Pavane (“Pavane”), approaching the red light on his bicycle and alleges that Mr. Pavane did not slow down. Since children were beginning to cross the street, Ms. Marte anticipated that the bicycle would collide with the crossing children and herself. In order to get Mr. Pavane to stop, Ms. Marte first waived her stop sign and yelled for him to stop. When the bicycle still did not stop or slow down, she tried to put herself in between the bicycle and the children by standing in front of the bicycle’s [***2] path. However, Ms. Marte was forced to move aside because [**4] she states that the bicycle was going too fast. She was afraid that the bicycle would run right into her and the children. Ms. Marte states that was the moment she decided to push Mr. Pavane’s arm with the stop sign (Marte Dep. pg. 74-77).
In opposition to the defendants’ motion for summary judgment, plaintiffs argue that the defendants failed to include the Emergency Doctrine’ as an affirmative defense in their answer.
However, where the party opposing summary judgment has knowledge of the facts relating to the existence of an emergency and would not be taken by surprise with the use of the emergency defense, the doctrine does not have to be pleaded as an affirmative defense (see Bello v. Transit Auth. of NY City, 12 AD3d 58, 61, 783 N.Y.S.2d 648 (2nd Dept. 2004)). Here, plaintiffs cannot claim that they were taken by surprise by defendants’ emergency defense. The depositions provide full descriptions of facts describing an emergency situation.
A common law emergency doctrine is recognized in New York and it applies “when an actor is faced with a sudden and unexpected circumstance that leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so [**5] disturbed that the actor must make a speedy decision without weighing alternative courses of conduct. [The] actor may not be negligent if the actions taken are reasonable and prudent in the emergency context”. (Caristo v. Sanzone, 96 NY2d 172, 174, 750 N.E.2d 36, 726 N.Y.S.2d 334 (2001) (citing Rivera v. New York City Tr. Auth., 77 NY2d 322, 327, 569 N.E.2d 432, 567 N.Y.S.2d 629 (1991); see also Marks v. Robb, 90 AD3d 863, 935 N.Y.S.2d 593 (2nd Dept. 2011)). The depositions show that Marte was confronted with a sudden and unexpected emergency circumstance that left her with little time for deliberation. The evidence is credible that Marte pushed Pavane from his bicycle in order to prevent children from getting injured.
Ordinarily, the reasonableness of a party’s response to an emergency situation will present questions of fact for a jury, but it may be determined as a matter of law in appropriate circumstances (Bello v. Transit Auth. of NY City, 12 AD3d at 60; see also Koenig v. Lee, 53 AD3d 567, 862 N.Y.S.2d 373 (2nd Dept. 2008); Vitale v. Levine, 44 AD3d 935, 844 N.Y.S.2d 105 (2nd Dept. 2007)).
In this case, defendants seek an award of summary judgment dismissing the plaintiffs’ claim which would require a determination by this Court that, as a matter of law, the actions taken by Ms. Marte were reasonable [**6] and did not present a question which should be presented to a jury. Although summary judgment is a drastic remedy, a court may grant summary judgment when the moving party establishes that there are no triable issues of material fact (see Rotuba Extruders v. Ceppos, 46 NY2d 223, 385 N.E.2d 1068, 413 N.Y.S.2d 141 (1978); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 144 N.E.2d 387, 165 N.Y.S.2d 498 (1957)).
Rachel Carrion, the co-counselor who is not a named party to the action, testified that she saw Pavane ride his bicycle towards the crosswalk where herself and Marte were crossing the street with children from the Oasis summer camp (see Carrion Dep. pg. 8-9 annexed to Gould [***3] Aff. in support of motion for summary judgment). Carrion testified that Pavane was approaching them “at [a] speed” and “would not stop” (Carrion Dep. pg. 10). The testimony of Ms. Carrion is completely consistent and corroborative of Ms. Marte’s testimony. Ms. Marte stated that Mr. Pavane was not going to stop and was about to hit the four children who were crossing in the crosswalk (Marte Dep. pg 61).
The majority of Pavane’s testimony consists of mere speculative and conclusory assertions because he claims to not recall most details. For example, Pavane did not recall [**7] whether he saw children on the street (see Pavane Dep. pg. 17, annexed to the Aff of Leon Sager in opposition to the motion for summary judgment), but states that “it’s certainly possible there were people there.” (Pavane Dep. pg. 17). Carrion testified that there definitely were children on both sides of the crosswalk and some crossing in the middle before Marte pushed Pavane off his bicycle (Carrion Dep. pg. 11). Pavane also does not recall whether Marte was holding a “stop, children crossing” sign or whether she was waving at him, but he does remember Marte being a young woman in her teens (Pavane Dep. Pg. 17), who was “doing something with her hands at the particular time when she stepped in front of [him]” (Pavane Dep. pg. 18).
In reviewing the offered testimony in support of the motion and the opposition to the motion, the evidence submitted must be viewed in the light most favorable to the party opposing the motion (see Branham v. Loews Orpheum Cinemas, Inc., 8 NY3d 931, 866 N.E.2d 448, 834 N.Y.S.2d 503 (2007)). Even assessing the available evidence in a light most favorable to Mr. Pavane, a neutral reading of the evidence would support a conclusion that Ms. Marte and the children were crossing the street with [**8] the “walk” sign in their favor; that Ms. Marte was positioned with her stop sign at the cross walk; and that Mr. Pavane was cycling into the crosswalk against the traffic light.
While this Court is hesitant to declare the actions of any party in an alleged tort claim to be reasonable as a matter of law, in certain cases, such as this, summary judgment may be appropriate. (see Bello v. Transit Auth. of NY City, 12 AD3d 58, 783 N.Y.S.2d 648 (2004). The actions of the defendant, Marte, must be considered reasonable given the emergency she faced and the potentially harmful consequences to the children she was protecting. It is also apparent that Mr. Pavane proceeded into the intersection against the traffic light and, would fairly be considered to be the proximate cause of his injury. Where it is clear that the plaintiff’s actions were the sole proximate cause of the accident, plaintiff’s mere speculative assertions that defendant may have failed to act properly is insufficient to raise a triable issue of fact to defeat a summary judgment motion. (see Goff v. Goudreau, 222 AD2d 650, 650, 635 N.Y.S.2d 699 (2nd Dept. 1995); Vitale v. Levine, 44 AD3d 935, 844 N.Y.S.2d 105 (2nd Dept. 2007)).
It is the finding of this Court that Mr. Pavane’s [**9] own failure to stop at the red light and yield to children crossing the street was the sole proximate cause of the incident. The actions of the camp counselor, Ms. Marte, in the context of crossing the street with young children who she feared would be injured by the cyclist can only be considered reasonable and appropriate in the given circumstances. Mr. Pavane has not offered evidence which would raise a triable issue of fact as to the reasonableness of Ms. Marte’s actions and to subject the defendants here to the expenses of a trial on this matter would be exceedingly unjust.
Accordingly, defendants’ motion for summary judgment is granted and the plaintiff’s complaint is dismissed.
This shall constitute the decision and order of this Court.
Dated: August 9, 2012
Hon. Bernard J. Graham, Acting Justice
Supreme Court, Kings CountyBottom of Form
Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501
Teresa Perry, Appellant-Plaintiff, vs. Whitley County 4-H Clubs Inc., Appellee-Defendant.
Court Of Appeals Of Indiana
931 N.E.2d 933; 2010 Ind. App. LEXIS 1501
August 16, 2010, Decided
August 16, 2010, Filed
PRIOR HISTORY: [**1]
APPEAL FROM THE WHITLEY CIRCUIT COURT. The Honorable James R. Heuer, Judge. Cause No. 92C01-0809-CT-652.
COUNSEL: ATTORNEY FOR APPELLANT: SARAH E. RESER, Glaser & Ebbs, Fort Wayne, Indiana.
ATTORNEY FOR APPELLEE: CARRIE KOONTZ GAINES, Kopka, Pinkus Dolin & Eads, L.L.C., Mishawaka, Indiana.
JUDGES: ROBB, Judge. FRIEDLANDER, J., and KIRSCH, J., concur.
OPINION BY: ROBB
[*934] OPINION – FOR PUBLICATION
Case Summary and Issue
Teresa Perry appeals the trial court’s entry of summary judgment in favor of Whitley County 4-H Clubs, Inc. (the “4-H Club”) on Perry’s negligence complaint for personal injuries suffered during a horse competition sponsored by the 4-H Club. For our review, Perry raises two issues, which we consolidate and restate as whether the trial court properly granted summary judgment based on the Indiana Equine Activity Statute. Concluding there is no genuine issue of material fact and the Equine Activity Statute bars Perry’s claim for injuries resulting from inherent risks of equine activities, we affirm.
Facts and Procedural History
The undisputed facts and those most favorable to Perry as the non-movant are as follows. At all relevant times, Perry, an adult, was a member of the 4-H Clubs Equine Advisory [**2] Board, which provides guidance and instruction to children participating in the 4-H Club’s horse events, and was herself a regular participant in those [*935] events. Perry was also the owner of seven horses. In July 2007, the 4-H Club held horse practices and competitions at the Whitley County Fairgrounds as part of the Whitley County Fair. These events were generally held in the 4-H Club’s Horse Barn, but one event, the Large Animal Round Robin Competition, was held in the 4-H Club’s Show Barn, located next to the Horse Barn. The Horse Barn is over 100 feet wide but the Show Barn is approximately thirty-six feet wide along its shorter side. Horses were generally familiar with the Horse Barn but unfamiliar with the Show Barn, where they were “not allowed any other time” besides the Round Robin Competition. Appellant’s Appendix at 88. At all entrances to the Horse Barn, the 4-H Club had posted “Equine Activity warning signs” that were “clearly visible.” Id. at 18-19 (affidavit of Bill Leeuw, 4-H Club’s President of the Board).
On July 25, 2007, the Round Robin Competition was held. The Equine Advisory Board and volunteers selected the horses to be shown, and Perry herself selected one of those [**3] horses “at the last minute.” Id. at 93. Perry was present at the Round Robin Competition as an Equine Advisory Board member responsible for the safety of children handling the horses. As part of the event, seven horses were led from the Horse Barn into the Show Barn and lined up approximately two and one-half feet apart along the shorter side of the Show Barn. The horses were then turned over to children who did not normally handle horses but had experience handling animals such as pigs and cows and had received brief instruction on how to handle a horse. After one of the children finished leading a horse through a series of maneuvers, the child left the horse facing away from the center of the Show Barn, in the opposite direction from the neighboring horses and with its rear next to the head of a neighboring horse. The horse facing backwards began sniffing the rear of the neighboring horse, which pinned its ears against its head as a sign it was agitated. Perry realized this situation posed a danger to the child handling the horse facing backwards. Perry therefore approached the child and told the child to turn the horse around. As the child was doing so, the neighboring horse kicked [**4] Perry in the knee. Perry was thrown back and suffered personal injuries.
In September 2008, Perry filed a complaint against the 4-H Club alleging her injuries were caused by the 4-H Club’s negligence in “allowing horse activities to be conducted on premises unsuitable for such activities.” Id. at 6. As specifically argued by Perry at the summary judgment hearing, she alleged the 4-H Club was negligent in deciding to hold the Round Robin Competition in the Show Barn instead of the Horse Barn, as the smaller Show Barn “requires horses to be placed close together, increasing the chances that a child near the horse will be injured by one. It’s also an environment the horses aren’t familiar with, which makes it more likely that a horse will get spooked and kick someone.” Transcript at 4. Among the 4-H Club’s affirmative defenses, it alleged in its answer that Perry’s claim was barred by the Indiana Equine Activity Statute.
The 4-H Club filed a motion for summary judgment based in part on the Equine Activity Statute. Following a hearing, the trial court on January 27, 2010, issued its order granting summary judgment to the 4-H Club. The trial court found and concluded in relevant part:
14. [**5] The [4-H Club] was a sponsor of an equine activity when the accident occurred.
15. [Perry] was a participant in the equine activity in her capacity as a safe [*936] keeper when she approached the horses and was kicked.
16. The Equine Activities Act . . . is applicable to this case.
17. Being kicked by a horse is an inherent risk of equine activity.
18. There is no evidence in the designation of material facts that [the 4-H Club] committed an act or omission which constituted a reckless disregard for the safety of [Perry] or that any other conditions set in [Indiana Code section] 34-31-5-2 existed at the time of the accident.
Appellant’s App. at 5. Perry now appeals.
Discussion and Decision
I. Standard of Review
[HN1] We review a summary judgment order de novo. Tri-Etch, Inc. v. Cincinnati Ins. Co., 909 N.E.2d 997, 1001 (Ind. 2009). In so doing, we stand in the same position as the trial court and must determine whether the designated evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009). In making this determination, we construe [**6] the evidence in a light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine factual issue against the moving party. N. Ind. Pub. Serv. Co. v. Bloom, 847 N.E.2d 175, 180 (Ind. 2006). Our review of a summary judgment motion is limited to those materials designated by the parties to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). The movant has the initial burden of proving the absence of a genuine factual dispute as to an outcome-determinative issue and only then must the non-movant come forward with evidence demonstrating genuine factual issues that should be resolved at trial. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994).
Because this case turns on the proper application of the Equine Activity Statute, we also recite our well-established standard of review for interpretation of statutes:
[HN2] When courts set out to construe a statute, the goal is to determine and give effect to the intent of the legislature. The first place courts look for evidence is the language of the statute itself, and courts strive to give the words their plain and ordinary meaning. [**7] We examine the statute as a whole and try to avoid excessive reliance on a strict literal meaning or the selective reading of individual words. We presume the legislature intended the language used in the statute to be applied logically, consistent with the statute’s underlying policy and goals, and not in a manner that would bring about an unjust or absurd result.
Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1283 (Ind. 2009) (citations omitted).
II. Equine Activity Statute
A. Warning Signs
Perry argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether the 4-H Club complied with the warning sign requirements of the Equine Activity Statute. We address this sub-issue first because it bears on the threshold applicability of the Equine Activity Statute as a bar to Perry’s claim. See Ind. Code § 34-31-5-3(a) (providing [HN3] “[t]his chapter does not apply unless” equine activity sponsor has posted at least one complaint warning sign). In response to Perry’s argument, the 4-H Club initially [*937] contends Perry waived the argument by not raising it to the trial court prior to the summary judgment hearing. We disagree. In general, arguments [**8] by an appellant are waived if not presented to the trial court on summary judgment, see Cook v. Ford Motor Co., 913 N.E.2d 311, 322 n.5 (Ind. Ct. App. 2009), trans. denied, and summary judgment may not be reversed on the grounds of a genuine factual issue “unless the material fact and the evidence relevant thereto shall have been specifically designated to the trial court,” T.R. 56(H). However, Perry did argue at the summary judgment hearing that the evidence designated by the 4-H Club was insufficient to establish its compliance with the warning sign requirements of the Equine Activity Statute. Moreover, this issue was already before the trial court based upon the 4-H Club’s motion for summary judgment and designation of material facts.
Proceeding to Perry’s claim, [HN4] the Equine Activity Statute provides that an equine activity sponsor, as a condition precedent to immunity under the statute, must post and maintain a warning sign in at least one location “on the grounds or in the building that is the site of an equine activity.” Ind. Code § 34-31-5-3(a)I. The sign “must be placed in a clearly visible location in proximity to the equine activity,” and the warning must be printed in black [**9] letters at least one inch in height. Ind. Code § 34-31-5-3(b), (c). The warning must state: “Under Indiana law, an equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.” Ind. Code § 34-31-5-5.
The undisputed evidence is that the 4-H Club, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the Horse Barn, and the signs were “clearly visible.” Appellant’s App. at 18-19. The 4-H Club’s equine activities were regularly held inside the Horse Barn, except for the Round Robin Competition held in the Show Barn located next to the Horse Barn. Perry acknowledged in her deposition she had seen “those signs” on the Horse Barn, id. at 114, and did not designate any evidence the signs were absent on the day of the incident or lacked the specific warning required by Indiana Code section 34-31-5-5. Perry argues, in effect, that because the only photographs the 4-H Club properly designated to the trial court do not directly show the signs contained the specific warning required, 1 the 4-H Club did not meet its burden of making a prima facie case of compliance [**10] with the statute. We decline Perry’s invitation to, in effect, interpret the Equine Activity Statute to require an equine activity sponsor to submit such photographic or documentary evidence in order to support its claim of immunity. Rather, we conclude the affidavit the 4-H Club properly designated established its prima facie case that it maintained proper warning signs, such that the burden shifted to Perry to come forward with evidence the signs were deficient. Because she did not do so, there is no genuine issue of fact as to the warning signs, and the trial court [*938] properly concluded the Equine Activity Statute applies to this case.
1 The parties dispute, and it is unclear from the record, whether a photograph identified as Defendant’s Exhibit A at Perry’s deposition, and allegedly included along with the deposition in the 4-H Club’s designation of evidence, was actually part of the designated material submitted to the trial court. That photograph, unlike those included as the 4-H Club’s Exhibit C in support of summary judgment and to which the 4-H Club referred at the summary judgment hearing, shows a warning sign containing the text specified in Indiana Code section 34-31-5-5.
B. [**11] Inherent Risk of Equine Activities
Perry also argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether her injuries resulted from an inherent risk of equine activities. The Equine Activity Statute provides:
[HN5] Subject to section 2 of this chapter, an equine activity sponsor or equine professional is not liable for:
(1) an injury to a participant; or
(2) the death of a participant;
resulting from an inherent risk of equine activities.
Ind. Code § 34-31-5-1(a). 2 [HN6] The definition of “inherent risks of equine activities” is:
the dangers or conditions that are an integral part of equine activities, including the following:
(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.
(2) The unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals.
(3) Hazards such as surface and subsurface conditions.
(4) Collisions with other equines or objects.
(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the [**12] animal or not acting within the participant’s ability.
Ind. Code § 34-6-2-69. The Equine Activity Statute further provides:
[HN7] Section 1 of this chapter does not prevent or limit the liability of an equine activity sponsor . . .:
(A) provided equipment or tack that was faulty and that caused the injury; and
(B) knew or should have known that the equipment or tack was faulty;
(2) who provided the equine and failed to make reasonable and prudent efforts based on the participant’s representations of the participant’s ability to:
(A) determine the ability of the participant to engage safely in the equine activity; and
(B) determine the ability of the participant to safely manage the particular equine;
(A) was in lawful possession and control of the land or facilities on which the participant sustained injuries; and
(B) knew or should have known of the dangerous latent condition that caused the injuries;
if warning signs concerning the latent dangerous condition were not conspicuously posted on the land or in the facilities;
(4) who committed an act or omission that:
(A) constitutes reckless disregard for the safety of the participant; and
(B) caused the injury; or
[*939] (5) who intentionally [**13] injured the participant.
Ind. Code § 34-31-5-2(b). As Indiana’s Equine Activity Statute has not previously been interpreted in any reported case, 3 we will cite for their persuasive value the decisions of other jurisdictions that have interpreted similar statutes.
2 “Equine activity,” pursuant to its statutory definition, includes among other things “[e]quine shows, fairs, competitions, performances, or parades that involve equines.” Ind. Code § 34-6-2-41(a). “Equine activity sponsor” means “a person who sponsors, organizes, or provides facilities for an equine activity.” Ind. Code § 34-6-2-42. Perry does not dispute that the 4-H Club qualifies as an equine activity sponsor.
3 In Anderson v. Four Seasons Equestrian Center, Inc., 852 N.E.2d 576 (Ind. Ct. App. 2006), trans. denied, the only reported case citing the Equine Activity Statute, this court affirmed summary judgment for the defendant on the alternative grounds of waiver and release of liability. Id. at 585. We concluded the waiver applied because the plaintiff’s fall from a horse that moved while the plaintiff was attempting to mount it resulted from a risk “inherent in the nature of the activity of horse riding.” Id. at 584. However, [**14] we did not explicitly base that conclusion upon the text of the Equine Activity Statute.
Perry’s argument is that a reasonable trier of fact could find the cause of her injury was not an inherent risk of equine activities, but negligence of the 4-H Club in staging the Round Robin Competition. Perry makes no argument that any of the exceptions to immunity spelled out in Indiana Code section 34-31-5-2(b) (“Section 2(b)”) — faulty equipment or tack, provision of the equine and failure to make reasonable and prudent efforts to match the participant to the particular equine and equine activity, a latent premises defect, reckless disregard, or intentional injury — apply in this case. Therefore, we must examine whether and to what extent, consistent with the Equine Activity Statute, an equine activity sponsor may be liable for simple negligence allegedly causing injury to a participant.
Initially we note that negligence of an equine activity sponsor neither is one of the exceptions to immunity listed in Section 2(b), nor is it included in the non-exclusive list of inherent risks of equine activity under Indiana Code section 34-6-2-69. Thus, Indiana’s Equine Activity Statute, like equine activity [**15] statutes in some states but unlike some others, is silent on the place of sponsor negligence in the overall scheme of equine liability. Compare Lawson v. Dutch Heritage Farms, Inc., 502 F.Supp.2d 698, 700 (N.D. Ohio 2007) (noting Ohio’s Equine Activity Liability Act, like some other states?, is “silent as to simple negligence as an inherent risk”) (quotation omitted); with Beattie v. Mickalich, 486 Mich. 1060, 1060 784 N.W.2d 38, 2010 Mich. LEXIS 1452, 2010 WL 2756979, at *1 (Mich., July 13, 2010) (per curiam) (Michigan’s Equine Activity Liability Act abolishes strict liability for equines but expressly provides liability is not limited “‘if the . . . person . . . [c]ommits a negligent act or omission that constitutes a proximate cause of the injury?” (quoting Mich. Comp. Laws § 691.1665)). Because it is as important to recognize what a statute does not say as what it does say, City of Evansville v. Zirkelbach, 662 N.E.2d 651, 654 (Ind. Ct. App. 1996), trans. denied, and [HN8] statutes granting immunity, being in derogation of the common law, are strictly construed, see Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 281 (Ind. 1994), we conclude the Equine Activity Statute was not intended by the general assembly [**16] to abrogate the cause of action for common-law negligence of an equine activity sponsor. However, pursuant to the clear text of the statute, a negligence action is precluded if the injury resulted from an inherent risk of equine activities and the facts do not fit one of the exceptions to immunity provided by Section 2(b). Stated differently, if none of the Section 2(b) exceptions apply, then an equine activity sponsor is not liable for failing to use reasonable care to mitigate an already inherent risk of equine activities that ultimately resulted in a participant’s injury.
[*940] Turning to Perry’s claim, she was injured when unexpectedly kicked by a horse that became agitated during the 4-H Club’s Round Robin Competition. The horse became agitated because another horse was standing too close nearby and began sniffing its rear, and to remove the danger to the child handling the other horse, Perry intervened. The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways [**17] that may result in injury, harm, or death to persons on or around the equine.” Ind. Code § 34-6-2-69. Such risks directly caused Perry’s injury, in that the horse kicked as part of an unpredictable reaction to the other horse nearby and, Perry alleges, the close quarters and unfamiliar environment of the Show Barn. See Kangas v. Perry, 2000 WI App 234, 239 Wis.2d 392, 620 N.W.2d 429, 433 (Wis. Ct. App. 2000) (based on Wisconsin’s similar definition of inherent risks, concluding “horses? propensity to move without warning is an inherent risk of equine activity contemplated by the statute”), review denied. We therefore conclude Perry’s injury resulted from inherent risks of equine activities within the meaning of the Equine Activity Statute.
Perry argues the likelihood of a horse becoming agitated and kicking, and a child becoming endangered and needing to be rescued by a supervisor such as Perry, were unreasonably increased by the 4-H Club’s decision to hold the Round Robin Competition in the Show Barn, a cramped space unfamiliar to the horses. Even if that is true, however, the 4-H Club’s conduct would have contributed to Perry’s injury only by heightening the already inherent risk that a horse might [**18] behave unpredictably and in an injury-causing manner. Thus, Perry’s argument that her injury resulted not from an inherent risk of equine activities, but from the 4-H Club’s negligence in its manner of staging the Round Robin Competition, amounts to hair splitting irrelevant to the Equine Activity Statute. As explained above, the statute does not require that an equine activity sponsor’s alleged negligence in no way contribute to the injury complained of. Rather, the Equine Activity Statute only requires that, in order for immunity to apply, the injury must have resulted from broad categories of risk deemed integral to equine activities, regardless of whether the sponsor was negligent. See Ind. Code §§ 34-6-2-69; 34-31-5-1.
Perry also relies on cases from other jurisdictions that, while involving similar statutes, are distinguishable on their facts. In Steeg v. Baskin Family Camps, Inc., 124 S.W.3d 633 (Tex. App. 2003), review dismissed, the court held summary judgment for the defendant improper where there was evidence the proximate causes of the rider’s fall included the saddle slipping and the defendant’s negligent failure to secure the saddle. Id. at 639-40. In Fielder v. Academy Riding Stables, 49 P.3d 349 (Colo. Ct. App. 2002), [**19] cert. denied, the court held the defendant was not entitled to immunity where the defendant’s wranglers negligently failed to remove a screaming child from a horse, an “obvious danger” the wranglers had notice of well before the horse bolted. Id. at 351-52. Here, by contrast, there is no evidence the 4-H Club ignored an obvious, imminent danger or that Perry’s injury directly resulted from anything other than unpredictable horse behavior.
In sum, the facts viewed most favorably to Perry as the party opposing summary judgment show her injury resulted from inherent risks of equine activities and the 4-H Club was negligent, if at all, only for [*941] failing to mitigate those inherent risks. Therefore, the trial court properly concluded the Equine Activity Statute bars Perry’s claim and properly granted summary judgment to the 4-H Club.
There are no genuine issues of material fact that the 4-H Club complied with the warning sign requirements of the Equine Activity Statute and that Perry’s injury resulted from inherent risks of equine activities. Therefore, Perry’s claim is barred by the Equine Activity Statute and the trial court properly granted summary judgment to the 4-H Club.
FRIEDLANDER, [**20] J., and KIRSCH, J., concur.
Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62
April Palmer, Appellant, v. Lakeside Wellness Center, Doing Business as Alegent Health, and Precor, Inc., Appellees.
281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62
June 24, 2011, Filed
PRIOR HISTORY: [***1]
Appeal from the District Court for Douglas County: JOSEPH S. TROIA, Judge.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower court’s granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.
3. Contracts: Parties: Intent. In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them.
4. Contracts: Parties. The right of a third party benefited by a contract to sue must affirmatively appear from the language of the instrument when properly inter preted or construed.
5. Negligence: Words and Phrases. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty.
6. Negligence. Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.
7. Negligence: Summary Judgment. The issue of gross negligence is susceptible to resolution in a motion for summary judgment.
COUNSEL: Heather Voegele-Andersen and Brenda K. George, of Koley Jessen, P.C., L.L.O., for appellant.
David L. Welch and Ashley E. Dieckman, of Pansing, Hogan, Ernst & Bachman, L.L.P., for appellee Lakeside Wellness Center.
Albert M. Engles and Cory J. Kerger, of Engles, Ketcham, Olson & Keith, P.C., for appellee Precor, Inc.
JUDGES: HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, and MCCORMACK, JJ. WRIGHT and MILLER-LERMAN, JJ., not participating.
OPINION BY: HEAVICAN
[**847] [*781] Heavican, C.J.
The appellant, April Palmer, was injured while on a treadmill at Lakeside Wellness Center (Lakeside). The district court granted summary judgment in favor of Lakeside, doing business as Alegent Health, and Precor, Inc. Palmer appeals. We affirm.
Palmer and her husband joined Lakeside in November 2006. The accident occurred several months later, on March 7, 2007. On that date, Palmer approached the treadmill in question to begin her workout. Unaware that the treadmill belt was running, Palmer stepped onto the treadmill from the back and was thrown off the belt and into an elliptical training [**848] machine located behind [***2] her. During her deposition, Palmer stated that she looked at the treadmill’s control panel before getting on, but did not look at the belt of the treadmill. Palmer indicated that had she looked at the belt, she probably would have been able to see that it was operating, but that since she assumed the treadmill was off, she did not look further. According to Palmer, she thought the area was poorly lit, though she had never complained about it to any Lakeside staff members. And Palmer indicated that the facility was loud and that she was unable to hear whether the machine was operating.
This treadmill was located in a row of treadmills, and the treadmills to the right and left of the machine in question were [*782] being used at the time of the accident. In Palmer’s husband’s deposition, he testified that the woman on a neighboring treadmill told him she had been on that treadmill briefly before switching to the neighboring machine and had mistakenly thought she had turned it off.
Palmer’s Familiarity With Treadmills.
During her deposition, Palmer was asked about her exercise history and her familiarity with treadmills. Palmer testified that she and her husband had been members of other gyms prior [***3] to joining Lakeside. Palmer testified that she received instruction from a trainer after joining Lakeside, though she stated that she did not need specific instruction on how to operate a treadmill. According to Palmer’s testimony, she had been using treadmills for approximately 21 years. At the time of the accident, Palmer had been using the Lakeside facility at least 5 times a week and had used that actual treadmill 10 to 15 times total prior to the accident. Palmer also testified that she had a treadmill in her home.
Palmer’s Membership Agreement and Health History Questionnaire.
At the time Palmer and her husband became members at Lakeside, Palmer filled out and signed a membership agreement and a health history questionnaire. The membership agreement provided:
WAIVER AND RELEASE–You acknowledge that your attendance or use of [Lakeside] including without limitation to your participation in any of [Lakeside's] programs or activities and your use of [Lakeside's] equipment and facilities, and transportation provided by [Lakeside] could cause injury to you. In consideration of your membership in [Lakeside], you hereby assume all risks of injury which may result from or arise out of your [***4] attendance at or use of [Lakeside] or its equipment, activities, facilities, or transportation; and you agree, on behalf of yourself and your heirs, executors, administrators, and assigns to fully and forever release and discharge [Lakeside] and affiliates and their respective officers, directors, employees, agents, [*783] successors and assigns, and each of them (collectively the “Releasees”) from any and all claims, damages, rights of action or causes of action, present or future, known or unknown, anticipated or unanticipated, resulting from or arising out of your attendance at or use of [Lakeside] or its equipment, activities, facilities or transportation, including without limitation any claims, damages, demands, rights of action or causes of action resulting from or arising out of the negligence of the Releasees. Further, you hereby agree to waive any and all such claims, damages, demands, rights of action or causes of action. Further you hereby agree to release and discharge the Releasees from any and all liability for any loss or theft of, or damage to, personal property. You acknowledge that you have [**849] carefully read this waiver and release and fully understand that it is a waiver [***5] and release of liability.
The health history questionnaire signed by Palmer stated in relevant part as follows:
1. In consideration of being allowed to participate in the activities and programs of [Lakeside] and to use its facilities, equipment and machinery in addition to the payment of any fee or charge, I do hereby waive, release and forever discharge [Lakeside] and its directors, officers, agents, employees, representatives, successors and assigns, administrators, executors and all other [sic] from any and all responsibilities or liability from injuries or damages resulting from my participation in any activities or my use of equipment or machinery in the above mentioned activities. I do also hereby release all of those mentioned and any others acting upon their behalf from any responsibility or liability for any injury or damage to myself, including those caused by the negligent act or omission of any way arising out of or connected with my participation in any activities of [Lakeside] or the use of any equipment at [Lakeside]. . . .
2. I understand and am aware that strength, flexibility and aerobic exercise, including the use of equipment are a potentially hazardous activity. [***6] I also understand that fitness activities involve the risk of injury and even death, [*784] and that I am voluntarily participating in these activities and using equipment and machinery with knowledge of the dangers involved. I hereby agree to expressly assume and accept any and all risks of injury or death. . . .
Palmer sued Lakeside and Precor for her injuries, which generally consisted of an injured hand and chest. Both Lakeside and Precor filed motions for summary judgment, which were granted. Palmer appeals.
ASSIGNMENTS OF ERROR
Palmer assigns that the district court erred in (1) granting summary judgment in favor of Lakeside and Precor; (2) holding that the waiver and release contained in the membership agreement and health history questionnaire signed by Palmer were clear, understandable, and unambiguous; and (3) holding that Palmer assumed the risk of using the treadmill.
STANDARD OF REVIEW
 [HN1] An appellate court will affirm a lower court’s granting of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as [***7] a matter of law. 1
1 Wilson v. Fieldgrove, 280 Neb. 548, 787 N.W.2d 707 (2010).
 [HN2] In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives that party the benefit of all reasonable inferences deducible from the evidence. 2
Waiver and Release.
Palmer first argues that the district court erred in finding that the waiver and release contained in the membership agreement and health history questionnaire she completed and signed when joining Lakeside were clear, understandable, and unambiguous. We read Palmer’s argument as contending that the waivers, [**850] while perhaps applicable to instances of ordinary negligence, [*785] could not operate to relieve Lakeside or Precor from gross negligence or willful and wanton misconduct. We further understand Palmer to argue that both Lakeside and Precor committed gross negligence or willful and wanton misconduct–Precor by delivering a treadmill without proper safety features, and Lakeside by not providing adequate space or lighting around the treadmill and by modifying the treadmill’s belt such that the treadmill became unsafe.
[3,4] Before reaching the merits [***8] of Palmer’s argument, we note that contrary to Precor’s argument, Precor is not protected from liability as a result of the waivers signed by Palmer. Precor contends in its brief that it is a third-party beneficiary of these waivers. This court recently addressed a similar issue in Podraza v. New Century Physicians of Neb. 3 In Podraza, we noted that we have traditionally strictly construed who has the right to enforce a contract as a third-party beneficiary.
[HN3] In order for those not named as parties to recover under a contract as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interest of such unnamed parties were contemplated and that provision was being made for them. The right of a third party benefited by a contract to sue thereon must affirmatively appear from the language of the instrument when properly interpreted or construed.
Authorities are in accord that one suing as a third-party beneficiary has the burden of showing that the provision was for his or her direct benefit. Unless one can sustain this burden, a purported third-party beneficiary will be deemed merely incidentally benefited and will not be permitted [***9] to recover on or enforce the agreement. 4
3 Podraza v. New Century Physicians of Neb., 280 Neb. 678, 789 N.W.2d 260 (2010).
4 Id. at 686, 789 N.W.2d at 267.
A review of the record shows that Precor was not explicitly mentioned in the language of the waiver. Nor is there any other evidence that Precor was an intended third-party beneficiary. Precor has the burden to show its status as a third-party beneficiary, and it has failed to meet that burden. As such, Precor [*786] is not shielded from liability as a result of the waivers signed by Palmer.
Lakeside’s Gross Negligence or Willful and Wanton Conduct.
At oral argument, Palmer conceded that by virtue of these waivers, Lakeside was not liable to Palmer for damages caused by ordinary negligence. But, as noted above, Palmer contends that Lakeside is nevertheless liable, because its actions were grossly negligent or were willful and wanton.
Having examined the record in this case, we find that as a matter of law, Palmer’s allegations against Lakeside do not rise to the level of gross negligence. Palmer alleges that the Lakeside facility had inadequate lighting and inadequate spacing between equipment and that Lakeside’s employees modified the treadmill [***10] in question by installing a treadmill belt that did not contain markings.
[5-7] [HN4] Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty. 5 Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule. 6 [**851] The issue of gross negligence is susceptible to resolution in a motion for summary judgment. 7 We simply cannot conclude that the allegations against Lakeside–inadequate lighting and spacing and the installation of a new treadmill belt–rise to such a level. We therefore conclude that as a matter of law, any negligence by Lakeside was not gross negligence or willful or wanton conduct. As such, the district court did not err in granting Lakeside’s motion for summary judgment.
5 Bennett v. Labenz, 265 Neb. 750, 659 N.W.2d 339 (2003).
We next turn to the question of whether the district court erred in granting summary judgment in favor of Precor. Because we concluded above that the waiver signed by Palmer did not [*787] act to relieve Precor from liability, we address whether there was a genuine issue of material [***11] fact on the issue of whether Precor breached any duty it had to Palmer.
In arguing that Precor was liable, Palmer alleges that Precor breached its duty by not equipping the treadmill with (1) a safety feature that would prevent the treadmill from operating when no one was on it and (2) handrails extending down the sides toward the back of the treadmill. Palmer originally argued that Precor was also liable because the belt on its treadmill failed to contain adequate markings, but it is this court’s understanding that Palmer no longer makes such allegations with regard to Precor because the belt on the treadmill at the time of the incident was not original to the treadmill and had been installed by Lakeside.
In response to Palmer’s allegations, Precor introduced evidence in the form of an affidavit from its director of product development, Greg May. May averred that at the time of manufacture and delivery, the treadmill met or exceeded the voluntary guidelines set by the American Society for Testing and Materials in that group’s international standard specifications for motorized treadmills in all ways, including handrails. Though there was no specific feature on this treadmill designed [***12] to stop the treadmill from running when no one was operating it, the machine was manufactured with a clip to be attached to the user’s clothing. The manual for this treadmill noted that “by taking this precaution, a tug on the safety switch cord trips the safety switch and slows the running speed to a safe stop.” May also averred that the treadmill in question left Precor’s control on July 29, 1999, or over 7 years prior to the date of the incident.
In addition to May’s affidavit, Precor also introduced photographs of the treadmill at issue, which photographs showed that the treadmill did have front handrails, though not side handrails.
In an attempt to rebut May’s affidavit and show a genuine issue of material fact, Palmer introduced the affidavit of a fitness consultant. That affidavit noted in part that
based on [the consultant's] experience, in order for treadmills to meet appropriate safety standards from the late [*788] 1990s forward, treadmills should contain adequate safety features, emergency/safety stop mechanisms, warning labels, and markings on a treadmill belt. A treadmill should contain a safety stop mechanism such that the treadmill will turn off if no one is currently on the [***13] treadmill, adequate handrails extending towards the back of the treadmill and warning labels at the rear of the treadmill.
Even after drawing all reasonable inferences in favor of Palmer, we conclude that there is no genuine issue of material fact as to Precor’s alleged breach of duty. While the fitness consultant’s affidavit indicates that treadmills “should” contain [**852] various safety features, he does not speak in absolutes and does not refer specifically to this treadmill. On the other hand, May’s affidavit references the treadmill at issue in this case and details the safety features this treadmill possessed, as well as Precor’s compliance with all applicable, though voluntary, safety standards when manufacturing the treadmill. Because the record affirmatively shows that Precor did not breach any duty it owed to Palmer, we conclude that the district court did not err in granting Precor’s motion for summary judgment.
Assumption of Risk.
Palmer also argues that the district court erred in finding that she assumed the risk of injury when she used the treadmill. Because we conclude that the district court did not err in granting Lakeside’s and Precor’s motions for summary judgment for the [***14] foregoing reasons, we need not address Palmer’s assignment of error regarding the assumption of the risk.
The district court’s order granting summary judgment in favor of Lakeside and Precor is affirmed.
Wright and Miller-Lerman, JJ., not participating.
Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386
Lisa Courbat and Steven Courbat, Plaintiffs-Appellants, vs. Dahana Ranch, Inc., Defendant-Appellee, and John Does 1-10, Jane Does 1-10, Doe Associations 1-10, Doe Partnerships 1-10, Doe Corporations 1-10, Doe Entities 1-10, and Doe Governmental Units 1-5, Defendants.
SUPREME COURT OF HAWAI’I
111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386
July 10, 2006, Decided
SUBSEQUENT HISTORY: Amended by, Reconsideration granted by, in part, Reconsideration denied by, in part Courbat v. Dahana Ranch, 2006 Haw. LEXIS 417 (Haw., Aug. 3, 2006)
PRIOR HISTORY: [***1] APPEAL FROM THE THIRD CIRCUIT COURT. CIV. NO. 01-1-0049.
COUNSEL: On the briefs:
Andrew S. Iwashita, for the plaintiffs-appellants Lisa Courbat and Steven Courbat.
Zale T. Okazaki, of Ayabe, Chong, Nishimoto, Sia and Nakamura, for the defendant-appellee Dahana Ranch, Inc.
JUDGES: MOON, C.J., LEVINSON AND NAKAYAMA, JJ., AND DUFFY, J., DISSENTING, WITH WHOM ACOBA, J. JOINS.
OPINION BY: LEVINSON
[**429] [*256] OPINION OF THE COURT BY LEVINSON, J.
The plaintiffs-appellants Lisa Courbat and Steven Courbat [hereinafter, collectively, "the Courbats"] appeal from the May 13, 2002 judgment of the circuit court of the third circuit, the Honorable Riki May Amano presiding, entered pursuant to the circuit [*257] [**430] court’s April 26, 2002 grant of summary judgment in favor of the defendant-appellee Dahana Ranch, Inc. (the Ranch).
On appeal, the Courbats contend that the circuit court erred: (1) in concluding that Hawai’i Revised Statutes (HRS) § 480-2 et seq. (Supp. 1998) 1 do not apply to the Ranch’s business practices of booking prepaid tours and subsequently requiring liability waivers upon check-in; (2) by applying the rebuttable presumption set forth in HRS § 663B-2(a) [***2] (Supp. 1994) 2 in finding that [*258] [**431] Lisa’s injuries were not due to the negligence of the tour operator; (3) in finding that the Courbats sufficiently read over the waiver before signing it; and (4) in concluding that the waiver was valid as to their negligence claims.
1 HRS ch. 480 provided in relevant part:
§ 480-2 . . . . (a) [HN1] Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.
(b) In construing this section, the courts and the office of consumer protection shall give due consideration to the rules, regulations, and decisions of the Federal Trade Commission and the federal courts interpreting section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended.
. . . .
§ 480-3 . . . . [HN2] This chapter shall be construed in accordance with judicial interpretations of similar federal antitrust statutes . . . .
. . . .
§ 480-12 . . . . [HN3] Any contract or agreement in violation of this chapter is void and is not enforceable at law or in equity.
§ 480-13 . . . . (b) [HN4] Any consumer who is injured by any unfair or deceptive act or practice forbidden or declared unlawful by section 480-2:
(1) May sue for damages sustained by the consumer, and, if the judgment is for the plaintiff, the plaintiff shall be awarded a sum not less than $ 1,000 or threefold damages by the plaintiff sustained, whichever sum is the greater, and reasonable attorneys’ fees together with the costs of suit; . . . and
(2) May bring proceedings to enjoin the unlawful practices, and if the decree is for the plaintiff, the plaintiff shall be awarded reasonable attorneys’ fees together with the cost of suit.
Effective June 28, 2002, HRS § 480-2 was amended in respects immaterial to the present matter. See 2002 Haw. Sess. L. Act 229, §§ 2 and 6 at 916-18. Effective May 2, 2001, June 28, 2002, and June 7, 2005, HRS § 480-13 was amended in respects immaterial to the present matter. See 2005 Haw. Sess. L. Act 108, §§ 3 and 5 at 265-66, 267; 2002 Haw. Sess. L. Act 229, §§ 3 and 6 at 917-18; 2001 Haw. Sess. L. Act 79, §§ 1 and 5 at 127-28.
2 HRS ch. 663B, entitled “Equine activities” and enacted in 1994, see 1994 Haw. Sess. L. Act 229, §§ 1 and 2 at 591-92, provides in relevant part:
§ 663B-1 . . . . [HN5] As used in this [chapter], unless the context otherwise requires:
“Engages in an equine activity” means riding . . . or being a passenger upon an equine . . . .
. . . .
“Equine activity” means:
. . . .
(5) Rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor; and
. . . .
“Equine activity sponsor” means an individual, group, club, partnership, or corporation . . . which sponsors, organizes, or provides the facilities for, an equine activity. . . .
“Equine professional” means a person engaged for compensation in instructing a participant or renting to a participant an equine for the purpose of riding, driving, or being a passenger upon the equine, or in renting equipment or tack to a participant.
“Inherent risks of equine activities” means those dangers or conditions which are an integral part of equine activities, including, but not limited to:
(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around them;
(2) The unpredictability of an equine’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals;
(3) Certain hazards such as surface and subsurface conditions;
(4) Collisions with other equines or objects; and
(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability.
“Participant” means any person, whether amateur or professional, who engages in an equine activity, whether or not a fee is paid to participate in the equine activity.
§ 663B-2 . . . . (a) [HN6] In any civil action for injury, loss, damage, or death of a participant, there shall be a presumption that the injury, loss, damage, or death was not caused by the negligence of an equine activity sponsor, equine professional, or their employees or agents, if the injury, loss, damage, or death was caused solely by the inherent risk and unpredictable nature of the equine. An injured person or their legal representative may rebut the presumption of no negligence by a preponderance of the evidence.
(b) Nothing in this section shall prevent or limit the liability of an equine activity sponsor, an equine professional, or their employees or agents if the equine activity sponsor, equine professional, or person:
. . . .
(2) Provided the equine and . . . failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury
. . . . (Some brackets in original and some omitted.)
[***4] For the reasons discussed infra in section III.A, we vacate the circuit court’s May 13, 2002 judgment and remand for further proceedings consistent with this opinion.
The present matter arises out of personal injuries sustained by Lisa on February 1, 1999, while she and Steven were on a horseback riding tour on the Dahana Ranch on the Big Island of Hawai’i. The Courbats had booked the tour and prepaid the fee several months earlier through Island Incentives, Inc., an internet-based tour organizer. When they checked in at the Ranch, the Courbats were presented with a document to review and to sign which laid out the rules for the horseback tour and included a waiver “releas[ing] and hold[ing] harmless . . . [the] Ranch . . . from . . . injury to myself . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities” and stating that the undersigned “acknowledge[s] that there are significant elements of risk in any adventure, sport, or activity associated with horses.” 3 According to admissions by the Courbats in subsequent depositions, Lisa read over the waiver and, having [***5] no questions regarding the rules and regulations it contained, signed it before passing it to her husband to sign. Steven evidently did not read it, but recognized that it was “some kind of release of some sort” and signed it. In fact, no guest of the Ranch had ever refused to sign a waiver. Steven was familiar with the concept of such waivers, having participated with his wife in a snorkeling activity earlier during the vacation, at which time they both signed similar forms.
3 The rules and waiver stated in pertinent part:
In order for us to keep our ride from being a “Nose To Tail Trail Ride[,"] there are certain rules which must be followed for your safety and the horses’ mental well being. FAILURE TO FOLLOW THESE RULES WILL RESULT IN FORFEITURE OF YOUR RIDE WITH NO REFUND.
RULES AND REGULATIONS
FOLLOW RIDING INSTRUCTIONS & DIRECTIONS THROUGHOUT THE RIDE
. . . .
. PLEASE DO NOT RIDE AHEAD OF YOUR GUIDE UNLESS TOLD TO DO SO
. . . .
. DO NOT FOLLOW ONE ANOTHER
. . . .
I/We, the undersigned, hereby release and hold harmless the land owners, managers, operators (William P. Kalawaianui, Daniel H. Nakoa, Dahana Ranch and Nakoa Ranch), [t]he State of Hawaii and the Department of Hawaiian Home Lands and all other persons directly related to those listed above for the event listed herein[,] their successors, assigns and affiliates from loss or damage to property or injury to myself or any person . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-] related facilities. I/We acknowledge that there are significant elements of risk in any adventure, sport or activity associated with horses.
I/WE HAVE READ AND UNDERSTOOD THE FOREGOING RULES, REGULATIONS AND WAIVER.
(Emphasis in original.)
[***6] The Ranch’s guide, Daniel Nakoa, briefed the Courbats on how to handle a horse and general rules of the trail, including the importance of not riding single-file or allowing the horses to bunch up end to end. Out on the ride, Lisa was injured when she rode up behind Nakoa’s horse while Nakoa was speaking with another guest who had approached Nakoa with a question. According to later statements by both Nakoa and Lisa, Lisa approached Nakoa’s horse from the rear while the three horses were in motion, and, when her horse neared Nakoa’s horse, Nakoa’s horse struck out at her horse, hitting Lisa in the left shin. Lisa described the incident in a deposition taken on November 3, 2001:
Q: At what point did you believe that you needed to pull the reins back as you were approaching the guide . . . ? . . .
[*259] [**432] [Lisa]: When I felt that the horse was getting too close to the horses above me.
Q: So it appeared to you that the nose end of the horse was getting too close to the butt end of the horse in front?
[Lisa]: To the horse in general. We were coming in. I was just trying to keep a certain space between myself and the horse.
Q: [T]hose two horses, the guide’s [***7] horse and the guest’s horse, they were to the left of your horse, is that correct, to the front left of you?
Q: You recall which hind leg of the horse kicked you? Was it the right or the left?
[Lisa]: It would be the right one.
Q: And that was a horse which was ridden by the guide or the guest?
[Lisa]: The guide.
Q: Just before the horse in front of you kicked you, were all of the horses still in motion? When I say “all the horses,” yours, the guide’s, and the guest that was riding parallel to the guide?
[Lisa]: Just before?
Q: Was there any conversation between you and the guide or the guest just before this kicking incident occurred?
Q: At the time this kicking incident occurred, w[ere] the guide and the guest still talking to each other?
Nakoa described the same incident in a January 9, 2002 deposition:
[Nakoa]: . . . Everybody was facing the gate, the second gate. . . . And I was in the back. And because I lots of times don’t want to be a part of the ride, I started riding to the right. And then a man came to talk to me and [***8] ask me about the horse.
. . . .
Q: On which side of your horse was he at the time?
[Nakoa]: He was on the left side of me.
Q: And were you still moving or were you stopped?
[Nakoa]: We were walking.
. . . .
Q: . . .[H]ad you passed Lisa along the way? . . . .
[Nakoa]: Because of the angle, she was off to my left.
Q: Still in front of you?
[Nakoa]: No. About the same.
. . . .
Q: And when is the next time you notice Lisa’s horse before the injury takes place?
. . . .
[Nakoa]: She was still on the left side of me.
Q: . . . [A]bout how far away do you estimate she was from your horse?
[Nakoa]: You know, 30 feet maybe. . . .
Q: And from that point on, . . . were you able to continually observe Lisa riding her horse until the time the injury occurred?
[Nakoa]: Yes. The man was on my left and I was talking to him.
. . . .
Q: . . . [W]hile [the guest is] asking you this question and you can see [Lisa], what is her horse doing as it’s approaching your horse?
[Nakoa]: No, I didn’t see her approaching my horse. That’s what I’m trying to tell you. She was on the [***9] left side of this man and me and we’re all going in that direction (indicating). She was trotting, and I was walking with this man. And I saw her. And then this man asked me something. And the next thing I knew, she was right in back of my horse telling me that my horse kicked her.
Nakoa later acknowledged in the deposition that, if he or his horse had been aware that Lisa’s horse was approaching from behind, his horse would not have been surprised and would not have struck out at her horse. As a result of the impact, Lisa suffered severe pain and swelling, but no broken bones, and [*260] [**433] since the incident has complained of ongoing pain and injury to her leg.
The Courbats filed suit on January 31, 2001, asserting claims of negligence and gross negligence that resulted in physical injury to Lisa and loss of consortium injuries to Steven. On November 21, 2001, they filed a first amended complaint, adding a claim of unfair and deceptive trade practices regarding the waiver they had signed the day of the ride.
On January 16, 2002, the Ranch filed a motion for summary judgment on the grounds: (1) that the Courbats had assumed the risk of the activity; (2) that the Courbats [***10] had waived their rights to sue the Ranch for negligence; and (3) that the Ranch had not committed any acts that brought it under the purview of HRS §§ 480-2 and 480-13, see supra note 1.
The Courbats filed a memorandum in opposition to the Ranch’s motion and a motion for partial summary judgment, urging the circuit court to rule, inter alia: (1) that the Ranch owed Lisa a duty to protect her from injury by Nakoa’s horse; and (2) that the rebuttable presumption of no negligence on a defendant’s part set forth in HRS § 663B-2, see supra note 2, was inapplicable.
The circuit court conducted a hearing on both motions on February 13, 2002 and, on April 26, 2002, entered an order granting the Ranch’s motion and denying the Courbats’ motion. On May 13, 2002, the circuit court entered a final judgment in favor of the Ranch and against the Courbats. On August 8, 2002, the Courbats filed a timely notice of appeal. 4
4 On May 10, 2002, the Ranch filed a notice of taxation of costs which, pursuant to Hawai’i Rules of Appellate Procedure (HRAP) Rule 4(a)(3), tolled the time for filing an appeal. An order as to taxation of costs was never entered, and so, pursuant to HRAP Rule 4(a)(3), the request was deemed denied 90 days later, on August 8, 2002. The Courbats’ appeal, filed prematurely on June 7, 2002, was therefore timely filed as of August 8, 2002, pursuant to HRAP Rule 4(a)(2) and (3).
[***11] II. STANDARDS OF REVIEW
A. Summary Judgment
We [HN7] review the circuit court’s grant or denial of summary judgment de novo . . . .
[S]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.
[Hawai'i Cmty. Fed. Credit Union v. Keka, 94 Hawai'i 213, 221, 11 P.3d 1, 9 (2000)] (citations and internal quotation marks omitted).
Querubin v. Thronas, 107 Hawai’i 48, 56, 109 P.3d 689, 697 (2005) (quoting Durette v. Aloha Plastic Recycling, Inc., 105 Hawai’i 490, 501, 100 P.3d 60, 71 (2004)) [***12] (internal citation omitted) (some brackets in original).
B. Interpretation Of Statutes
[HN8] The interpretation of a statute is a question of law reviewable de novo. State v. Arceo, 84 Hawai’i 1, 10, 928 P.2d 843, 852 (1996).
Furthermore, our statutory construction is guided by established rules:
[HN9] When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty [*261] [**434] of an expression used in a statute, an ambiguity exists. . . .
In construing an ambiguous statute, “[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.” HRS § 1-15(1) [(1993)]. Moreover, the courts may resort to extrinsic aids in determining legislative intent. [***13] One avenue is the use of legislative history as an interpretive tool.
Gray [v. Admin. Dir. of the Court], 84 Hawai’i [138,] 148, 931 P.2d [580,] 590 [(1997)] (footnote omitted).
State v. Koch, 107 Hawai’i 215, 220, 112 P.3d 69, 74 (2005) (quoting State v. Kaua, 102 Hawai’i 1, 7-8, 72 P.3d 473, 479-480 (2003)). [HN10] Absent an absurd or unjust result, see State v. Haugen, 104 Hawai’i 71, 77, 85 P.3d 178, 184 (2004), this court is bound to give effect to the plain meaning of unambiguous statutory language; we may only resort to the use of legislative history when interpreting an ambiguous statute. State v. Valdivia, 95 Hawai’i 465, 472, 24 P.3d 661, 668 (2001).
A. Inasmuch As The Presence Or Absence Of An Unfair Or Deceptive Trade Practice Is For The Trier Of Fact To Determine, The Circuit Court Erroneously Granted Summary Judgment In Favor Of The Ranch And Against The Courbats.
The Courbats do not dispute that they both signed the Ranch’s waiver form, see supra note 3, prior to their ride. Nor do they dispute that waivers are an accepted [***14] method by which businesses may limit their liability. Rather, they assert that the Ranch’s practice of booking ride reservations through an activity company, receiving payment prior to the arrival of the guest, and then, upon the guest’s arrival at the Ranch, requiring the guest to sign a liability waiver as a precondition to horseback riding is an unfair and deceptive business practice to which the remedies of HRS ch. 480 apply. The Courbats maintain that the practice of withholding the waiver had “the capacity or tendency to mislead” customers, thereby satisfying this court’s test for a deceptive trade practice as articulated in State ex rel. Bronster v. United States Steel Corp., 82 Hawai’i 32, 50, 919 P.2d 294, 312 (1996).
The Intermediate Court of Appeals held in Beerman v. Toro, 1 Haw. App. 111, 118, 615 P.2d 749, 754-55 (1980), that [HN11] the remedies afforded by HRS ch. 480 are not available for personal injury claims. See also Blowers v. Eli Lilly & Co., 100 F. Supp. 2d 1265, 1269-70 (D. Haw. 2000). The Courbats, however, assert that they are not invoking HRS ch. 480 for the purpose of establishing personal injury damages, [***15] but rather because the lack of notice as to the waiver requirement injured them economically, by way of the $ 116 cost of the tour, giving rise to a valid claim under HRS § 480-13, see supra note 1. As a deceptive trade practice, the Courbats maintain, the waiver is void under HRS § 480-12, see supra note 1.
1. The elements of a deceptive trade practice claim for recision of a contract
[HN12] To render the waiver void, the Courbats must establish that it is an unseverable part of a “contract or agreement in violation of [HRS ch. 480].” See HRS § 480-12, supra note 1. Furthermore, any “unfair or deceptive act or practice in the conduct of any trade or commerce” violates HRS § 480-2.
[HN13] “Deceptive” acts or practices violate HRS § 480-2, but HRS ch. 480 contains no statutory definition of “deceptive.” This court has described a deceptive practice as having “the capacity or tendency to mislead or deceive,” United States Steel Corp., 82 Hawaii at 50, 919 P.2d at 312, 313, but, beyond noting that federal [***16] cases have also defined deception “as an act causing, as a natural and probable result, a person to do that which he [or she] would not do otherwise,” Keka, 94 Hawai’i at 228, 11 P.3d at 16 (brackets in original) (quoting United States Steel Corp., 82 Hawaii at 51, 919 P.2d at 313 (citing Bockenstette v. Federal Trade Comm’n, 134 F.2d 369, 36 F.T.C. 1106 (10th Cir. 1943))), we have not articulated a more refined test.
[HN14] HRS § 480-3, see supra note 1, provides that HRS ch. 480 “shall be construed in accordance with judicial interpretations of similar federal antitrust statutes,” [*262] [**435] and HRS § 480-2(b) provides that “[i]n construing this section, the courts . . . shall give due consideration to the . . . decisions of . . . the federal courts interpreting . . . 15 U.S.C. [§ ] 45(a)(1)[(2000)],” 5 in recognition of the fact that HRS § 480-2 is “a virtual counterpart.” 6 Keka, 94 Hawai’i at 228, 11 P.3d at 16. The Federal Trade Commission (FTC), in In re Cliffdale Assocs., Inc., 103 F.T.C. 110, Trade Cas. (CCH) P22137 (1984), developed [***17] a three-part analytical test for “deception,” 7 which the federal courts have thereafter extensively adopted, see FTC v. Verity Int’l, Ltd., 443 F.3d 48, 63 (2d. Cir. 2006); FTC v. Tashman, 318 F.3d 1273, 1277 (11th Cir. 2003); FTC v. Pantron I Corp., 33 F.3d 1088, 1095 (9th Cir. 1994); FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir. 1988). Under the Cliffdale Assocs. test, a deceptive act or practice is “(1) a representation, omission, or practice that (2) is likely to mislead consumers acting reasonably under the circumstances [where] (3) the representation, omission, or practice is material.” Verity Int’l, 443 F.3d at 63. A representation, omission, or practice is considered “material” if it involves “‘information that is important to consumers and, hence, likely to affect their choice of, or conduct regarding, a product.’” Novartis Corp. v. FTC, 343 U.S. App. D.C. 111, 223 F.3d 783, 786 (D.C. Cir. 2000) (quoting Cliffdale Assocs., 103 F.T.C. at 165); see also Kraft, Inc. v. FTC, 970 F.2d 311, 322 (7th Cir. 1992); [***18] FTC v. Crescent Publ’g Group, Inc., 129 F. Supp. 2d 311, 321 (S.D.N.Y. 2001); FTC v. Five-Star Auto Club, Inc., 97 F. Supp. 2d 502, 529 (S.D.N.Y. 2000); FTC v. Sabal, 32 F. Supp. 2d 1004, 1007 (N.D. Ill. 1998). Moreover, the Cliffdale Assocs. test is an objective one, turning on whether the act or omission “is likely to mislead consumers,” Verity Int’l, 443 F.3d at 63, as to information “important to consumers,” Novartis Corp., 223 F.3d at 786, in making a decision regarding the product or service. 8
5 15 U.S.C. § 45(a)(1) provides that ” [HN15] [u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”
6 Hawai’i courts have long recognized, therefore, that federal interpretations of 15 U.S.C. § 45(a)(1) guide us in construing HRS § 480-2 “in light of conditions in Hawai’i.” Ai v. Frank Huff Agency, 61 Haw. 607, 613 n.11, 607 P.2d 1304, 1309 n.11 (1980); see also Island Tobacco Co. v. R.J. Reynolds Tobacco Co., 63 Haw. 289, 299, 627 P.2d 260, 268 (1981) overruled on other grounds by Robert’s Hawaii School Bus, Inc. v. Laupahoehoe Transp. Co., Inc., 91 Hawai’i 224, 982 P.2d 853 (1999); Rosa v. Johnston, 3 Haw. App. 420, 426, 651 P.2d 1228, 1233-34 (1982).
7 See Cliffdale Assocs., 103 F.T.C. at 164-65 (characterizing the new standard as a refinement of the “tendency or capacity to deceive” test used by the FTC to that point and pronouncing the old test “circular and therefore inadequate to provide guidance”).
8 [HN16] While federal courts have not expressly categorized the test as objective, the FTC, in Cliffdale Assocs., commented that “[t]he requirement that an act or practice be considered from the perspective of a consumer acting reasonably in the circumstances is not new. . . . [The FTC] has long recognized that the law should not be applied in such a way as to find that honest representations are deceptive simply because they are misunderstood by a few. . . . [A]n advertisement would not be considered deceptive merely because it could be unreasonably misunderstood by an insignificant and unrepresentative segment of the class of persons [to] whom the representation is addressed.” 103 F.T.C. at 165 (footnotes and internal quotation signals omitted).
[HN17] Given our obligation under HRS §§ 480-3 [***20] and 480-2(b) to apply federal authority as a guide in interpreting HRS ch. 480, we hereby adopt the three-prong Cliffdale Assocs. test in determining when a trade practice is deceptive. 9
9 Other states have already adopted the Cliffdale Assocs. test. See, e.g., Luskin’s, Inc. v. Consumer Prot. Div., 353 Md. 335, 726 A.2d 702, 713 (Md. 1999); Carter v. Gugliuzzi, 168 Vt. 48, 716 A.2d 17, 23 (Vt. 1998). Our adoption of the Cliffdale Assocs. test does not change the existing rule that, in order to establish a violation of HRS § 480-2, the plaintiff need not establish an intent to deceive on the part of the defendant, World Travel Vacation Brokers, 861 F.2d at 1029; Five-Star Auto Club, 97 F. Supp. at 526, nor any actual deceit, United States Steel Corp., 82 Hawai’i at 51, 919 P.2d at 313.
2. Under The Cliffdale Assocs. Objective Consumer Test, The Determination [***21] Of A Deceptive Omission Is One For The Trier Of Fact, Thereby Rendering Summary Judgment Inappropriate.
The Courbats do not allege that the waiver itself is deceptive; rather, they urge [*263] [**436] that the deceptive practice at issue was the booking agent’s failure to inform them of the waiver requirement during the negotiation and execution of the underlying contract. 10 Nevertheless, if any deceptive omission occurred with respect to the negotiation and execution of the original contract, the operation of HRS § 480-12, see supra note 1, would render both the original contract and the waiver, signed afterward, void. 11 Thus, the waiver’s survival depends on the trier of fact’s determination as to whether the omission of the waiver requirement during Island Incentives, Inc.’s booking process was deceptive and therefore in violation of HRS § 480-2.
10 It is undisputed that Island Incentives, Inc. was acting as the Ranch’s agent in this matter, and “we note that [HN18] an owner is responsible for the representations of his agent made within the scope of his agent’s selling authority.” Au v. Au, 63 Haw. 210, 215, 626 P.2d 173, 178 (1981) (citing Negyessy v. Strong, 136 Vt. 193, 388 A.2d 383, 385 (Vt. 1978)).
11 If the waiver were severable from the underlying contract, it could survive despite a determination that the original contract was void. See Ai v. Frank Huff Agency, 61 Haw. 607, 619, 607 P.2d 1304, 1312 (1980) [HN19] (“The wording on HRS § 480-12 might . . . appear to suggest that any contract containing an illegal provision . . . should be held unenforceable in its entirety. . . . [U]nder ordinary contract law, however, . . . a partially legal contract may be upheld if the illegal portion is severable from the part which is legal.”). However, “the general rule is that severance of an illegal provision is warranted and the lawful portion . . . enforceable when the illegal provision is not central to the parties’ agreement.” Beneficial Hawaii, Inc. v. Kida, 96 Hawai’i 289, 311, 30 P.3d 895, 917 (2001). The underlying contract at issue is the sum of the parties’ agreement; the waiver would be considered an addendum to it. Therefore, the waiver is not severable and must stand or fall with the underlying contract.
[HN20] The application [***23] of an objective “reasonable person” standard, of which the Cliffdale Assocs. test is an example, is ordinarily for the trier of fact, rendering summary judgment “often inappropriate.” Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 107, 839 P.2d 10, 24 (1992), cited in Casumpang v. ILWU Local 142, 108 Hawai’i 411, 425, 121 P.3d 391, 405 (2005); Arquero v. Hilton Hawaiian Village LLC, 104 Hawai’i 423, 433, 91 P.3d 505, 515 (2004). “Inasmuch as the term ‘reasonableness’ is subject to differing interpretations . . ., it is inherently ambiguous. Where ambiguity exists, summary judgment is usually inappropriate because ‘the determination of someone’s state of mind usually entails the drawing of factual inferences as to which reasonable [minds] might differ.’” Amfac, Inc., 74 Haw. at 107, 839 P.2d at 24 (quoting Bishop Trust Co. v. Cent. Union Church, 3 Haw. App. 624, 628-29, 656 P.2d 1353, 1356 (1983)). Reasonableness can only constitute a question of law suitable for summary judgment “‘when the facts are undisputed and not fairly susceptible of divergent inferences’ because ‘[w]here, upon [***24] all the evidence, but one inference may reasonably be drawn, there is no issue for the jury.’” Id. at 108, 839 P.2d at 24 (quoting Broad & Branford Place Corp. v. J.J. Hockenjos Co., 132 N.J.L. 229, 39 A.2d 80, 82 (N.J. 1944) (brackets in original)). “‘[A] question of interpretation is not left to the trier of fact where evidence is so clear that no reasonable person would determine the issue in any way but one.’” Id. (quoting Restatement (Second) of Contracts § 212 cmt. e (1981) (brackets in original)). See also Restatement (Second) of Contracts § 212(2) (1981 and Supp. 2005) (“A question of interpretation of an integrated agreement is to be determined by the trier of fact if it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence .”) (Emphasis added). There is no genuine issue of material fact regarding the failure to disclose the waiver requirement during negotiation of the original tour contract, but we cannot say that, applying the Cliffdale Assocs. test, reasonable minds could draw [***25] only one inference as to the materiality of that omission to reasonable consumers contemplating the transaction. Therefore, the question whether a waiver requirement would be materially important in booking a horseback tour remains one for the trier of fact.
Because a genuine issue of material fact, resolvable only by the trier of fact, remains in dispute, the grant of summary judgment on the HRS ch. 480 claim was erroneous. We therefore vacate the circuit court’s May [*264] [**437] 13, 2002 judgment and remand for further proceedings consistent with this opinion.
B. The Consequences, On Remand, Of The Determination By The Trier Of Fact As To Whether Nondisclosure Of The Waiver Requirement Was A Deceptive Trade Practice
If, on remand, the trier of fact determines that the nondisclosure of the waiver was a deceptive trade practice, rendering the waiver void, then the Courbats’ negligence claims proceed free of the waiver defense. Nevertheless, for the reasons set forth below and for purposes of any subsequent trial on the Courbats’ negligence claims, we hold that HRS ch. 663B, entitled “Equine activities,” see supra note 2, setting forth a rebuttable presumption of non-negligence [***26] on the part of the tour operator, does not apply to the present matter.
Conversely, if, on remand, the trier of fact determines that the nondisclosure of the waiver was not deceptive, then the Courbats validly waived their negligence claims.
1. The Statutory Presumption Of Non-Negligence For Equine-Related Injuries Set Forth In HRS Ch. 663B Does Not Apply To The Courbats’ Claims.
If the trier of fact determines that the failure to inform the Courbats of the waiver requirement was a deceptive trade practice, then the negligence waiver, along with the underlying contract, will be rendered void, and the Courbats’ negligence claims will be revived. In order to provide guidance on remand, therefore, we hold that it was error for the circuit court in the present matter to apply HRS § 663B-2(a), see supra note 2, which establishes a rebuttable presumption in favor of horseback tour operators that any injury “caused solely by the inherent risk and unpredictable nature of the equine” is not due to the negligence of the tour operator.
HRS § 663B-2(b) provides in relevant part that “[n]othing in [***27] this section shall prevent or limit the liability of an equine activity sponsor . . . if the equine activity sponsor, equine professional, or person: . . . (2) [p]rovided the equine and . . . failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury.” The substance of Lisa’s claim revolves around her assertion that Nakoa failed to monitor her approach toward his horse while he was engaged in conversation with another guest; in other words, Lisa claims that Nakoa “failed to reasonably supervise the equine activities” that were the “proximate cause of [her] injury.” Therefore, we hold that, if Lisa is correct, the presumption of non-negligence set forth in HRS § 663B-2(a) would not apply to the Courbats’ claims.
2. If The Trier Of Fact Determines That The Nondisclosure Of The Waiver Was Not A Deceptive Trade Practice, Then The Courbats Validly Waived Their Negligence Claims.
a. The waiver was validly executed.
Citing Krohnert v. Yacht Sys. of Hawai’i, 4 Haw. App. 190, 201, 664 P.2d 738, 745 (1983), the Courbats assert that, because they manifested no clear [***28] and unequivocal acceptance of the terms of the waiver, the waiver cannot be enforced against them. However, pursuant to the following analysis, we hold that, if the trier of fact finds that the failure to inform the Courbats of the waiver requirement was not a deceptive trade practice, then the waiver, in all other respects, was valid.
[HN21] “The general rule of contract law is that one who assents to a contract is bound by it and cannot complain that he has not read it or did not know what it contained.” Leong v. Kaiser Found. Hosp., 71 Haw. 240, 245, 788 P.2d 164, 168 (1990); see also Joaquin v. Joaquin, 5 Haw. App. 435, 443, 698 P.2d 298, 304 (1985); In re Chung, 43 B.R. 368, 369 (Bankr. D. Haw. 1984); In re Kealoha, 2 B.R. 201, 209 (Bankr. D. Haw. 1980). Furthermore, “‘[p]arties are permitted to make exculpatory contracts so long as they are knowingly and willingly made and free from fraud. No public policy exists to prevent such contracts.’” Fujimoto v. Au, 95 Hawai’i 116, 156, 19 P.3d 699, 739 (2001) (some brackets omitted) (quoting Gen. Bargain Ctr. v. Am. Alarm Co., Inc., 430 N.E.2d 407, 411-12 [*265] [**438] (Ind. Ct. App. 1982)). [***29] “[S]uch bargains are not favored, however, and, if possible, bargains are construed not to confer this immunity.” Fujimoto, 95 Hawai’i at 155, 19 P.3d at 738. Therefore, as a general rule, “‘[e]xculpatory clauses will be held void if the agreement is (1) violative of a statute, (2) contrary to a substantial public interest, or (3) gained through inequality of bargaining power.’” 95 Hawaii at 156, 19 P.3d at 739 (quoting Andrews v. Fitzgerald, 823 F. Supp. 356, 378 (M.D.N.C. 1993)).
The Courbats have not alleged that any of the terms of the waiver, or the use of a waiver by the Ranch, violates a statute; on the contrary, the Courbats concede that waivers are an acceptable method by which tour operators may seek to limit their liability in response to rising insurance and litigation costs.
In Krohnert, the ICA defined the public interest
as involving some or all of the following characteristics:
 It concerns a business of a type generally thought suitable for public regulation.
 The party seeking exculpation is engaged in performing a service of great importance to the public, which is often [***30] a matter of practical necessity for some members of the public.
 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.
 As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.
 In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.
 Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller of the service, subject to the risk of carelessness by the seller or his agents.
4 Haw. App at 199, 664 P.2d at 744 (finding under this test that the exculpatory clause contained in a contract for marine surveying was permissible) (brackets omitted) (quoting Lynch v. Santa Fe Nat’l Bank, 97 N.M. 554, 627 P.2d 1247, 1251-52 (N.M. Ct. App. 1981) [***31] (holding that services of escrow agents in New Mexico were not in the nature of a public service so as to render an exculpatory clause unenforceable) (quoting Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 383 P.2d 441, 445-46, 32 Cal. Rptr. 33 (Cal. Ct. App. 1963) (declaring invalid as against the public interest an exculpatory clause for future negligence required for admission to a public research hospital))); see also 15 Corbin on Contracts § 85.18 (2003 & Supp. 2005) (summarizing a similar test commonly used by courts and noting that courts tend to enforce exculpatory clauses for recreational activities under the test). 12 Entities that have been found to fall under the public interest doctrine, rendering exculpatory clauses void, include common carriers, see Adams Express Co. v. Croninger, 226 U.S. 491, 509, 33 S. Ct. 148, 57 L. Ed. 314 (1913); Shippers Nat’l Freight Claim Council, Inc. v. Interstate Commerce Comm’n, 712 F.2d 740, 746 (2d Cir. 1983); Clairol, Inc. v. Moore-McCormack Lines, Inc., 79 A.D.2d 297, 309-10, 436 N.Y.S.2d 279 (N.Y. App. Div. 1981), and hospitals, see Tunkl, 383 P.2d at 447; Smith v. Hosp. Auth. of Walker, Dade & Catoosa Counties, 160 Ga. App. 387, 287 S.E.2d 99, [*266] [**439] 101 (Ga. Ct. App. 1981); [***32] Belshaw v. Feinstein, 258 Cal. App. 2d 711, 65 Cal. Rptr. 788, 798 (Cal. Ct. App. 1968).
12 Courts have upheld exculpatory clauses relating to car racing, see Cadek v. Great Lakes Dragaway, Inc., 843 F. Supp. 420 (N.D. Ill. 1994); Barbazza v. Int’l Motor Sports Ass’n, 245 Ga. App. 790, 538 S.E.2d 859 (Ga. Ct. App. 2000), snow skiing, see Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334, 35 P.3d 383 (Wash. Ct. App. 2001), skydiving, see Scrivener v. Sky’s The Limit, Inc., 68 F. Supp. 2d 277 (S.D.N.Y. 1999), and horseback riding, see Street v. Darwin Ranch, Inc., 75 F. Supp. 2d 1296, 1299 (D. Wyo. 1999) (finding that “recreational trail rides are neither of great importance to the public, nor a practical necessity to any member of the public”).
Applying these factors to the present matter, we determine that the public interest here is not at stake: recreational activity tours are not generally [***33] suitable to public regulation, in the manner of common carriers, nor of great importance to the public, nor of an essential nature, in the manner of medical care, such that the provider’s bargaining power is greatly enhanced over any member of the public seeking their services.
Finally, as the United States District Court for the District of Hawai’i noted, in considering negligence waivers in the context of recreational activity, while such waivers may be contracts of adhesion, in that they are presented on a “take-it-or-leave-it” basis, they are not unconscionable, but “are of a sort commonly used in recreational settings” and “are generally held to be valid.” Wheelock v. Sport Kites, Inc., 839 F. Supp. 730, 736 (D. Haw. 1993). [HN22] “[C]ontracts [of adhesion] are ‘unenforceable if two conditions are present: (1) the contract is the result of coercive bargaining between parties of unequal bargaining strength; and (2) the contract unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party.’” Fujimoto, 95 Hawai’i at 156, 19 P.3d at 739 (quoting Brown v. KFC Nat’l Mgmt. Co., 82 Hawai’i 226, 247, 921 P.2d 146, 167 (1996)); [***34] see also Wheelock, 839 F. Supp. at 735 (“[A]dhesion contracts are fully enforceable provided that they are not unconscionable and do not fall outside the reasonable expectations of the weaker or adhering party.”). Unequal bargaining strength “involves the absence of alternatives; specifically whether the plaintiffs were ‘free to use or not to use’ [the] defendant’s . . . services.” Krohnert, 4 Haw. App at 199, 664 P.2d at 744 (quoting Lynch, 627 P.2d at 1250). These conditions are generally not germane in the recreational waiver context. In the context of a recreational sport or adventure activity, freely undertaken for pleasure, “coercive bargaining” and “an absence of alternatives” are terms that hold little meaning.
In the present matter, Lisa read through and responded to queries contained in the waiver form and had no further questions or concerns regarding the contents before she signed it. Steven conceded that he routinely relied on his wife to review documents before signing them and that he knew he was waiving rights when he signed the form. The record demonstrates that the Courbats were given adequate time and opportunity [***35] to fully review the waiver presented to them before they signed it and that both knew that by signing it they were waiving legal rights in return for being allowed to participate in the ride. In short, there is no evidence of coercion. By signing the waiver form, they demonstrated that they agreed to its terms, and by reading it, or, in Steven’s case, in relying on the advice of his wife, demonstrated knowledge of its contents. Moreover, they had signed similar waivers that week for another activity and were familiar with what they represented. Accordingly, we hold that, if the trier of fact determines that the nondisclosure of the waiver was not a deceptive trade practice, the Courbats’ waiver was valid.
b. The scope of the Courbats’ waiver does not extend beyond negligence claims.
The language of the waiver, see supra note 3, releases the Ranch and its agents and holds it harmless “from loss or damage to property or injury to [the undersigned] . . . resulting from [the undersigned] . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities.” However, because [HN23] “‘[e]xculpatory provisions are not [***36] favored by the law and are strictly construed against parties relying on them,’” the effect of the broad exculpatory language contained in the Ranch’s waiver should be construed to limit the waiver’s scope to simple negligence claims; it does not protect the Ranch against its own gross negligence or willful misconduct. Fujimoto, 95 Hawai’i at 156, 19 P.3d at 739 (quoting Andrews, 823 F. Supp. at 378); see also Wheelock, 839 F. Supp. at 736 (interpreting the reasoning in Krohnert to conclude that to allow an exculpatory clause to extend to gross negligence would violate [*267] [**440] the public interest, rendering the clause void).
In light of the foregoing analysis, we vacate the circuit court’s May 13, 2002 judgment in favor of the Ranch and against the Courbats and remand for further proceedings consistent with this opinion.
DISSENT BY: DUFFY
DISSENTING OPINION BY DUFFY, J., IN WHICH ACOBA, J., JOINS
I respectfully dissent. In my view, no reasonable person would find that the recreational tour operator’s failure to disclose the waiver requirement of Dahana Ranch, Inc. during negotiation of the horseback riding [***37] activity was a deceptive trade practice under HRS § 480-2. The Courbats concede that waivers are an acceptable method by which recreational tour operators and sponsors may seek to limit their liability in response to rising insurance and litigation costs, and admit that they were required to sign such a waiver before participating in a snorkeling activity earlier during the same Hawai’i vacation. Applying the Cliffdale Assoc. test to the undisputed facts in this case involving the inherently dangerous activity of horseback riding, I respectfully submit that the tour operator’s failure to disclose the waiver requirement of Dahana Ranch, Inc. during negotiation of the horseback riding activity with the Courbats was not a material omission implicating a deceptive trade practice under HRS § 480-2. I would thus affirm the circuit court’s grant of summary judgment in favor of Dahana Ranch, Inc.
Brush, v. Jiminy Peak Mountain Resort, Inc., Et Al, 626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204Posted: March 25, 2013
Brush, v. Jiminy Peak Mountain Resort, Inc., Et Al, 626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204
Kelly Brush, Plaintiff v. Jiminy Peak Mountain Resort, Inc., Et Al, Defendants and st. Lawrence university, Defendant/Third-Party Plaintiff v. Middlebury College, Et Al, Third-Party Defendants
C.A. No. 07-10244-MAP
626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204
June 11, 2009, Decided
COUNSEL: [**1] For Jeffrey Pier, ThirdParty Plaintiff: Michael H. Burke, LEAD ATTORNEY, George W. Marion, Bulkley, Richardson & Gelinas, Springfield, MA.
For Barry Bryant, Defendant: John B. Connarton, Jr., LEAD ATTORNEY, Luke R. Conrad, Donovan Hatem, LLP, Boston, MA.
For Williams College, Defendant: William J. Dailey, Jr., Brian H. Sullivan, LEAD ATTORNEYS, Sloane & Walsh, LLP, Boston, MA.
For St. Lawrence University, ThirdParty Plaintiff: Thomas E. Day, Edward J. McDonough, Jr., LEAD ATTORNEY, Flanagan & Cohen, PC, Springfield, MA.
For Kelly Brush, Plaintiff: Walter E. Judge, Jr., LEAD ATTORNEY, Downs, Rachlin & Martin, Burlington, VT; Robert B. Luce, LEAD ATTORNEY, Downs, Rachlin & Martin PLLC, Burlington, VT.
For Williams College, Defendant: Lawrence J. Kenney, Jr., Sloane & Walsh, Boston, MA.
For Forest Carey, ThirdParty Defendant: Gerald F. Lucey, Nelson, Kinder, Mosseau & Saturley, P.C., Boston, MA.
For Jiminy Peak Mountain Resort, Inc., Defendant: David B. Mongue, LEAD ATTORNEY, Donovan & O’Connor, LLP, North Adams, MA.
For Middlebury College Middlebury, VT 05753, ThirdParty Defendant: Robert B. Smith, Nelson, Kinder, Mosseau & Saturley, P.C., Boston, MA.
JUDGES: MICHAEL A. PONSOR, United States District [**2] Judge.
OPINION BY: MICHAEL A. PONSOR
[*143] MEMORANDUM AND ORDER REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT
(Dkt. Nos. 135, 137, 138, 139, 140, 143, 157)
This case stems from a tragic skiing accident that left the plaintiff, Kelly Brush, permanently disabled. The accident occurred during a collegiate ski race on February 18, 2006 when Brush lost control and crashed into a ski lift stanchion just off the trail. In her six-count amended complaint Brush alleges that the severity of her injuries was the result of negligence or gross negligence on the part of the following defendants: Jiminy Peak, Inc., the operator of the ski area where the accident occurred; Williams College and two of its ski coaches, Edward Grees and Oyestein Bakken, who organized the competition; St. Lawrence University and its ski coach, Jeffrey Pier, who was the referee of the race during which Brush was injured; and Barry Bryant, who served as the competition’s Technical Delegate from the Federation Internationale de Ski (“FIS”). Pier and St. Lawrence University have also filed a third-party complaint seeking contribution from Brush’s school, Middlebury College, and its ski coach Forest Carey, who was a race [**3] referee for a race on the same trail the day before Brush’s accident. Before the court are motions for summary judgment from all of the parties.
Jiminy Peak argues that pursuant to the Massachusetts Ski Safety Act (“MSSA”) it, as the ski area operator, has no liability because Plaintiff’s injuries were caused by her collision with an object off the trail. The other Defendants assert that Plaintiff cannot recover from them because she executed a liability waiver that covered Defendants and their alleged negligence when she registered with the United States Ski and Snowboard Association (“USSA”). The Third-Party Defendants argue that as a matter of law they have no obligation to contribute even if Third-Party Plaintiffs Pier and St. Lawrence are liable to Plaintiff. Plaintiff asks the court to rule that the MSSA does not bar her claims against Jiminy Peak and the USSA liability waiver is not applicable to bar the claims of the other Defendants. Finally she asserts that the facts are sufficient to permit this case to go to trial on a theory of gross negligence, even if the USSA waiver is valid.
For the reasons set forth below, the court will allow all Defendants’ motions for [*144] summary judgment, [**4] deny Plaintiff’s motion, and order entry of judgment for Defendants.
The facts are largely undisputed. Where disputes exist, the court has viewed the facts in the light most favorable to Plaintiff.
A. The Accident.
Brush was injured while competing in the Williams Winter Carnival, a two-day event at the Jiminy Peak ski area in Hancock, Massachusetts hosted by the Williams College Outing Club in association with the Williams College ski team. The Winter Carnival is part of the regular season of the Eastern Intercollegiate Ski Association (EISA), one conference within the ski program of the National Collegiate Athletic Association (NCAA). The competition was also held under the auspices of the USSA and the FIS, which in the United States operates through the USSA. As a result of the USSA/FIS affiliation, all competitors in the Winter Carnival had to be USSA members, though not all had to be NCAA athletes. The USSA/FIS designation meant that skiers could earn “points” to improve their international, individual standing by competing in the Winter Carnival events.
The particular event during which Plaintiff was injured was the Giant Slalom, which took place on the second day of [**5] the Winter Carnival. This event requires skiers to pass through “gates” set along the trail as they descend the slope as quickly as possible. Skiers are ranked based on their best time through the course and are not penalized for any runs they fail to finish, due for example to a fall. Technological changes in the past decade have increased the sport’s risks. New ski designs allow skiers to reach speeds of forty miles per hour. At the same time it has become harder to predict how skiers will fall if they lose control. Some courses now are set with gates at the edges of the trail to maximize the distance skiers must travel from one side of the trail to another in order to slow skiers down. Persons involved with competitive skiing are aware that technical changes have increased the importance of proper placement of safety equipment during competitions.
Under NCAA and USSA rules, members of the “competition jury” have a responsibility to inspect the layout of a trail prior to its use during a competition. The competition jury for the race during which Brush was injured included the “Chief of the Race,” Defendant Edward Grees, the head ski coach at Williams; the “Chief of the Course,” Defendant [**6] Oyestein Bakken, an assistant ski coach at Williams; the “Race Referee,” Jeffrey Pier, a ski coach at St. Lawrence University; and the “Technical Delegate,” Defendant Barry Bryant. Third-party Defendant Forest Carey, the Middlebury coach, was the “Race Referee” for a race that used the same trail the previous day.
The USSA requires that trails used in competitions be “homologated,” which means that the trail has been confirmed to meet the relevant FIS regulations. The USSA also mandates that trails be prepared in keeping with homologation requirements. The parties disagree about whether all members of the jury were responsible for confirming that the trail was set consistent with the homologation report, but for purposes of this memorandum the court will assume they were. Additionally, there is a dispute as to whether the trail was, in fact, prepared as set out in a homologation report drafted in keeping with FIS requirements. Again, for purposes of its rulings here, the court will [*145] assume that the trail was not prepared as the homologation report contemplated.
Plaintiff asserts that the relevant homologation report required that “B-netting,” a type of netting used to slow errant skiers [**7] before they collide with objects, be placed along the edge of the trail starting uphill from any lift tower and continuing downhill some distance past the lift tower. The homologation report, completed in 2002 by Defendant Grees and an FIS representative for the area where Plaintiff was hurt, included a diagram showing such B-netting. While at least some of the defendants assert the report merely displays safety equipment that might be necessary, rather than the minimal required safety equipment, the court will, again, assume for the current purposes that the report indicated that B-netting should have been installed above and below lift towers. The parties do agree that B-netting was not set up according to the diagram on the day Plaintiff was hurt.
At the time of Plaintiff’s accident there was B-netting along the left edge of the trail, stopping at a point approximately even with the gate where Brush lost control and somewhat uphill from a lift tower. No other netting was placed between the trail and the tower, so that the area directly in front of the tower lacked any protection. In prior years B-netting was placed in accordance with a diagram in the homologation report, extending [**8] past the lift tower above and below.
Not only was there less B-netting on February 18, 2006 than there was in the past, there were no triangular nets set around the lift tower itself. Triangular nets are another available type of safety netting used to deflect a skier from a particular hazard. Additionally, neither the tower nor its support stanchion was equipped with a type of padding known as Willy Bags, though such padding is regularly used in speed events.
After the Giant Slalom course was set, Plaintiff had an opportunity to ski down the slope to assess the course, and she did so. Later, during one of her timed runs, Plaintiff caught an edge of one of her skis and lost control. As a result she left the trail and struck the unprotected lift tower support stanchion. The collision caused life-altering injuries to Plaintiff, including paraplegia.
B. Relevant Agreements.
1. USSA Waiver.
At the time of her accident Plaintiff was a member of the USSA and the FIS. During the summer of 2005 registration forms for both organizations were completed on her behalf. 1 The FIS waiver included language acknowledging the risks of skiing competitively. Additionally, it stated that national or club organizations [**9] in the United States may require a skier to waive any liability claims in order to participate in their activities.
1 The parties agree that Plaintiff’s mother signed the relevant USSA Release and FIS Registration with Plaintiff’s full consent and authorization. They further agree that the weight given to those documents should be the same as it would be if Plaintiff had signed them herself. (Dkt. No. 162, Pl.’s Resp. to Defs.’ Joint Statement of Undisputed Material Facts at 18.)
Those completing the USSA registration form had to sign a clearly-labeled liability release. (Dkt. No. 142, Ex. 9.) Pursuant to that release a USSA member
unconditionally WAIVES AND RELEASES ANY AND ALL CLAIMS, AND AGREES TO HOLD HARMLESS, DEFEND AND INDEMNIFY USSA FROM ANY CLAIMS, present or future, to Member or his/her property, [*146] or to any other person or property, for any loss, damage, expense, or injury (including DEATH), suffered by any person from or in connection with Member’s participation in any Activities in which USSA is involved in any way, due to any cause whatsoever INCLUDING NEGLIGENCE and/or breach of express or implied warranty on the part of USSA.
As used in the release “USSA” referred to the [**10] United States Ski and Snowboard Association and “its subsidiaries, affiliates, officers, directors, volunteers, employees, coaches, contractors and representatives, local ski clubs, competition organizers and sponsors, and ski and snowboard facility operators.” Id. The term “Activities” included “skiing and snowboarding in their various forms, as well as preparation for participation in, coaching, volunteering, officiating and related activities in alpine, nordic, freestyle, disabled, and snowboarding competitions and clinics.” Id.
2. Agreements Between Defendants.
The Williams College ski team utilized the Jiminy Peak ski area for its Winter Carnival and for practice sessions pursuant to a written agreement between the parties. (Dkt. No. 158, Tab 18, Jiminy Peak/Williams College Contract.) That five-paragraph agreement gave Williams and members of its community various types of access to the ski area in exchange for a single annual payment. Jiminy Peak agreed to have its mountain manager work with the Williams alpine coach to determine safe conditions for ski team training and to make and groom snow for the trails that were used during the annual winter carnival.
Jiminy Peak and Williams [**11] College were also parties to an Alpine Schedule Agreement with the USSA. Pursuant to that agreement the competition was listed on the USSA’s official schedule; all competitors had to be members of the USSA; competitors, as noted, were able to earn “points;” competition organizers had to agree to allow some non-collegiate USSA members to compete; and members of the competition jury had to be members of USSA. Additionally, the agreement required that facilities “to be used in the actual competition events . . . conform with applicable rules and with requirements of the [Technical Delegate] and competition jury.” (Dkt. No. 158, Tab 8, Alpine Schedule Agreement 2, P 8.) The competition organizer, the Williams College Outing Club, was responsible for “working with” Jiminy Peak, the USSA, and the competition jury to select facilities and ensure that they were prepared in accordance with “such rules or requirements, and homologation or facility approval requirements according to discipline and type of competition.” Id.
“Summary judgment is appropriate where ‘there is no genuine issue as to any material fact and  the moving party is entitled to judgment as a matter of law.’” [**12] Coffin v. Bowater, Inc., 501 F.3d 80, 85 (1st Cir. 2007) (citing Fed. R. Civ. P. 56(c)). “[C]ourts are required to view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion.’” Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962)). “Cross-motions for summary judgment do not alter the basic Rule 56 standard, but rather simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Adria Int’l Group, Inc. [*147] v. Ferre Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001).
A. Claims Against Jiminy Peak.
Plaintiff asserts three claims against Jiminy Peak: negligent operation of a ski area in violation of the MSSA (Count I); negligent failure to undertake duties assumed under a contract with Williams (Count II); and negligent inspection (Count III). [HN1] “To prevail in a negligence action under Massachusetts law, a plaintiff must prove that (1) the defendant owed the plaintiff a duty of reasonable care; (2) the defendant breached this duty; (3) damage to the plaintiff resulted; and (4) the breach of the duty caused this [**13] damage.” Brown v. United States, 557 F.3fd 1, 3 (1st Cir. 2009) (quoting Jupin v. Kask, 447 Mass. 141, 849 N.E.2d 829, 835 (Mass. 2006)). Jiminy Peak asserts that under the MSSA it did not owe Plaintiff any duty to use reasonable care to prevent her collision with an object off the ski trail. Plaintiff argues that Jiminy Peak had a duty to her pursuant to the MSSA and its agreements with Williams College and the USSA.
1. Statutory Duty.
[HN2] The MSSA serves two somewhat contradictory purposes, (1) to limit the liability of ski operators in order to ensure their economic survival and (2) to ensure skier safety. McHerron v. Jiminy Peak, Inc., 422 Mass. 678, 665 N.E.2d 26, 27 (Mass. 1996). Pursuant to the MSSA a ski area operator has a general duty to operate the “ski areas under its control in a reasonably safe manner.” Mass. Gen. Laws ch. 143, § 71N(6) (2008).
However, this duty is sharply limited by other provisions of the act. Of particular relevance in this case is that the MSSA places “the duty to avoid any collision with any . . . object on the hill below” solely on the skier, so long as the object was not improperly marked. Id. at § 71O. The MSSA does shift the duty to avoid collisions back to the ski area operator [**14] when the ski operator has not marked the obstruction “pursuant to the regulations promulgated by the [recreational tramway] board” or “as otherwise provided” in the statute. Id.; see also Eipp v. Jiminy Peak, Inc., 154 F. Supp. 2d 110, 116 (D. Mass. 2001) (declining to enter summary judgment for the ski area operator where skier was injured after striking “a snowgun in the middle of a ski trail”). At the time of Plaintiff’s accident the only active regulations, at 526 C.M.R. § 10, did not address signage requirements.
The other requirements established by the MSSA require ski area operators to (1) mark maintenance and snow-making equipment that is in use (Id. at § 71N(1)), (2) mark with flashing lights trail maintenance and emergency vehicles in use in a ski area (Id. at § 71N(2)), and (3) mark the location of snow-making hydrants “within or upon a slope or trail” § 71N(4)).
[HN3] Under the MSSA, skiers are also solely responsible for any injuries resulting from skiing anywhere other than on an open slope or trail. 2 Id. at § 71O; Spinale v. Pam F., Inc., 1995 Mass. App. Div. 140, 142 (Mass. App. Div. 1995) (“[Section] 71O expressly imposes responsibility for injuries sustained while ‘skiing [**15] on other than an open slope or trail within the ski area’ on the skier, and thereby exempts the ski area operator from liability for the [*148] same.”). The ski area operator has no duty to provide netting or padding around obstacles off the trail. Walsh v. Jiminy Peak, Inc., No. 02-11890-MAP, 2005 U.S. Dist. LEXIS 18463 at *12-13 (D. Mass. Aug. 29, 2005). Nor does it assume such a duty by padding some obstacles. Id. Indeed, this court has previously noted that “imposing liability on ski area operators for duties voluntarily assumed but negligently performed would undercut a key goal of the MSSA,” because it would discourage ski area operators from adding safety features. 2005 U.S. Dist. LEXIS 18463 at *16.
2 [HN4] A “[s]ki slope or trail” is limited to the “area designed by the person or organization having operational responsibility for the ski area as herein defined, including a cross-country ski area, for use by the public in furtherance of the sport of skiing . . . .” Mass. Gen. Laws ch. 143, § 71I.
The parties agree that the lift tower stanchion 3 Plaintiff struck was “off the course and off the trail.” (Dkt. No. 162 at 23.) Given these facts, the MSSA placed the duty to avoid collisions on Plaintiff alone. 4
3 Plaintiff [**16] separately argues that Jiminy Peak had a specific duty to protect skiers from collisions with ski lift stanchions pursuant to 526 C.M.R. 10.09(4)(b). That regulation specifies that ski area operators are to fence or barricade any area of the tramway that could cause injury to a person. However, that requirement appears within a section entitled “Protection Against moving parts or Other Hazards and Clearance Envelopes.” Id. at 10.09(4). Given that context, it is clear that this fencing requirement is only intended to keep members of the public from getting too close to moving parts of a tramway system which might cause injury and does not apply to nonmoving elements like stanchions and support towers.
4 Ski area operators’ liability is also limited such that they “shall not be liable for damages to persons or property, while skiing, which arise out of the risks inherent in the sport of skiing.” Mass. Gen. Laws ch. 143, § 71N(6). The parties disagree about the applicability of this limitation to this case. Jiminy Peak argues that collisions with off-trail objects, regardless of their cause, are a risk inherent in the sport of skiing. Plaintiff notes that the “inherent risks” enumerated [**17] in the statute are natural conditions that can cause a skier to lose control, not dangers that result from such a loss of control. Id. at § 71O (enumerating the “risks inherent in the sport of skiing” as including “variations in terrain, surface or subsurface snow, ice conditions or bare spots”). Plaintiff appears to have the stronger argument that off-trail collisions, though not unexpected, are in a different category than the inherent risks identified in § 71O. As neither party suggests that Plaintiff’s crash resulted from an encounter with a natural condition like those listed in the statute, the limitation on ski area operator liability related to inherent risks of skiing is irrelevant. The determinative fact in this case, undisputed on the record, is that Plaintiff lost control and struck a stationary object, the stanchion, off the trail. The MSSA shields Jiminy Peak from liability in this situation. There is no need for an “inherent risk” analysis.
Plaintiff argues that Jiminy Peak’s duty to her was not fully circumscribed by the MSSA because her injury occurred during the course of a race. Ski racing is certainly dangerous, perhaps more dangerous than ordinary recreational skiing [**18] because speed is pursued sometimes to the limit of a skier’s competence, and beyond. Jiminy Peak undoubtedly was aware of the dangers associated with ski racing and took some steps, together with the race organizers, to try to reduce those dangers. However, no authority suggests that Jiminy Peak or any other ski operator in Massachusetts owes a greater duty to racing skiers than to other, perhaps less experienced, recreational skiers.
Plaintiff asserts that Jiminy Peak assumed a greater duty to racing skiers, similar to the heightened duty one Massachusetts trial court determined ski area operators owed to a minor child enrolled in an instructional program. Sanchez-Souquet v. Jiminy Peak, Inc., 1997 MBAR-094, 1997 Mass. Super. LEXIS 198 (Mass. Super. Ct. 1997). In Sanchez-Souquet, the state court concluded that it was unfair to require “a ski student to ‘assume the risk’ for his injury” [*149] because ski area operators knew that such skiers lacked experience and judgment and were relying on their instructors to keep them safe. 1997 Mass. Super. LEXIS 198 at *9. Plaintiff urges this court to conclude that racing skiers also should be held to a lower standard than regular recreational skiers because, like students [**19] learning to ski, competitive skiers ski at the edge of their ability. Even if the court was persuaded that the court reached the correct outcome in Sanchez-Souquet (a decision the court need not, and does not, reach) it would not be inclined to carve out a further exception for competitive skiers. While it may be unreasonable to presume that a child learning to ski “know[s] the range of his own ability to ski on any slope, trail or area,” a similar presumption cannot be applied to collegiate competitive skiers. Mass. Gen Laws ch. 143, § 71O.
More importantly, [HN5] the MSSA applies to all skiers, a group which includes “any person utilizing the ski area under control of a ski area operator for the purpose of skiing . . . .” Id. at § 71I; Fetzner v. Jiminy Peak, The Mountain Resort, 1995 Mass. App. Div. 55, 56 (Mass. App. Div. 1995) (“The definition of skier in G.L.c. 143 includes any person utilizing the ski area.”). Competitive skiers thus have the same responsibility to avoid collisions with objects off the trail as other skiers. Ski area operators simply have no duty under the statute to prevent the injuries suffered by a skier who collides with an off-course obstacle. Without such a duty, [**20] Jiminy Peak’s alleged negligence cannot give rise to liability. McHerron v. Jiminy Peak, Inc., 422 Mass. 678, 665 N.E.2d 26, 28 (Mass. 1996) (“As the defendant had no duty to remedy a statutorily defined unavoidable risk inherent in the sport of skiing, the defendant’s alleged negligence in failing to eliminate the [risk] does not create liability.”).
2. Contractual Duty.
Plaintiff asserts that even if Jiminy Peak did not have a duty to her pursuant to the MSSA or through its voluntary safety efforts, it did have a contractual duty to undertake specific steps to ensure the competition would be as safe as possible. Failing to take those steps, Plaintiff asserts, constituted a breach of a separate, non-statutory duty. Massachusetts recognizes that “a claim in tort may arise from a contractual relationship . . . and may be available to persons who are not parties to the contract.” Parent v. Stone & Webster Engineering Corp., 408 Mass. 108, 556 N.E.2d 1009, 1012 (Mass. 1990). However, Jiminy Peak did not obligate itself to provide particular safety measures, such as netting or padding, in either of the two contracts relied on by Plaintiff. Pursuant to its agreement with Williams College, Jiminy Peak agreed to consult [**21] about safe training conditions for Williams skiers and to permit use of several trails for the Winter Carnival competition. Under the Alpine Schedule Agreement, the competition organizers are responsible for “working with” the ski area operator to ensure that ski facilities were prepared in accordance with all USSA rules, regulations, and applicable homologation requirements. The ski area operator, Jiminy Peak, did not itself undertake that responsibility and therefore any failure to ensure that applicable safety requirements were met did not give rise to tort liability.
B. Claims Against Competition Organizers and Officials.
1. The USSA Waiver.
Defendants collectively argue that Plaintiff’s various negligence claims are precluded by the liability waiver executed when her USSA membership was renewed the summer before her accident. Plaintiff [*150] asserts that the waiver does not bar her claims because its language was ambiguous as to the persons and entities it covered. In resolving this question the court applies Colorado law, as urged by Plaintiff and agreed to by Defendants. The waiver includes a choice of law provision selecting Colorado law and [HN6] in the absence of a “substantial Massachusetts [**22] public policy reason,” Massachusetts law honors choice of law provisions in contracts. Jacobson v. Mailboxes Etc. U.S.A., 419 Mass. 572, 646 N.E.2d 741, 744 (Mass. 1995).
[HN7] Under Colorado law “[e]xculpatory agreements are disfavored and, therefore, they are strictly construed against the party seeking to limit its liability.” Del Bosco v. United States Ski Ass’n, 839 F. Supp. 1470, 1473 (D. Colo. 1993). Under Colorado law the applicability of a liability waiver is a legal question to be resolved by the court after consideration of 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 v. Dressel, 623 P.2d 370, 376 (Colo. 1981) (citations omitted). Plaintiffs urge the court to rule that the waiver invoked by Defendants is inapplicable under the third and fourth factors.
As to the third factor, Plaintiff argues that the USSA waiver was a contract of adhesion because the USSA’s dominance over amateur ski racing in this country prevented her from being able to negotiate less onerous contract terms with the USSA. [HN8] “Colorado [**23] defines an adhesion contract as ‘generally not bargained for, but imposed on the public for a necessary service on a take it or leave it basis.’” Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 (D. Colo. 1992) (citing Jones v. Dressel, 623 P.2d 370, 374 (Colo. 1981)).
On the undisputed facts of this case, Plaintiff’s “adhesion” argument must fail, because under Colorado law recreational activities and services are not essential. Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 898 (D. Colo. 1998) (holding that waiver was not fairly entered because skier was skiing “as a part of work, not as a part of recreation”); Bauer, 788 F. Supp. at 475 (enforcing waiver executed as part of ski rental, even though all ski rental outlets used similar waivers, because such services were recreational, not essential). Plaintiff completed the USSA waiver in order to engage in a recreational activity. The nature of the activity is not changed by its competitive nature, its subjective importance in Plaintiff’s life, or the fact that a single entity controlled virtually all opportunities to engage in the recreational activity. But see O’Connor v. United States Fencing Ass’n, 260 F. Supp. 2d 545, 552 (E.D.N.Y. 2003) [**24] (concluding that a liability waiver was not binding under Colorado law because the waiver’s author so controlled the sport of fencing that an athlete wishing to compete had no choice but to agree to the terms in the waiver).
Finally, Plaintiff argues that the waiver did not express the parties’ intentions in clear and unambiguous language. Having reviewed the waiver, the court concludes that the language of the waiver was clear and unambiguous. Clear language indicates that the signer is waiving all claims against the USSA including those based on negligence, as indicated in bold, italic, capital letters. See Jones, 623 P.2d at 378. The waiver defined USSA quite expansively to encompass a host of individuals and groups including all affiliates, volunteers, competition organizers, sponsors, coaches, and representatives. It is clear that the list was meant to encompass any [*151] one involved in running a competition sanctioned by the USSA. Finally, it is undisputed that skiers, including Plaintiff, participating in the Williams Winter Carnival knew the event was sanctioned by the FIS through the USSA because they knew they were competing, in part, for FIS points.
2. Gross Negligence.
Plaintiff [**25] asserts that even if the USSA waiver is valid, she should be able to proceed against these Defendants on a theory of gross negligence. The argument is colorable but ultimately unpersuasive.
It is true that [HN9] under Colorado law an exculpatory agreement cannot “provide a shield against a claim for willful and wanton negligence.” Id. at 376. In Colorado an individual who “purposefully committed an affirmative act which he knew was dangerous to another’s person and which he performed heedlessly, without regard to the consequences or rights and safety of another’s person” can be found to have acted with willful and wanton negligence. Barker v. Colorado Region–Sports Car Club, Inc., 35 Colo. App. 73, 532 P.2d 372, 379 (Colo. Ct. App. 1974). In Massachusetts, waivers may only release a defendant from ordinary negligence. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 687 N.E.2d 1263, 1265 (Mass. App. Ct. 1997).
Plaintiff has alleged in her complaint that Defendants were grossly negligent. [HN10] Gross negligence involves “materially more want of care than constitutes simple inadvertence,” though “it is something less than  willful, wanton and reckless conduct.” Altman v. Aronson, 231 Mass. 588, 121 N.E. 505, 506 (Mass. 1919). Despite [**26] the severity of Plaintiff’s injuries, the conduct alleged by Plaintiff is simple inadvertence. There is no evidence in the record, and indeed no allegation, that any of the Defendants, or anyone at the competition, became aware that there was an area of the trail without netting where netting was normally placed and declined to remedy the situation. At most there was a collective failure to take a step that might have lessened the injuries suffered by Plaintiff. No reasonable jury could find that this simple inadvertence, no matter how tragic its consequences, constituted gross negligence.
C. Third-Party Claims.
Having concluded that all Defendants, including the Third-Party Plaintiffs, are entitled to summary judgment, the court necessarily grants Third-Party Defendants’ motion for summary judgment on the third-party contribution claims asserted against them. Any negligence on the part of Forest Carey, whether in his capacity as a race official or as Plaintiff’s coach is expressly covered by the USSA waiver. Even if the court had concluded that the waiver was inapplicable, Third-Party Defendants would be entitled to summary judgment because Carey simply did not breach any duty he owed [**27] to Plaintiff. His role as a race official concluded the day before Plaintiff’s accident. As a competitor on the following day, Plaintiff was outside the group of people likely to be injured by his acts or omissions as a referee. Therefore he had no duty with respect to her safety. See Matteo v. Livingstone, 40 Mass. App. Ct. 658, 666 N.E.2d 1309, 1312 (Mass. App. Ct. 1996) (citing Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928)). The risk which caused Plaintiff harm, improper safety fencing, was similarly not reasonably foreseeable to Carey in his capacity as her coach. See Moose v. Mass. Inst. of Tech., 43 Mass. App. Ct. 420, 683 N.E.2d 706, 710 (Mass. App. Ct. 1997) (upholding a jury’s finding that a coach was negligent where the risk which caused a student-athlete’s [*152] injury was reasonably foreseeable). Third-party Defendants would thus be entitled to summary judgment even absent the USSA waiver.
This is a terribly sad case. A young woman has been tragically, permanently injured. Putting aside considerations of legal liability, somebody connected with the 2006 Winter Carnival should, as a matter of conscience and professionalism, have noticed the unprotected ski tower and made sure that appropriate netting [**28] was installed to provide a greater degree of protection to the competitors.
It would, however, be false compassion now to ignore the undisputed facts and the unavoidable law. The Massachusetts Ski Safety Act, in the case of Jiminy Peak, and the USSA waiver, in the case of the other Defendants, forecloses any possibility of liability for payment of damages to Plaintiff in these circumstances. To encourage pursuit of a lawsuit lacking a legal basis would only serve to compound the tragedy.
For the reasons set forth above, Defendants’ Motions for Summary Judgment (Dkt. Nos. 135, 137, 138, 139, 140) are hereby ALLOWED, Third-Party Defendants’ Motion for Summary Judgment (Dkt. No. 143) is hereby ALLOWED, and Plaintiff’s Motion for Partial Summary Judgment (Dkt. No. 157) is hereby DENIED. The trial scheduled for September 28, 2009 will obviously not go forward.
The Clerk is ordered to enter judgment for Defendants; the case may now be closed.
It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge
Benford et al. v. RDL, Inc., 223 Ga. App. 800; 479 S.E.2d 110; 1996 Ga. App. LEXIS 1284; 96 Fulton County D. Rep. 4312Posted: March 18, 2013
Benford et al. v. RDL, Inc., 223 Ga. App. 800; 479 S.E.2d 110; 1996 Ga. App. LEXIS 1284; 96 Fulton County D. Rep. 4312
Benford et al. v. RDL, Inc.
223 Ga. App. 800; 479 S.E.2d 110; 1996 Ga. App. LEXIS 1284; 96 Fulton County D. Rep. 4312
December 4, 1996, Decided
SUBSEQUENT HISTORY: [***1] Certiorari Applied For.
PRIOR HISTORY: Bailment; release. Fulton Superior Court. Before Judge Cook.
DISPOSITION: Judgment affirmed.
COUNSEL: James B. Gurley, for appellants.
Long, Weinberg, Ansley & Wheeler, Kenneth M. Barre, for appellee.
JUDGES: ANDREWS, Judge. Pope, P. J., and Smith, J., concur.
OPINION BY: ANDREWS
[**111] [*800] ANDREWS, Judge.
Mr. Benford and his wife appeal from the trial court’s grant of summary judgment to RDL, Inc. d/b/a Rocky Mountain Ski Shop in Mr. Benford’s suit alleging breach of warranty, breach of contract, and negligence and Mrs. Benford’s claim of loss of consortium.
1. Viewed under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 S.E.2d 474) (1991), the evidence on summary judgment was that Mr. Benford went to the ski shop on December 12, 1992 to rent skis and boots for an upcoming ski trip. He was assisted by Cooper, [*801] who asked Benford to pick out a pair of boots and to complete and sign a Rental Agreement and Release of Liability. Benford acknowledged reading, initialling, and signing the document which states that:
“I accept for use as is the equipment listed on this form and accept full responsibility for the care of this equipment. I have made no misrepresentations to this [***2] ski shop regarding my height, weight, age or skiing ability.
“I understand and am aware that skiing is a HAZARDOUS activity. I understand that the sport of skiing and the use of this ski equipment involve a risk of injury to any and all parts of my 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 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 safety or freedom from injury while skiing. I further agree and understand that this ski-boot- binding system may reduce but NOT eliminate the risk of injuries to the lower portion of my leg. However, I agree and understand that this ski-boot-binding system does NOT reduce the risk of injuries to my knees or any other parts of my body.
“I agree that I will release this ski shop from any and all responsibility or liability for injuries or damages to the user of the equipment listed on this form, or to any [***3] other person. I agree NOT to make a claim against or sue this ski shop for injuries or damages relating to skiing and/or the use of this equipment. (Please initial ) [Benford's initials].
“In consideration for being able to rent this ski equipment, I hereby agree to accept the terms and conditions of this contract. This document constitutes the final and entire agreement between this ski shop and the undersigned. There are NO WARRANTIES, express or implied, which extend beyond the description of the ski equipment listed on this form.
“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 myself and this ski shop and I sign it of my own free will.”
Pursuant to the height, weight, and skill level information provided by Benford, Cooper set the bindings of the skis at 5 1/2. This setting was based on a chart used in the business which the person doing the settings consults and then makes adjustments to the bindings, toes and heels of the boots.
[**112] Benford picked the skis up on December 26 and left with his wife [*802] and some friends on a ski trip. On the first day of the [***4] trip, Benford had made six or seven ski runs and had fallen uneventfully a couple of times. These falls did not cause the bindings to release. On his last run, Benford was in the process of coming to a stop to assist his wife who had fallen. Because of a change in the slope where he stopped, his center of gravity got out over his skis and he fell. While the right ski did release, the left one did not and he tore ligaments in his left knee. When he returned the skis to the shop, he was given a free week ski rental, good any time.
Because Benford was injured and contended the skis did not release, Jackson, the store manager, had the bindings tested with the Vermont Calibrator, a device used to measure the torque it takes to remove a boot from its binding, and the skis rented by Benford passed the test. All skis rented by the ski shop were tested on this device once a year, and randomly selected sets were tested periodically.
2. Benford acknowledges that these facts establish the relationship of bailor-bailee, pursuant to O.C.G.A. § 44-12-60. Therefore, the relationship between them is governed by the terms of the Rental Agreement and the statutory obligations of a bailor under O.C.G.A. § [***5] 44-12-63. Mark Singleton Buick v. Taylor, 194 Ga. App. 630, 632 (1) (391 S.E.2d 435) (1990); Hall v. Skate Escape, Ltd., 171 Ga. App. 178 (319 S.E.2d 67) (1984).
3. Benford has failed totally to come forward with evidence concerning negligence by the ski shop. Lau’s Corp., supra; Prince v. Atlanta Coca-Cola Bottling Co., 210 Ga. App. 108, 109 (1) (435 S.E.2d 482) (1993). 1
1 Even had he been able to do so, this is one of those rare cases where, as a matter of law, it can be said that Benford assumed the risk of exactly what happened to him. Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 823 (409 S.E.2d 524) (1991).
Also, even assuming some negligence had been shown, [HN1] “in Georgia, the general rule is that a party may exempt himself by contract from liability to the other party for injuries caused by his negligence, and the agreement is not void for contravening public policy. [Cits.]” Hall, supra at 179. Here, the agreement clearly and prominently did just that. Mercedes-Benz [***6] Credit Corp. v. Shields, 199 Ga. App. 89, 91 (403 S.E.2d 891) (1991).
4. Benford’s claims of breach of warranty and contract suffer the same fate. There is no showing by Benford of any latent defect in the skis or bindings, such as that in Hall, supra. Therefore, the covenant not to sue is not in contravention of O.C.G.A. § 44-12-63 (3). Mercedes-Benz, supra; Citicorp Indus. Credit v. Rountree, 185 Ga. App. 417, 422 (2) (364 S.E.2d 65) (1987). It is difficult to envision how the waiver language here could have been any clearer.
[*803] Judgment affirmed. Pope, P. J., and Smith, J., concur.
By Recreation Law Recfirstname.lastname@example.org James H. Moss Jim Moss
Salvini v. Ski Lifts, Inc., 2008 Wash. App. LEXIS 2506
Kenneth Salvini et al., Individually, Respondents, v. Ski Lifts, Inc., Appellant.
COURT OF APPEALS OF WASHINGTON, DIVISION ONE
2008 Wash. App. LEXIS 2506
October 20, 2008, Filed
NOTICE: Rules of the Washington Court of Appeals may limit citation to unpublished opinions. Please refer to the Washington Rules of Court.
SUBSEQUENT HISTORY: Reported at Salvini v. Ski Lifts, Inc., 2008 Wash. App. LEXIS 2529 (Wash. Ct. App., Oct. 20, 2008)
PRIOR HISTORY: [*1]
Appeal from King County Superior Court. Docket No: 05-2-13652-9. Judgment or order under review. Date filed: May 31, 2007. Judge signing: Honorable Laura Inveen.
CORE TERMS: ski lift, sport, jump, terrain, skier’s, ski area, inherent risk, notice, jumping, ski, dangerous conditions, warning, jury instructions, overshooting, warn, landing, invitee, limiting instruction, safe, prior incident, unreasonably, sentence, duty to protect, normal part, probative, “discover, owed, speed, top, duty of care
COUNSEL: Counsel for Appellant(s): William Robert Hickman, Pamela A. Okano, Reed McClure, Ruth Nielsen, Nielsen Law Office Inc PS, Wendy E Lyon, Riddell Williams PS, Seattle, WA; James W. Huston, Morrison & Foerster, LLP, San Diego, CA; Beth S. Brinkmann, Ketanji Brown Jackson, Morrison & Foerster, LLP, Washington, DC.
Counsel for Respondent(s): John Robert Connelly Jr., Connelly Law Offices, James Walter Beck, Gordon Thomas Honeywell, Tacoma, WA; Philip Albert Talmadge, Tukwila, WA.
JUDGES: Authored by Linda Lau. Concurring: Marlin Appelwick, Ronald Cox.
OPINION BY: Linda Lau
¶1 Lau, J. — While attempting a terrain park ski jump at a ski area, Kenneth Salvini was severely injured. Salvini and his parents brought a negligence action against the owner-operator Ski Lifts, Inc. The jury found Salvini 55 percent responsible and Ski Lifts 45 percent responsible. Ski Lifts appeals, arguing that the trial court improperly instructed the jury on duty, inherent risk, and signage, and that it admitted prejudicial and irrelevant evidence of prior accidents. We conclude that [*2] the jury instructions were proper and that the trial court did not abuse its discretion in admitting evidence of prior accidents for the limited purpose of notice. Accordingly, we affirm.
¶2 Ski Lifts owns and operates Snoqualmie, a ski area that features downhill skiing and a terrain park filled with artificial jumps and structures. Among these features are “table top” jumps, which have a takeoff ramp, a flat deck section, and a landing slope. To jump a table top successfully, a skier must approach the takeoff ramp with sufficient speed to launch into the air and clear the deck while maintaining enough control to land upright on the landing slope. “Overshooting” occurs when the skier lands past the end of the landing slope.
¶3 At approximately 7 P.M. on February 11, 2004, Kenneth Salvini arrived at Snoqualmie with his father and some friends. It was night, and the snow was rough, icy, and hard. After spending about an hour skiing at the Alpental downhill area, the main ski lift broke down. They then moved to the Summit Central downhill area. Salvini and a friend took a lift to the top of the mountain and skied over to the terrain park. A message hand written in light blue pen on a whiteboard [*3] sign posted near the lift read, “Terrain park Tip of the Week: Most injuries in the terrain park are as a result of the rider out-jumping the landing. Thanks, your friendly Ski Patrol.” Ex. 7. A Ski Lifts employee testified that the message was posted following several overshooting incidents. But Salvini and his friend did not see the sign.
¶4 Salvini, an experienced skier, decided to try a table top jump in the lower part of the terrain park–one that he had successfully jumped while skiing the previous week. Salvini testified that his goal was to approach the jump with “enough speed to make sure [he] cleared the deck.” Verbatim Report of Proceedings (VRP) (Mar. 22, 2007) at 83. Ski Lifts asserted that Salvini approached the jump at an excessively high speed, but Salvini presented evidence that his speed was within the range expected at a ski jump. He lost control, rotated backwards, “overshot” the landing ramp, and landed on his back onto a flat or nearly flat area. Salvini is now a quadriplegic.
¶5 Salvini and his parents filed a negligence action against Ski