Jozewicz v. GGT Enterprises, LLC; 2010 U.S. Dist. LEXIS 53937
The public policy exception allows the release to be void when the recalled product was not pulled from the rental fleet.
This is a Utah ski rental case. The plaintiff rented skis from the defendant. While skiing, the plaintiff fell injuring her neck. She claimed she fell because the bindings prematurely released. The bindings were manufactured by K2 a subsidiary of the Jarden Corporation.
Prior to the plaintiff’s injury, K2 had notified the Consumer Product Safety Commission and issued a recall for the bindings the plaintiff was using. The recall was based due to a tendency for the bindings to unexpectedly release. The recall was issued by the CPSC and K2 had sent notice of the recall to retail and rental shops.
The plaintiff filed this suit in federal court against the defendant rental shop and the binding manufacture K2. The defendant rental shop filed this motion to dismiss because the plaintiff had signed a release when she rented the recalled skis and bindings.
Summary of the case
The defendant rental shop filed a motion for summary judgment because the plaintiff had signed a release upon renting the skis and bindings. The court first looked at releases and Utah’s law and found Utah allows people to “contract away their rights to recover in tort for damages caused by the ordinary negligence of others.” Under Utah’s law, there are three exceptions that can void a release when:
(1) the release offends public policy,
(2) the release is for activities that fit within the public interest exception, or
(3) the release is unclear or ambiguous.
The court found that the second and third exceptions were not at issue here. The first issue, that releases must be compatible with public policy under Utah’s law. The court looked at the public policy exception to the rule slightly different in Utah than in most other states that allow a release to be voided due to public policy issues.
The court looked at the federal law that created the Consumer Products Safety Commission and created the requirement that products be recalled.
Under 15 U.S.C. § 2064(b), manufacturers, distributors, and retailers are required to notify the United States Consumer Product Safety Commission when they become aware a product (1) fails to comply with applicable safety standards, (2) fails to comply with other rules, regulations, standards, or bans under any acts enforced by the Commission, (3) “contains a defect which could create a substantial product hazard,” or (4) “creates unreasonable risk of serious injury or death.”
The court then stated: “The law requires distributors and retailers to heed recall alerts issued by the Commission and ensure defective products are either fixed or not sold.” Finding this requirement puts an extreme burden on shops, retail or rental when dealing with recalled products.
The rental shop argued that the federal law cannot preempt state law, and state law allows releases. The court agreed, however, the court stated the law did not conflict or preempt the Utah law.
The court went on to say.
The rental of the ski bindings at issue in this case became unlawful once the recall notice became effective. Public policy should not favor allowing a party to insulate itself from harms caused to others arising from unlawful acts.
The said that if a release relieved the retailer of the duty to recall products, then the effect of the law would be nullified and would violate the value of the law. Public policy issues should encourage compliance with laws designed to make products safer not void them.
The court held the rental companies arguments were not valid and denied the motion for summary judgment.
So Now What?
If you get a recall notice, and you are in a retail store, rental shop, or distributor, remove the product from the shelves and/or the rental fleet. Period. The judge in his final sentence stated: “GGT’s preinjury release is unenforceable and invalid as a matter of public policy.” There is no leeway in that statement.
This may create disaster in a small rental shop. Most times the shop has one binding on all of its skis. It makes setting the bindings easier and makes training the employees on setting the bindings much easier also.
It can be a scary situation when you open an email and find you have no rental fleet. You should contact the company immediately and tell them that you are out of business effectively unless they respond and assist you in correcting the entire recalled product or replacing it.
This may be an issue you want to discuss with someone when you are negotiating bindings for your rental fleet.
Product recalls are not minor matter. Any product you have in your store that is subject to a recall is no longer available for sale until after the product has been fixed according to the manufacture’s requirements.
What do you think? Leave a comment.
Copyright 2012 Recreation Law (720) Edit Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, GGT Enterprises, Llc; K2 Corporation; Jarden Corporation, Utah, Release, Rental Fleet , CPSC, Product Recall, Ski Bindings, Ski Rentals, Public Policy,
Jozewicz v. GGT Enterprises, LLC; 2010 U.S. Dist. LEXIS 53937
Laura Jozewicz, Plaintiff, vs. GGT Enterprises, Llc; K2 Corporation; and Jarden Corporation, Defendants.
Case No. 2:09-cv-00215-CW
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
2010 U.S. Dist. LEXIS 53937
June 2, 2010, Decided
June 2, 2010, Filed
CORE TERMS: public policy concern, preinjury, binding, alert, distributor, rental, consumer products, consumer, retailer, citation omitted, ski, risks of injury, skiing, sports, skis, serious injury, manufacturer, recreational, invalidated, safety standards, public policy, unreasonable risk, manufacture, notice, hazard, release agreement, unenforceable, collectively, inventory, rented
COUNSEL: [*1] For Laura Jozewicz, an individual, Plaintiff: Jordan P. Kendell, Robert G. Gilchrist, LEAD ATTORNEYS, EISENBERG & GILCHRIST, SALT LAKE CITY, UT.
For K2, a Delaware corporation, Defendant: Cobie W. Spevak, Gainer M. Waldbillig, LEAD ATTORNEYS, FORD & HUFF LC (SLC), SALT LAKE CITY, UT.
For Jarden, a Delaware corporation, Defendant: Gainer M. Waldbillig, LEAD ATTORNEY, Cobie W. Spevak, FORD & HUFF LC (SLC), SALT LAKE CITY, UT.
For GGT Enterprises, a Utah corporation, Defendant: Adam Strachan, LEAD ATTORNEY, STRACHAN STRACHAN & SIMON, LITIGATION, PARK CITY, UT.
JUDGES: Clark Waddoups, United States District Judge.
OPINION BY: Clark Waddoups
MEMORANDUM DECISION AND ORDER
While skiing at Alta ski area, Plaintiff Laura Jozewicz (“Jozewicz”) fell and injured her neck. Jozewicz contends she fell because the binding on her skis unexpectedly released due to a product defect. Jozewicz rented the skis from Defendant GGT Enterprises, LLC (“GGT”). At the time of rental, a recall notice was in effect for the binding, but GGT did not remove the product from its rental inventory. Nevertheless, GGT seeks dismissal of Jozewicz’s negligence claim on the basis that she signed a release from liability at the time she rented [*2] the skis. For the reasons discussed below, the court denies GGT’s motion to dismiss.
On March 17, 2008, GGT rented skis to Jozewicz. On March 18, 2008, Jozewicz fell and injured her neck while skiing at Alta ski area. Jozewicz claims her fall occurred when the Marker MI Demo binding on her rental ski released unexpectedly. Jozewicz alleges that Defendants K2 Corporation and Jarden Corporation (collectively “K2/Jarden”) manufactured the ski binding. Prior to Jozewicz’s fall, K2/Jarden notified the United States Consumer Product Safety Commission (“Commission”) regarding the binding, and the Commission subsequently issued a recall alert on May 30, 2007, due to “Unexpected Release, Fall Hazard.” 1 The recall alert stated that “[s]ki shops with these bindings in their rental inventory should not rent this equipment to consumers until it has been upgraded.” 2 The recall further stated that “[s]kiers can unitentionally displace a lever at the rear of the binding,” which “[i]f it is fully displaced, . . . can result in the unexpected release of the binding and possibly cause the user to fall.” 3
1 Recall Alert (May 30, 2007) (Docket No. 29, Ex. A).
Prior to renting her [*3] skis from GGT, Jozewicz signed an “Equipment Rental and Liability Release Agreement,” which states in relevant part:
I understand that the binding system cannot guarantee the user’s safety. In downhill skiing, the binding systems will not release at all times or under all circumstances where release may prevent injury or death, nor is it possible to predict every situation in which it will release. . . .
I understand that the sports of skiing, snowboarding, skiboarding, snowshoeing and other sports (collectively “RECREATIONAL SNOW SPORTS”) involve inherent risks of INJURY and DEATH. I voluntarily agree to expressly assume all risks of injury or death that may result from these RECREATIONAL SNOW SPORTS, or which relate in any way to the use of this equipment. . . .
I AGREE TO RELEASE AND HOLD HARMLESS the equipment rental facility, its employees, owner, affiliates, agents, officers, directors and the equipment manufacturers and distributors and their successors in interest (collectively “PROVIDERS”), from all liability for injury, death, property loss and damage which results from the equipment user’s participation in the RECREATIONAL SNOW SPORTS for which the equipment is provided, or [*4] which is related in any way to the use of this equipment, including all liability which results from the NEGLIGENCE of PROVIDERS, or any other person or cause.
I further agree to defend and indemnify PROVIDERS for any loss or damage, including any that results from claims or lawsuits for personal injury, death, and property loss and damage related in any way to the use of this equipment. 4
GGT claims the release agreement bars Jozewicz’s negligence claim.
4 Equipment Rental & Liability Release Agreement (Docket No. 13, Ex. 2) (emphasis in original).
I. STANDARD FOR REVIEW
Defendant GGT brings this motion under Federal Rule of Civil Procedure 12(b)(6). When considering a 12(b)(6) motion, “a court must accept as true all well-pleaded facts, as distinguished from conclusory allegations, and those facts must be viewed in the light most favorable to the nonmoving party.” 5 The complaint must include “enough facts to state a claim to relief that is plausible on its face.” 6 “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim [*5] for which relief may be granted.” 7 Consequently, a court does not look at evidence outside of a pleading to determine such motions. 8 If a court does rely “on material from outside the pleadings, the court converts the motion to dismiss into a motion for summary judgment.” 9 Because the court relies on material outside of the pleadings in this case, the court converts this motion into a motion for summary judgment.
5 Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007) (citation omitted).
6 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).
7 Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010) (citation omitted).
8 Dobsen v. Anderson, No. 08-7018, 2008 U.S. App. LEXIS 22820, at *8-9 (10th Cir. Nov. 4, 2008).
9 Id. at *9 (quotations and citation omitted).
II. PREINJURY RELEASES
A. Limitations on Preinjury Releases
Without question, individuals “may contract away their rights to recover in tort for damages caused by the ordinary negligence of others.” 10 The Utah Supreme Court has recognized, however, “that preinjury releases are not unlimited in power and can be invalidated in certain circumstances,” including when (1) the release offends public policy, (2) the release is for activities [*6] that fit within the public interest exception, or (3) the release is unclear or ambiguous. 11 The second limitation is not at issue here because “preinjury releases for recreational activities,” such as skiing, “cannot be invalidated under the public interest exception.” 12 Likewise, the third limitation is not at issue because Jozewicz conceded during oral argument that the release is not unclear or ambiguous. Thus, the prevailing issue in this case is whether a public policy concern overwhelms the effect of the preinjury release that Jozewicz signed.
10 Pearce v. Utah Athletic Found., 2008 UT 13, P 14, 179 P.3d 760, 765 (citations omitted).
11 Id. (citations omitted).
12 Id. P 18.
B. Public Policy Considerations
Preinjury releases must be compatible with public policy to be enforceable. 13 Previously, the Utah Supreme Court has invalidated preinjury releases when they were contrary to public policy set forth in statutory provisions. The court has recognized that “[w]hen . . . the Legislature clearly articulates public policy, and the implications of that public policy are unmistakable, we have the duty to honor those expressions of policy in our rulings.” 14 Thus, in Hawkins v. Peart, the [*7] Utah Supreme Court held that public policy invalidated a preinjury release signed by a parent on behalf of a minor child. 15 The court looked to Utah statute and found that it “provides various checks on parental authority to ensure a child’s interests are protected.” 16 In particular, it found that when a child is injured, statutory law precludes a parent from settling a claim, unless the parent is appointed as conservator for the child. 17 Based on this clear legislative intent to protect a minor’s interest post injury, the court concluded that a preinjury release for a minor child likewise was unenforceable. 18
13 Id. P 15 (citing Rothstein v. Snowbird Corp., 2007 UT 96, P 7, 175 P.3d 560).
14 Rothstein v. Snowbird Corp., 2007 UT 96, P 20, 175 P.3d 560.
15 Hawkins v. Peart, 2001 UT 94, PP 12-13, 37 P.3d 1062.
16 Id. P 11.
17 Id. (citing Utah Code Ann. § 75-5-404 (1993)).
18 Id. PP 12-13.
As applicable to this case, Congress has expressed its concern about product defects that pose a significant risk of injury or death. In an effort to protect the public from such defects, it enacted the Consumer Product Safety Act (the “Act”). The stated purpose of the Act is:
(1) to protect the public against unreasonable [*8] risks of injury associated with consumer products; (2) to assist consumers in evaluating the comparative safety of consumer products; (3) to develop uniform safety standards for consumer products and to minimize conflicting State and local regulations; and (4) to promote research and investigation into the causes and prevention of product-related deaths, illnesses, and injuries. 19
Through this legislation, Congress has stated its intent to create laws that protect the public from unreasonable risk of harm from defective products and to provide a uniform regulatory scheme to promote product safety.
19 15 U.S.C. § 2051(b) (2010).
Under 15 U.S.C. § 2064(b), manufacturers, distributors, and retailers are required to notify the United States Consumer Product Safety Commission when they become aware a product (1) fails to comply with applicable safety standards, (2) fails to comply with other rules, regulations, standards, or bans under any acts enforced by the Commission, (3) “contains a defect which could create a substantial product hazard,” or (4) “creates unreasonable risk of serious injury or death.” 20 Recall alerts arising from such notices are specifically designed to prevent serious [*9] injuries. Under 15 U.S.C. § 2068, manufacturers and distributors are charged with honoring the recall alerts issued by the Commission. The law in effect at the time of Jozewicz’s accident stated:
It shall be unlawful for any person to –
(1) manufacture for sale, offer for sale, distribute in commerce, or import into the United States any consumer product which is not in conformity with an applicable consumer product safety standard under this chapter;
(2) manufacture for sale, offer for sale, distribute in commerce, or import into the United States any consumer product which has been declared a banned hazardous product by a rule under this chapter. 21
20 Id. § 2064(b).
21 Id. § 2068(a)(1)-(2) (2006). This Section was amended on August 14, 2008, after Jozewicz’s injury occurred. Section 2068(a) now prohibits the sale, manufacture for sale, distribution, or importation of any product (1) “that is not in conformity with an applicable consumer product safety rule,” (2) that is subject to a voluntary corrective action, (3) that is an imminent hazard and subject to a Commission’s order, or (4) that is a banned hazardous substance. Id. § 2068(a)(1)-(2) (2010).
Congress enacted the statute to ensure [*10] safe products are provided to the public and to limit the risk of injury. Once a manufacturer, distributor, or retailer reports a defect to the Commission and a recall alert is published, the alert would have no effect if other retailers were not required to take action to correct the defect or remove the product from their inventory. The law requires distributors and retailers to heed recall alerts issued by the Commission and ensure defective products are either fixed or not sold.
Jozewicz argues that Congress’s public policy concern to prevent unreasonable risk of serious injury or death to the public meets the public policy standard set forth by the Utah Supreme Court, and therefore invalidates her release of GGT’s negligence. GGT contends, however, that Congress did not intend for the Consumer Product Safety Act to preempt state law, and no private cause of action exists under 15 U.S.C. § 2064(b). While this is true, this does not nullify the stated public policy concerns that override the right of parties to contract away tort liability. The rental of the ski bindings at issue in this case became unlawful once the recall notice became effective. Public policy should not favor [*11] allowing a party to insulate itself from harms caused to others arising from unlawful acts. Moreover, a decision that public policy causes a preinjury release to be invalid in this case does not cause GGT to be held liable under the Act, nor does it preempt state law. It merely recognizes Congress’s concern to minimize unreasonable risk to the public of serious injury or death. Such a concern is particularly relevant when a latent defect exists of which distributors and retailers are or should be aware, but not a consumer.
The implication of allowing distributors and retailers to contract away liability for noncompliance with established safety standards would increase the risk of injury and would be contrary to Congress’s express public policy concerns. Furthermore, validating the release of liability for noncompliance with Federal law would effectively reduce or eliminate the responsibility that distributors and retailers have to make sure the products they sell or rent are safe. Public policy should encourage compliance with safety laws, not disregard for such laws. Due to a strong public interest in ensuring adherence to recall alerts, the court concludes that GGT’s release is unenforceable [*12] as a matter of public policy.
GGT’s preinjury release is unenforceable and invalid as a matter of public policy. For this reason, GGT’s motion is DENIED. 22
22 Docket No. 12.
DATED this 2nd day of June, 2010.
BY THE COURT:
/s/ Clark Waddoups
United States District Judge
[Wilderness Medical Society (WMS) Updates]
|Home | My Malakye | The Industry | For Employers | About Malakye | MalakyeB2B
Copyright © 2006 – 2009 Malakye.com
This email is being sent to you by:
INSIDEOUTDOOR Magazine | 745 N Gilbert Road | Gilbert, AZ 85234
berge | (480) 503-0770
Sign up for your
FREE SUBSCRIPTION TODAY
Pearce v. Utah Athletic Foundation, 2008 UT 13; 179 P.3d 760; 597 Utah Adv. Rep. 13; 2008 Utah LEXIS 16Posted: October 18, 2010
James Pearce, Plaintiff and Appellant, v. Utah Athletic Foundation, dba Utah Winter Sports Park, and Oscar Podar, a foreign individual or company, Defendants and Appellees.
SUPREME COURT OF UTAH
2008 UT 13; 179 P.3d 760; 597 Utah Adv. Rep. 13; 2008 Utah LEXIS 16
February 12, 2008, Filed
SUBSEQUENT HISTORY: Released for Publication April 3, 2008
PRIOR HISTORY: [***1]
Third District, Silver Summit. The Honorable Bruce C. Lubeck. No. 040500322.
COUNSEL: Fred R. Silvester, Spencer C. Siebers, Salt Lake City, for plaintiff.
Phillip S. Ferguson, Karra J. Porter, Ruth A. Shapiro, Salt Lake City, for defendants.
JUDGES: PARRISH, Justice. Chief Justice Durham, Associate Chief Justice Wilkins, Justice Durrant, and Justice Nehring concur in Justice Parrish’s opinion.
OPINION BY: PARRISH
[**762] PARRISH, Justice:
[*P1] In 2003, James Pearce suffered a back injury while riding a bobsled at the Utah Winter Sports Park in Park City, Utah. Pearce brought ordinary negligence and gross negligence claims against the Utah Athletic Foundation (“UAF”), which owns and operates the bobsled track. The district court granted summary judgment to UAF on the ordinary negligence claim because Pearce, prior to riding the bobsled, had signed a liability waiver in which he released any negligence claim against UAF. The district court also granted summary judgment to UAF on the gross negligence claim, holding that Pearce had not presented sufficient evidence to show that UAF’s conduct rose to the level of gross negligence. Pearce appeals both holdings. We affirm the district court’s grant of summary judgment on [***2] the ordinary negligence claim but reverse the district court’s grant of summary judgment on the gross negligence claim.
[*P2] UAF oversees the Olympic legacy venues used during the 2002 Winter Olympics, including the Utah Winter Sports Park (“Sports Park”) in Park City, Utah. The Sports Park includes a bobsled track, which is owned and operated by UAF. The bobsled track, which was built by the state of Utah for the 2002 Olympics, was completed in 1996, and ownership and operations were [**763] then transferred to the Salt Lake Organizing Committee (“SLOC”). In 1997, the track was opened to the public through the Public Ride Program (“PRP”). UAF took over the ownership and operation of the bobsled track following the 2002 Olympics and continues to offer the PRP. Besides the Park City track, only two other bobsled tracks are located in North America: one in Lake Placid, New York, and the other in Calgary, Alberta, Canada. The Lake Placid and Calgary tracks also operate a PRP.
[*P3] To be qualified and approved for Olympic use, a bobsled track has to be designed to specific international standards. One design criterion limits the amount of time that a bobsled athlete can be subjected to [***3] more than five Gs. The Federation Internationale de Bobsleigh et de Tobogganing (“FIBT”) is the international organization which ensures that a bobsled track’s design and construction meet the criteria. The FIBT conducts various measurements and tests to ensure that the standards are met. The Park City bobsled track met the FIBT standards and was used in the 2002 Winter Olympics. When UAF took over ownership and operation of the track following the Olympics, it did not do any testing independent of the testing conducted by the FIBT and the other entities involved with the construction, design, engineering, and certification of the track.
[*P4] The bobsleds used in the PRP are configured for a driver and three passengers. UAF employs professional, World Cup-level bobsled drivers for its PRP. The PRP sleds are modified from competition sleds. One modification is that the PRP sleds allow the driver to control the braking; in competition sleds, the fourth-seat rider controls the braking. Another modification is that the PRP sleds have handles for the passengers to hold during the bobsled ride.
[*P5] On February 27, 2003, Pearce went with his son to the Sports Park to ride the bobsled. Pearce was fifty-nine [***4] years old at the time. Before riding the bobsled, Pearce signed a release of liability form. 1 According to Pearce, he was not told what the document was, nor was he told that by signing it he was releasing the Sports Park from liability for injuries caused by its own negligence. Pearce understood that it was a release but did not fully understand the extent of the release. Pearce and the other patrons were given an orientation lasting approximately fifteen minutes. During the orientation, the patrons were told that they would experience four Gs during the ride. Pearce, a mechanical engineer by trade, understood what a G was but did not fully understand the effect that four Gs could have on his body.
1 The critical part of the release in this case–the sentence in paragraph 3 that releases UAF from its own negligence–states in full:
TO THE FULLEST EXTENT PERMITTED BY LAW, I HEREBY RELEASE, WAIVE, COVENANT NOT TO SUE, AND DISCHARGE THE UAF AND ALL OF ITS TRUSTEES, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, VOLUNTEERS, AGENTS AND REPRESENTATIVES (COLLECTIVELY, THE “RELEASEES”) FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, AND CAUSES OF ACTION WHATSOEVER ARISING OUT OF OR RELATED TO ANY [***5] LOSS, DAMAGE, OR INJURY, INCLUDING DEATH, THAT MAY BE SUSTAINED BY ME/MY MINOR CHILD OR LOSS OR DAMAGE TO ANY PROPERTY BELONGING TO ME/MY MINOR CHILD, WHETHER CAUSED BY THE NEGLIGENCE OF RELEASEES OR OTHERWISE, ARISING OUT OF OR RELATED TO MY/MY MINOR CHILD’S USE OF THE SPORTS FACILITIES OR PARTICIPATION IN THE SPORTS.
[*P6] The Sports Park managers knew that the g-forces were more pronounced for passengers in the fourth seat of the bobsled than for those in the other seats. Pearce, who was assigned to sit in the fourth seat, was instructed to sit back away from his son–who was seated in the third seat–and to lean forward and grab the handles installed in the modified sled. The Sports Park’s general manager testified that these instructions were given to fourth-seat riders to minimize their risk of injury, though he admitted that he did not know how such positioning minimized the risk. One of Pearce’s expert witnesses, Dr. Paul France, testified by affidavit that the Sports Park’s positioning actually increased the risk of spinal injury to fourth-seat riders. Dr. France opined that the risk of spinal injury could have been reduced by having fourth-seat riders sit more upright, push off [***6] the handles, and not flex the spine. [**764] During Pearce’s ride, the g-forces caused the L1 vertebrae of his spine to shatter, propelling a bone fragment toward his spinal column.
[*P7] Pearce brought suit against UAF in 2004. He originally claimed ordinary negligence but later amended his complaint to include gross negligence. During the course of the litigation, Pearce presented several allegations to support his negligence claims, including (1) the Sports Park did not obtain or review any of SLOC’s accident reports for the years of 1997 through 2002; (2) the Sports Park knew that the fourth seat exposed the rider to the greatest risk of injury but did not warn fourth-seat riders of the increased danger or undertake any measures to mitigate the risks of the fourth seat; (3) the Sports Park instructed fourth-seat riders to sit in a position that increased the risk of spinal injury; (4) the Sports Park failed to warn Pearce that three riders had suffered serious spinal injuries–including compression fractures–during the prior three months; (5) the Sports Park knew that riders had suffered back injuries but never attempted to find out how these back injuries were being caused [***7] or what could be done to minimize the risk of back injury; (6) the Sports Park never measured the g-forces on the fourth rider and never did any evaluation of the effect of the g-forces on public riders; (7) Sports Park management reviewed injury reports only at the end of the season and were therefore unaware of the reported spinal injuries contained in the injury reports; and (8) the Sports Park did not conduct any of its own testing to determine the inherent dangers of the ride and how to minimize those dangers.
[*P8] Following some discovery, UAF moved for summary judgment. UAF argued that the liability release protected it from any action for ordinary negligence and that, in view of the undisputed facts of the case, its conduct did not rise to the level of gross negligence. After briefing and oral argument on the motion, the district court issued its ruling and order.
[*P9] The district court first ruled in favor of UAF on the gross negligence claim, stating that “the court does not believe plaintiff has set forth sufficient evidence of gross negligence” and that “[t]here is no credible evidence of gross negligence as a matter of law.” The court held that the Sports Park’s conduct would, [***8] at most, amount to ordinary negligence.
[*P10] The court then ruled that Pearce had waived any ordinary negligence claim by signing the liability release. The court held that the release was valid, enforceable, and not against public policy. Thus, the court ultimately granted UAF’s motion for summary judgment on Pearce’s ordinary negligence claim because he had assumed the risks of the bobsled ride, including any negligent conduct of the Sports Park.
[*P11] Pearce now appeals the district court’s grant of summary judgment on both negligence claims. We have jurisdiction pursuant to Utah Code section 78-2-2(3)(j) (2002).
ISSUES AND STANDARD OF REVIEW
[*P12] There are two issues on appeal in this case: (1) whether the district court correctly held that the release of liability signed by Pearce barred his ordinary negligence claim against UAF, and (2) whether the district court correctly granted summary judgment to UAF on Pearce’s gross negligence claim.
[*P13] [HN1] “‘[S]ummary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.’” Swan Creek Vill. Homeowners Ass’n v. Warne, 2006 UT 22, P 16, 134 P.3d 1122 (quoting Norman v. Arnold, 2002 UT 81, P 15, 57 P.3d 997). [***9] A district court’s decision to grant summary judgment is reviewed for correctness, with no deference afforded to the district court. Crestwood Cove Apts. Bus. Trust v. Turner, 2007 UT 48, P 10, 164 P.3d 1247. “When we review a district court’s grant of summary judgment, ‘we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.’” Progressive Cas. Ins. Co. v. Ewart, 2007 UT 52, P 2, 167 P.3d 1011 [**765] (quoting Carrier v. Salt Lake County, 2004 UT 98, P 3, 104 P.3d 1208).
I. ORDINARY NEGLIGENCE
[*P14] In two recent cases, we reaffirmed our position with the majority of states that [HN2] people may contract away their rights to recover in tort for damages caused by the ordinary negligence of others. See Rothstein v. Snowbird Corp., 2007 UT 96, P 6, 175 P.3d 560; Berry v. Greater Park City Co., 2007 UT 87, P 15, 171 P.3d 442 (“[Utah's] public policy does not foreclose the opportunity of parties to bargain for the waiver of tort claims based on ordinary negligence.”). We also reaffirmed our position that preinjury releases are not unlimited in power and can be invalidated in certain circumstances. Three such limitations are relevant to this [***10] case: (1) releases that offend public policy are unenforceable, Rothstein, 2007 UT 96, P 6, 175 P.3d 560; (2) releases for activities that fit within the public interest exception are unenforceable, Berry, 2007 UT 87, P 16, 171 P.3d 442; and (3) releases that are unclear or ambiguous are unenforceable, Rothstein, 2007 UT 96, P 6, 175 P.3d 560. We now analyze each of these limitations and conclude that none is applicable here; therefore, the preinjury release is valid and enforceable.
A. The Preinjury Release Is Not Contrary to Public Policy
[*P15] We have long held that preinjury releases must be compatible with public policy. See Rothstein v. Snowbird Corp., 2007 UT 96, P 7, 175 P.3d 560 (citing Pugmire v. Or. Short Line R.R., 33 Utah 27, 92 P. 762 (Utah 1907)). In Hawkins v. Peart, we relied on public policy gleaned from Utah law in holding that a preinjury release signed by a parent is not enforceable against a minor child. 2001 UT 94, PP 10-13, 37 P.3d 1062. In Rothstein, we relied on the legislature’s statement of public policy in Utah’s Inherent Risks of Skiing Act to conclude that a ski resort cannot enforce a preinjury release against a skier whose injuries may have resulted from the negligence of the ski resort. 2007 UT 96, P 20, 175 P.3d 560. In [***11] the present case, however, Pearce has not presented, nor has this court found, a public policy that would render unenforceable a preinjury release between a public bobsled ride operator and an adult bobsled rider. Thus, we conclude that the preinjury release signed by Pearce is not contrary to public policy.
B. The Preinjury Release Is Not Invalid Under the Public Interest Exception
[*P16] [HN3] It is a “general principle of common law that those who are not engaged in public service may properly bargain against liability for harm caused by their ordinary negligence in performance of contractual duty.” Berry v. Greater Park City Co., 2007 UT 87, P 12, 171 P.3d 442 (internal quotation marks and citations omitted). Thus, a preinjury release that does not violate public policy is valid and enforceable unless it meets the public interest exception. Id. (stating that a preinjury release may be invalidated if it “attempts to limit liability for activities in which there is a strong public interest”).
[*P17] In Berry, we adopted the standard set out in Tunkl v. Regents of the University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46 (Cal. 1963), [HN4] as “the traits of an activity in which an exculpatory provision may be invalid” [***12] under the public interest exception. Berry, 2007 UT 87, P 15, 171 P.3d 442. The six Tunkl guidelines are:
“ [The transaction] 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. [**766]  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, subject to the risk [***13] of carelessness by the seller or his agents.”
Id. (quoting Hawkins v. Peart, 2001 UT 94, P 9 n.3, 37 P.3d 1062).
[*P18] In Berry, we applied the six Tunkl guidelines to a skiercross race and determined that skiercross racing did not meet the public interest exception. Id. PP 17-24. In the present case, we could again apply the guidelines in order to conclude that bobsledding does not meet the public interest exception, but we go one step further. [HN5] We now join other states in declaring, as a general rule, that recreational activities do not constitute a public interest and that, therefore, preinjury releases for recreational activities cannot be invalidated under the public interest exception.
[*P19] In California, where the Tunkl test was formulated, appellate courts have applied the Tunkl factors to a wide variety of recreational activities and have consistently concluded that such activities do not fit within the public interest exception. See, e.g., Randas v. YMCA of Metro. Los Angeles, 17 Cal. App. 4th 158, 21 Cal. Rptr. 2d 245, 247 (Ct. App. 1993) (swimming); Guido v. Koopman, 1 Cal. App. 4th 837, 2 Cal. Rptr. 2d 437, 439-40 (Ct. App. 1991) (horseback riding); Madison v. Superior Court, 203 Cal. App. 3d 589, 250 Cal. Rptr. 299, 305-06 (Ct. App. 1988) (scuba [***14] diving); Kurashige v. Indian Dunes, Inc., 200 Cal. App. 3d 606, 246 Cal. Rptr. 310, 313 (Ct. App. 1988) (dirt bike racing); Okura v. U.S. Cycling Fed’n, 231 Cal. Rptr. 429, 430-32, 186 Cal. App. 3d 1462 (Ct. App. 1986) (bicycle racing); Hulsey v. Elsinore Parachute Ctr., 168 Cal. App. 3d 333, 214 Cal. Rptr. 194, 199-200 (Ct. App. 1985) (parachute jumping). When faced with public interest challenges to preinjury releases for recreational activities, California appellate courts no longer need to go through a Tunkl analysis; instead, the courts rely on the general rule–established through years of applying the Tunkl test–that “[e]xculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy.” Benedek v. PLC Santa Monica, LLC, 104 Cal. App. 4th 1351, 129 Cal. Rptr. 2d 197, 202 (Ct. App. 2002); see also Westlye v. Look Sports, Inc., 17 Cal. App. 4th 1715, 22 Cal. Rptr. 2d 781, 791 (Ct. App. 1993) (“[R]ecreational sports do not constitute a public interest under Tunkl.“).
[*P20] California courts are not alone in refusing to invalidate preinjury releases in recreational activities under the public interest exception. Courts across the country that have applied the public interest exception to preinjury releases, whether under [***15] the Tunkl factors or under some other test, have consistently held that recreational activities do not implicate public interest concerns and, therefore, that preinjury releases for recreational activities are not invalid under the public interest exception. See, e.g., Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004) (distinguishing “businesses engaged in recreational activities, which are not practically necessary and with regard to which the provider owes no special duty to the public” from businesses that implicate the public interest under the Tunkl factors); Seigneur v. Nat’l Fitness Inst., Inc., 132 Md. App. 271, 752 A.2d 631, 641 (Md. Ct. Spec. App. 2000) (“[C]ourts from other jurisdictions almost universally have held that contracts relating to recreational activities do not fall within any of the categories that implicate public interest concerns.”); Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 925-26 (Minn. 1982) (“Courts from other jurisdictions generally have held contracts relating to recreational activities do not fall within any of the categories where the public interest is involved.”); Henderson v. Quest Expeditions, Inc., 174 S.W.3d 730, 733 (Tenn. Ct. App. 2005) [***16] (“[M]any jurisdictions have recognized that . . . recreational sporting activities are not activities of an essential nature which would render exculpatory clauses contrary to the public interest.”); Milligan v. Big Valley Corp., 754 P.2d 1063, 1066 (Wyo. 1988) (“[C]ontracts relating to recreational activities do not fall within any of the categories [**767] . . . where the public interest is involved.”).
[*P21] We now join the majority of courts by adopting the rule that preinjury releases for recreational activities are not invalid under the public interest exception. Thus, we conclude that the preinjury release in this case is not invalid under the public interest exception because bobsledding is a recreational activity.
C. The Preinjury Release Is Not Ambiguous
[*P22] [HN6] Preinjury releases, to be enforceable, must be “communicated in a clear and unequivocal manner.” Berry v. Greater Park City Co., 2007 UT 87, P 15 n.2, 171 P.3d 442; see also Hawkins v. Peart, 2001 UT 94, P 5, 37 P.3d 1062 (stating that preinjury releases “require a clear and unequivocal expression of the intent to indemnify or release”).
To be effective, a release need not achieve perfection; only on Draftsman’s Olympus is it feasible to [***17] combine the elegance of a trust indenture with the brevity of a stop sign. . . . It suffices that a release be clear, unambiguous, and explicit, and that it express an agreement not to hold the released party liable for negligence.
Nat’l & Int’l Bhd. of St. Racers, Inc. v. Superior Court, 264 Cal. Rptr. 44, 47, 215 Cal. App. 3d 934 (Ct. App. 1989).
[*P23] Pearce argues that the liability waiver is invalid as ambiguous because the 111-word sentence in paragraph 3 does not clearly and unequivocally inform riders that they are releasing UAF of any injury caused by UAF’s ordinary negligence. We disagree. Although the sentence at issue is long and contains some “legalese,” it is not unclear or equivocal. See Freund v. Utah Power & Light Co., 793 P.2d 362, 371 (Utah 1990) (holding that a 97-word sentence in a commercial indemnification agreement clearly and unequivocally showed that the licensee agreed to indemnify the licensor from liability that could arise from the licensor’s negligence, even though the word “negligence” was not included in the sentence). The sentence conceivably could have been written more concisely or plainly, but that does not render it unclear or ambiguous. The sentence, in clear and unequivocal [***18] language, releases UAF from any claim “whether caused by the negligence of [UAF] or otherwise.” Although not perfect, the release is sufficiently clear. Thus, we affirm the district court’s conclusion that the preinjury release is valid and enforceable because it is not unclear, equivocal, or ambiguous.
II. GROSS NEGLIGENCE
[*P24] [HN7] Gross negligence is “the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.” Berry v. Greater Park City Co., 2007 UT 87, P 26, 171 P.3d 442 (internal quotation marks and citations omitted). “Gross negligence requires proof of conduct substantially more distant from the appropriate standard of care than does ordinary negligence.” Id. Summary judgment in negligence cases, including gross negligence cases, is “inappropriate unless the applicable standard of care is fixed by law, and reasonable minds could reach but one conclusion as to the defendant’s negligence under the circumstances.” Id. P 27 (internal quotation marks and citations omitted). When reviewing grants of summary judgment in negligence cases, “we have consistently followed the principle that summary judgment [***19] is generally inappropriate to resolve negligence claims and should be employed only in the most clear-cut case.” Id. (internal quotation marks and citations omitted).
[*P25] In Berry, a competitive skier brought a gross negligence claim against a ski resort for negligently designing and constructing a skiercross course. Id. PP 6-7. The district court granted the ski resort’s motion for summary judgment on the gross negligence claim because the plaintiff had “failed to present evidence sufficient to place in dispute the issue of whether [the ski resort] had designed and built the skiercross course with . . . gross negligence.” Id. P 7. We concluded that the district court improperly granted summary judgment because the standard of care for designing and constructing skiercross courses was not “fixed by law,” [**768] and [HN8] “where a standard of care is not ‘fixed by law,’ the determination of the appropriate standard is a factual issue to be resolved by the finder of fact.” Id. P 30 (quoting Wycalis v. Guardian Title of Utah, 780 P.2d 821, 825 (Utah Ct. App. 1989)). Without the applicable standard of care, it was impossible for the district court to determine the degree to which the ski resort’s conduct [***20] deviated from the standard of care–”the core test in any claim of gross negligence.” Id. Thus, we held that a district court cannot properly grant a motion for summary judgment regarding a gross negligence claim unless there is “an identified, applicable standard of care to ground the analysis.” Id.
[*P26] The present case is very similar to Berry. Pearce brought a gross negligence claim against UAF, and the district court granted summary judgment for UAF because Pearce had not “set forth sufficient evidence of gross negligence.” However, there is no standard of care fixed by law regarding the operation of public bobsled rides upon which the district court could have based its analysis of gross negligence. 2 Indeed, the district court itself noted that the expert witnesses in the case “[did] not opine on the standard of care in such an industry.” Without an identified, applicable standard of care, it was error for the district court to rule on summary judgment that, as a matter of law, Pearce could not show gross negligence. We therefore hold that the district court improperly granted summary judgment to UAF on Pearce’s gross negligence claim, and we therefore reverse and remand to the district [***21] court.
2 In his brief, Pearce stated that a standard of care has been established by Utah law: “the care required of amusement ride operators is the care that reasonably prudent persons would exercise under the circumstances . . . commensurate with the dangers and risks created by the ride.” Lamb v. B & B Amusements Corp., 869 P.2d 926, 931 (Utah 1994). Besides the question of whether the bobsled ride is an “amusement ride,” the problem with this standard is that it simply states the normal “reasonably prudent person” standard that applies in any negligence case; it does not state more specific standards for designing, constructing, and testing a bobsled run for the public or for operating a public bobsled ride. See Restatement (Second) of Torts § 285, cmt. d (stating that the reasonable person standard “is, without more, incapable of application to the facts of a particular case”). In order to determine what a reasonable bobsled ride operator would do, the finder of fact would likely need to hear testimony from expert witnesses before it could determine the operator’s deviation from the standard. See Berry, 2007 UT 87, P 30, 171 P.3d 442.
[*P27] We hold that Pearce’s ordinary negligence claim [***22] is barred by the preinjury release that he signed because the release is not against public policy, it does not meet the public interest exception, and it is clear, unequivocal, and unambiguous. Thus, we affirm the district court’s grant of summary judgment to UAF on Pearce’s ordinary negligence claim.
[*P28] We reach the opposite conclusion, however, with respect to Pearce’s gross negligence claim. We hold that the district court erred in granting summary judgment to UAF on Pearce’s gross negligence claim without identifying the applicable standard of care. We therefore reverse and remand to the district court for proceedings consistent with this opinion.
[*P29] Chief Justice Durham, Associate Chief Justice Wilkins, Justice Durrant, and Justice Nehring concur in Justice Parrish’s opinion.
The decision states that under Utah law gross negligence must always be decided by the trier of fact.
Pearce v. Utah Athletic Foundation, 2008 UT 13; 179 P.3d 760; 597 Utah Adv. Rep. 13; 2008 Utah LEXIS 16
The plaintiff in this case was injured while riding as a passenger on a four man bobsled at the Utah Winter Sports Park (UWSP). The bobsled ride caused the plaintiff’s vertebrae “to shatter, propelling a bone fragment toward his spinal column” from the g-force. The plaintiff sued for negligence and gross negligence. The UWSP raised the defense of release. The trial court granted the defendant’s motion for summary judgment for both simple or ordinary negligence and gross negligence.
The plaintiff in making his allegations listed ways the UWSP failed to take care of its riders:
1. The Sports Park did not obtain or review any of SLOC’s (Salt Lake Organizing Committee the parent of the UWSP) accident reports for the years of 1997 through 2002;
2. The Sports Park knew that the fourth seat exposed the rider to the greatest risk of injury but did not warn fourth-seat riders of the increased danger or undertake any measures to mitigate the risks of the fourth seat;
3. The Sports Park instructed fourth-seat riders to sit in a position that increased the risk of spinal injury;
4. The Sports Park failed to warn Pearce that three riders had suffered serious spinal injuries–including compression fractures–during the prior three months;
5. The Sports Park knew that riders had suffered back injuries but never attempted to find out how these back injuries were being caused or what could be done to minimize the risk of back injury;
6. The Sports Park never measured the g-forces on the fourth rider and never did any evaluation of the effect of the g-forces on public riders;
7. Sports Park management reviewed injury reports only at the end of the season and were therefore unaware of the reported spinal injuries contained in the injury reports; and
8. The Sports Park did not conduct any of its own testing to determine the inherent dangers of the ride and how to minimize those dangers.
Although individually most of the eight allegations raise concerns individually the allegations do not rise to the level of negligence. However, together they show a pattern of not caring about its patrons or how they suffered their injuries, which might prove gross negligence.
The court set forth the three ways under Utah’s law that a release would not be upheld by the courts.
(1) releases that offend public policy are unenforceable;
(2) releases for activities that fit within the public interest exception are unenforceable;
(3) releases that are unclear or ambiguous are unenforceable,
Under Utah’s law, “offend public policy” means there is a law or policy of the state that would prevent the use of a release. Here the court ruled that the release for a bobsled run were not against public policy.
Public service means providing a service or a necessity to the public such that without the service or necessity a person would not be able to live. The easiest way to understand this is to understand the types of services or necessities in the category. Usually utilities such as gas, electric or phone service are defined as public services. They are items that are needed in this day and age to live.
The court, after the analysis of the above public policy and public service arguments, made the pronouncement that as a general rule “recreational activity do not constitute a public interest and that, therefore, preinjury releases for recreational activities cannot be invalidated under the public interest exception.”
That is a great legal statement that can be relied upon by all recreational programs and businesses in the state of Utah for the future.
Ambiguity under Utah’s law requires that the release be “communicated in a clear and unequivocal manner.” A release is not ambiguous if it is a “clear and unequivocal expression of the intent to indemnify or release.”
Utah’s courts have found areas where releases are not enforceable. Releases cannot be used to stop a claim by a minor. Releases can also not be used to stop claims by a skier from claims based on the negligence of the ski area.
In Hawkins v. Peart, we relied on public policy gleaned from Utah law in holding that a preinjury release signed by a parent is not enforceable against a minor child. In Rothstein v. Snowbird Corp, we relied on the legislature’s statement of public policy in Utah’s Inherent Risks of Skiing Act to conclude that a ski resort cannot enforce a preinjury release against a skier whose injuries may have resulted from the negligence of the ski resort.
The Rothstein case is interesting because the public policy exception was carved out of the language of the statute that was created to provide protection against lawsuit in the ski industry.
The court in this decision, then defined gross negligence under Utah law.
Gross negligence is “the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.” “Gross negligence requires proof of conduct substantially more distant from the appropriate standard of care than does ordinary negligence.”
Unless the standard of care is fixed by law, based on this definition, a claim of gross negligence cannot be dismissed by a motion for summary judgment. Meaning, claims of gross negligence must be decided by the trier of fact. The trier of fact is normally the jury, and if there is no jury, the judge.
Gross negligence is rarely dismissed by a motion for summary judgment. Unless the facts in front of the judge are void of any issue lending any argument to gross negligence, most courts are going to allow a gross negligence claim to continue.
In Utah, the chances of having a gross negligence claim dismissed are even higher, unless there is a law, all ready in force or a decision by a court that specifically defines gross negligence and the facts of the case do not rise to the legal level.
Here the eight allegations raised against the UWSP could possibly lead to a claim of gross negligence and the totality of the eight may support a claim for gross negligence.
If you have injuries, you need to determine, if possible what caused those injuries. If you don’t know what causes the injuries, or you cannot determine what causes injuries you need to inform your guests of those specific issues. The best way to do that would be in a release. In the release list, the risks, you cannot control as one of the specific issues or risks the signor of the release will assume.
Another red flag set forth in the facts of this case is telling people to do something as a safety measure and not having any idea why you are doing it. Worse, the plaintiff’s expert said that the safety measure actually increased the chance of injury in this case.
Except for the exceptions under Utah’s law already carved out by the courts, a release for recreational activities can be used to stop a claim for ordinary or simple negligence. Overall a good decision for Utah and not outside of the general framework of release law in the United States.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
© 2010 James H. Moss
#recreation-law.com, #outdoor law, #recreation law, #outdoor recreation law, #adventure travel law, #law, #travel law, #Jim Moss, #James H. Moss, #attorney at law, #tourism, #adventure tourism, #rec-law, #rec-law blog, #recreation law, #recreation law blog, #risk management, #Human Powered, #human powered recreation,# cycling law, #bicycling law, #fitness law, #recreation-law.com, #backpacking, #hiking, #Mountaineering, #ice climbing, #rock climbing, #ropes course, #challenge course, #summer camp, #camps, #youth camps, #skiing, #ski areas, #negligence, #Utah, #bobsled, #bobsledding, #Utah Winter Sports Park in Park City, # Utah Athletic Foundation, # Salt Lake Organizing Committee, #gross negligence, #negligence, #G-force, #public policy, #public service, #ambiguous, Technorati Tags: Utah,decision,negligence,accident,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,Winter,Sports,Park,Athletic,Foundation,Salt,Lake,Committee,policy,blog
WordPress Tags: Utah,decision,negligence,accident,recreation,adventure,Moss,James,attorney,tourism,management,Human,youth,areas,Winter,Sports,Park,Athletic,Foundation,Salt,Lake,Committee,policy,blog
Summary Judgment granted for bicycle manufacturer and retailer on a breach of warranty and product liability claim.Posted: September 20, 2010
Burns, v. Cannondale Bicycle Company, 876 P.2d 415; 239 Utah Adv. Rep. 57; 1994 Utah App. LEXIS 84; CCH Prod. Liab. Rep. P13,960
This is an odd case and one that probably was filed simply to recover money. Everyone once in a while, that happens.
In this case, the plaintiff purchased a Cannondale bicycle from The Bicycle Center. A month later while riding the bike, he went over the handle bar. His injuries were never specified in the complaint. Three years later, right before the statute of limitations ran, he filed suit against Cannondale and the retailer.
The statute of limitations is the time frame that a lawsuit must be filed. Legislatures have created laws for different types of lawsuits setting forth how long a plaintiff has to file a suit. Another way of looking at this, is defendants know that all lawsuits will be filed within a certain period of time, or they are barred.
Statutes of limitation vary by state. So a simple negligence claim may have a two year statute of limitation in one state and three years in a neighboring state.
The plaintiff filed suit for “breach of the implied warranty of merchantability, breach of certain express warranties, and products liability.” He also filed a claim for “negligent assembly” against the retailer.
The plaintiff claimed that something popped off the brake which clamped down the brake on the tire causing him to fall. However, the plaintiff’s expert and the defendant’s expert both testified that if the brake has failed as stated by the plaintiff the opposite would have happened. The brake would have released from the wheel not braking at all.
The trial court granted the defendant’s motion for summary judgment dismissing the lawsuit. The plaintiff then appealed the decision leading to this decision.
The plaintiff claimed at the appellate level that the doctrine of spoliation of evidence applied to this case. This doctrine says that if one party to a lawsuit destroys evidence than the evidence can still be introduced with the court will infer the evidence in the light most suitable to the other party.
However, that legal doctrine did not apply in this case because if any evidence was destroyed it was destroyed prior to the suit. The doctrine only applies once a party is on notice of a claim. You cannot destroy evidence if you don’t know the object being destroyed is evidence.
Generally there is no duty on the part of someone making repairs or a retailer to retain defective parts. A major exception to that rule is electronic communications, which is too broad to cover in this discussion.
The court also agreed that there was no product liability claim because there was no causation. Legal causation is proof that the defect lead to the injury. In this case, the plaintiff could not identify a specific defect; therefore, there was no causation or relationship to his injury. The plaintiff must identify the specific product liability defect to prove a case and cannot just claim the product failed.
Under Utah’s laws on product liability to win a product liability claim the plaintiff must prove.
“(1) that the product was unreasonably dangerous due to a defect or defective condition, (2) that the defect existed at the time the product was sold, and (3) that the defective condition was a cause of the plaintiff’s injuries.”
To win the plaintiff must prove more than the product just failed. The failure must have existed at the time the product was sold and the failure must have caused the plaintiff’s injuries.
Everyone once in a while someone files a lawsuit for money. In this case, the plaintiff testified that he thought about the lawsuit after seeing a program on TV about Melvin Belli, a famous California attorney.
Just filing a lawsuit and having an injury is not enough to win a lawsuit or recover damages. Here the plaintiff and the manufacture stuck together to fight this claim. The parties proved that the plaintiff’s claims were bogus because the plaintiff failed.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw,
# Technorati Tags: Summary,Judgment,bicycle,manufacturer,retailer,product,recreation,adventure,Cannondale,Company,Utah,Center,negligence,doctrine,spoliation
Windows Live Tags: Summary,Judgment,bicycle,manufacturer,retailer,product,recreation,adventure,Cannondale,Company,Utah,Center,negligence,doctrine,spoliation
WordPress Tags: Summary,Judgment,bicycle,manufacturer,retailer,product,recreation,adventure,Cannondale,Company,Utah,Center,negligence,doctrine,spoliation
Blogger Labels: Summary,Judgment,bicycle,manufacturer,retailer,product,recreation,adventure,Cannondale,Company,Utah,Center,negligence,doctrine,spoliation
Last year the Utah Supreme Court gave access to the Utah waterways in a decision Conatser v. Johnson. Although the water had been owned by the citizens of Utah, you could not access the water. After the decision, boaters and fisherman could walk, swim and float the rivers.
The legislature is considering a bill HB 187 that would take away that access on all but 14 Utah Rivers. In fact it would further restrict access to Utah Rivers. For additional information on the bill see the Utah Water Guardians. If you live in Utah you can sign an online petition opposing the bill. If you don’t live in Utah write a letter to the Utah Governor expressing your concern.
You can also call the Governor at : 801 538 1000 .
Outdoor recreation is going to disappear on Utah waterways if we don’t act.
We reported in The State of Utah is now responsible for what bears do that the state of Utah was being sued along with the Federal
Government (USFS) over the death of a child killed by a bear.
The State of Utah has filed their answer to the lawsuit saying that the Forest Service is responsible for the bear. See State denies responsibility for fatal bear attack on boy. The state is also claiming the Utah Governmental Immunity act protects it as well as the family of the deceased brought food into the campsite.
Lindsey Enloe had met Stephen Stinson and had asked her out on a date. Stinson took Enloe climbing saying he had been climbing for 12 years. Allegedly Stinson had not been truthful about his climbing experience or the fact that he was married. The anchor Stinson set failed and Enloe fell, out of love, and into a hospital. Enloe then sued Stinson for the injuries she incurred in the fall.
The Intermountain Commercial Salt Lake Times the Record listed the case as settled for $65,000 sometime in August of 2002. That was either an expensive date or an expensive lie. Either way, I suspect the costs for Mr. Stinson did not subside once his wife found out that he had been dating and now owed her $65,000. Even in Utah professionals have to be cheaper!