The Ferae Naturae doctrine prevents a landowner from being liable for injuries to guests from wildlife.

In Texas, the landowner was not liable for the damages caused by a bite from a Brown Recluse Spider when it bit a tenant on the property.

Hillis v. McCall, 2020 Tex. LEXIS 187, 63 Tex. Sup. J. 577

State: Texas, Supreme Court of Texas

Plaintiff: Henry McCall

Defendant: Homer Hillis

Plaintiff Claims: premises liability

Defendant Defenses: ferae naturae

Holding: for the Defendant

Year: 2020

Summary

Ferae Naturae means naturally wild. Since the guest knew Brown Recluse Spiders were around and had seen them, he could not hold the landowner liable for the damages suffered when he was bitten by one. The Texas Supreme Court held that since the plaintiff knew spiders were around, and they were wild animals; the landowner/defendant was not liable.

Facts

Homer Hillis owns a bed and breakfast (the B&B) and a neighboring cabin in Fredericksburg, Texas. He used the B&B as a second home until 2012, when he began renting it out, mainly on weekends. Hillis hired a housekeeper to prepare and clean the B&B before guests arrived. That process included utilizing “bug bombs” in the event the housekeeper noticed any pest problems. Thus, as Hillis described it, pest control at the B&B was conducted on an “[a]s needed” basis.

In early 2014, Hillis leased the neighboring cabin on the property to Henry McCall. The cabin had no washer or dryer and had only a small refrigerator, so Hillis permitted McCall to use the laundry facilities and larger refrigerator in the B&B. McCall also offered to “open up” the B&B for guests and others needing access, such as electricians and other maintenance workers. According to McCall, Hillis typically called him several days before guests arrived and asked him to perform various tasks.

On December 12, 2014, McCall accessed the B&B at Hillis’s request to check the dishwasher and investigate whether the sink was leaking. While checking under the sink for a leak, McCall was bitten by a brown recluse spider, which is a venomous spider found in several states, including Texas.

Before he was bitten, McCall had observed spiders in both the cabin and the B&B on several occasions and had notified Hillis about the general presence of spiders in the B&B. According to Hillis, when McCall reported issues with insects or spiders, Hillis would pass along the information to the housekeeper who prepared the B&B for guests. Hillis also averred that customer reviews of the B&B had never complained of insects. Neither Hillis nor McCall had any personal knowledge about the presence of brown recluse spiders on Hillis’s property specifically or in the surrounding area. However, Hillis explained that he had read reports on the internet that brown recluse spiders “are habitats [sic] of Texas for a long time, and I assumed they were around my property.” Hillis had heard of people being bitten by brown recluses “elsewhere,” but not on his property.

McCall sued Hillis for negligence under a premises-liability theory, alleging that the presence of brown recluse spiders on Hillis’s property constituted an unreasonably dangerous condition, that Hillis knew or should have known of the condition, that Hillis owed McCall a duty to adequately warn him of the condition or make the property safe, that Hillis breached that duty, and that McCall suffered damages as a result. Hillis filed a motion for summary judgment, arguing that, under the longstanding doctrine of ferae naturae, he owed no duty to McCall with respect to indigenous wild animals that Hillis had neither introduced to nor harbored on the property. The trial court granted the motion, and McCall appealed.

Analysis: making sense of the law based on these facts.

Premise’s liability is based on the theory that a landowner owes a duty to someone coming upon their land. The duty owed is dependent on the status of the person coming on the land. That status is usually based on the relationship between the landowner and the guest.

A landowner owes the most duty to an invitee.

When the injured person qualifies as an invitee, as McCall did, then as a general rule the landowner owes a “duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.”[A] (landowner’s duty to an invitee is to “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner . . . knows about or in the exercise of ordinary care should know about” (citation omitted)). In line with that rule, the duty does not extend to warning the invitee of hazards that are open and obvious.

There are exceptions to this rule. One is the open and obvious rule. A landowner does not owe the invitee a duty to warn or protect an invitee from an open and obvious danger on the land. If the risk is concealed, then the landowner must warn the invitee or protect the invitee from the risk.

The doctrine of ferae naturae is another duty that the landowner need not warn about. The doctrine of ferae naturae applies to wild animals and in a broader definition in some states to wind or water.

The reasoning underlying the doctrine is that wild animals “exist throughout nature” and are “generally not predictable or controllable.” In turn, the mere fact that an indigenous wild animal has crossed a landowner’s property line does not make the landowner better able to protect an invitee than the invitee is to protect himself. (“Under ordinary circumstances, Texas landowners do not have a duty to warn their guests about the presence and behavior patterns of every species of indigenous wild animals and plants which pose a potential threat to a person’s safety . . . .”).

There is an exception to the ferae naturae rule, if the wild animals are found in artificial structures or places where they are not normally found, then the landowner does have a duty to warn. The ferae naturae does not apply to zoos or to a keeper of wild animals.

Thus, when a wild animal enters such a structure, and the owner knows or has reason to know about the animal’s presence and the unreasonable risk of harm presented thereby but the invitee does not, it is reasonable to expect the owner to take steps to alleviate the danger or at least warn the invitee of it. (holding that a grocery store owner was not liable to a patron who was bitten by a rattlesnake inside the store where nothing in the record suggested that the owner “knew, or had reason to know from past experience, that there was a likelihood that snakes presented a danger to patrons”).

Because the landowner did not know the Brown Recluse Spiders were inside the building, he did not owe a duty to the plaintiff to warn him of the spiders. Further because the plaintiff did have actual knowledge that spiders were on the property he knew of the possible risks. The court stated there was no duty to warn a guest about something they already know.

The court held the landowner was not liable for the acts of the wild animal.

So Now What?

Since in most states, wild animals are owned by the state and since no one, contrary to whatever you see on TV or believed from Disney in the past, can control a wild animal, landowners are not liable for their actions. Consequently, holding a landowner liable for something he or she does not own and cannot control is difficult and does not create a legal duty.

The facts in this case are convoluted, but what allowed the landowner to succeed was the fact the plaintiff, who was living on the property for free, knew that dangerous spiders were around on the property. Since the landowner did not know there were Brown Recluse Spiders on the property the landowner could not be liable.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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Massachusetts’s Supreme Court holds that wrongful-death claims are derivative.

A derivative claim can be stopped by any defense of the main claim the derivative claim is dependent on. In this Scuba fatality, a release stopped claims by the heirs.

Doherty v. Diving Unlimited International, Inc., 484 Mass. 193, 2020 Mass. LEXIS 134, 140 N.E.3d 394, 2020 WL 949922

State: Massachusetts, Supreme Judicial Court of Massachusetts

Plaintiff: Margaret C. Doherty, personal representative

Defendant: Diving Unlimited International, Inc.

Plaintiff Claims: Wrongful Death

Defendant Defenses: Release

Holding: For the Defendant

Year: 2019

Summary

Under Massachusetts law, a wrongful-death claim is a derivative claim. That means that the defenses available to stop a lawsuit by the deceased, also work against the survivors of the decedent. In this case, the deceased signed a release prior to his death which stopped the wrongful-death claim of his survivors.

Facts

The decedent, who was a certified open-water scuba diver, drowned while participating in a promotional diving equipment event that was sponsored by DUI and held in Gloucester. At this event, where local divers tested DUI’s dry suit, Golbranson was the leader of the dive, overseeing some of the participants.

Prior to participating in the event, the decedent signed two documents. The first was a release from liability which had several subsections that were set forth in all capital letters and underlined, including “effect of agreement,” “assumption of risk,” “full release,” “covenant not to sue,” “indemnity agreement,” and “arbitration.” In capital letters under the subsection titled “effect of agreement,” it said, “Diver gives up valuable rights, including the right to sue for injuries or death.” It also told the decedent to read the agreement carefully and not to sign it “unless or until you understand.” The subsection titled “full release” stated that the decedent “fully release[d] DUI from any liability whatsoever resulting from diving or associated activities,” and the subsection titled “covenant not to sue” stated that the decedent agreed “not to sue DUI for personal injury arising from scuba diving or its associated activities,” and that the decedent’s “heirs or executors may not sue DUI for death arising from scuba diving or its associated activities.”

The decedent also signed an equipment rental agreement which stated, “This agreement is a release of the [decedent’s] rights to sue for injuries or death resulting from the rental and/or use of this equipment. The [decedent] expressly assumes all risks of skin and/or scuba diving related in any way to the rental and/or use of this equipment.”

Golbranson led a group comprised of the decedent and two other divers. During their dive, one of the divers experienced a depleted air supply. Golbranson signaled for the group to surface and to swim back to shore on the surface. Only the decedent resisted, emphasizing his desire to keep diving, thus separating himself from the group that was returning to shore. Shortly thereafter, the decedent surfaced and called for help. The decedent died at the hospital from “scuba drowning after unequal weight belt distribution.”

Analysis: making sense of the law based on these facts.

A wrongful-death claim is a statutory claim, created by state legislatures to allow surviving heirs to sue over the death of a loved one who was providing value or benefits to the survivor. In most cases, since there is no duty directed to a survivor, the surviving heirs have limited rights to recover for the loss of a breadwinner in a family, until the wrongful-death statutes were enacted.

In this case, the decedent signed a release and a rental agreement to test the dive equipment. The rental agreement included additional release language.

The Supreme Court of Massachusetts determined the sole issue upon review was whether the release signed by the decedent barred the claims of the plaintiff, the heir who had filed the wrongful-death claim.

The decision was simple for the court. A wrongful-death claim is a derivative claim of the wrongful-death statute. That means that a derivative claim does not stand on its own, it only exists because of the main claim. As such, if the main claim, wrongful death is void because of the release, then that claim also stops the derivative claims of the survivors.

Given that the plaintiff does not contest the judge’s determinations that the release from liability and the equipment rental agreement are valid and that those waivers covered Golbranson as an agent of PUI, the only issue before the court is whether the statutory beneficiaries in the action for wrongful death have a right to recover damages that is independent of the decedent’s own cause of action. See G. L. c. 229, §§ 1, 2. In GGNSC, 484 Mass. at, we have resolved that issue: our wrongful death statute creates a derivative right of recovery for the statutory beneficiaries listed in G. L. c. 229, § 1. Therefore, we hold that here, the valid waivers signed by the decedent preclude the plaintiff, as his “executor or personal representative,” from bringing a lawsuit under G. L. c. 229, § 2, for the benefit of the statutory beneficiaries.

A wrongful-death claim is a derivative claim under Massachusetts’s law. Therefore, if the release stops the claims of the decedent, it also stops the claims of the heirs.

So Now What?

Although most states have determined that wrongful-death claims are derivative of the main action of the decedent, you want to make sure your release protects you from wrongful death and other claims that are derivative. Language in your release needs to say that the person signing the release as well as his family and heirs cannot sue.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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Outline for Starting a New Outdoor Recreation Business

Updated June 4, 2020

Not every business will follow this outline; however, it provides some basic ideas on when and why you need legal advice to protect your business.

Check back as this page will be updated with new ideas and articles.

Year 1

  1. Create Limited Liability Company for your business: Because the cost of starting an LLC in most states is minimal, start one immediately and start using the name to provide notice that you are doing business as an LLC. See Starting Your Outdoor Recreation Business: Entities and Taxation

For more information about entity options see: Starting Your Outdoor Recreation Business: Entities and Taxation

  1. Unless you want your business to be a non-profit business, then set up a non-profit corporation.
  2. Even if you expect to go public at a later time, an LLC provides the most protection immediately.
    1. Start the LLC in your own state. If you need to later, you can move the LLC or start another LLC or corporation in a state that might have better laws than your state, such as Delaware.
      1. Compare the cost of starting an LLC in your home state $50-$100 to Delaware, $750.00
  1. Apply for the necessary permits to operate on the land you want to be using.
    1. Inquire with the land managers if there are permits available.
    2. Find out how to apply for a permit and the requirements
    3. Determine if you can get a permit.
    4. Make friends with the person in charge of permits.
  2. Apply for Insurance for your business

    I can provide you with a list of insurance carriers who specialize in Outdoor Recreation Insurance. Email me at mailto:jhmoss@gmail.com?subject=I’m interested in your list of insurance brokers Include your name and contact information and a little about your business.

    1. Basic business liability policy
      1. This provides protections you might need such as someone falling at your office, advertising liability, etc.
    2. Specialty risk policy for your outdoor activity
      1. This provides the protection for the specific activity you want to do.
        1. Make sure it provides coverage for SAR costs.
    3. Commercial Automobile policy
      1. If you are going to transport people, this policy will probably be your most expensive policy so purchase it only when you need it.
  3. Write a Risk-Management Plan
    1. Probably one page long. Any longer and you are writing a plan for attorneys to sue you.
    2. You cannot write a plan that covers every risk you, your employees and your guests are going to encounter. So don’t try.
    3. What you can do is take an ICS course, online, and learn how write a plan that deals with what to do, what you have and who to contact rather than trying to decide how to put out a fire.

    For more on this subject see: Creating Your Risk-Management Plan

  4. Identify classes and education needed by you and your employees for the programs you will be running/teaching/instructing. (Certification is not the key; education is. See Basics of the Article are Good – But it confuses certification, accreditation and most importantly standards.)
    1. First Aid Classes
      1. Dependent upon the distance from Emergency Medical Services
      2. Dependent upon the first aid supplies you can carry.
      3. Dependent upon the injuries you guests & employees may incur.
      1. This is a critical skill set, knowledge and practice to operate on my lands in the US.
    2. Technical Classes (Examples)
      1. Swift Water Rescue
      2. Top Rope
      3. Mountaineering Guide
    3. Classes required by a State of Federal Licensing Agency. (Examples)
      1. Child Care
      2. Health Department Food Preparation
    4. Educational classes(Examples)
      1. Flora, Fauna & Ecosystem training for the area you will be operating.
  5. Create your marketing campaign and social media presence
  6. Contact me to write a release for you.

    Send an email to jhmoss@gmail.com and request the form to fill out to complete a release for your business. Please provide contact information and information about your business.

    1. The release will be based on:
      1. What you intend to do.
      2. On whose land you intend to do it.
      3. The guests you want work with.
      4. The state where you intend to work.

    For information on how to use your release see: Releases: Using it Properly

  7. Apply for any state license you need to operate.
    1. Travel Agent License
    2. Transportation license
    3. Outfitter and/or guides licenses
  8. Identify Trade Associations & join.

For more on this see: Why you should always be a member of the trade association that represents the activity you provide?

  1. Hire a CPA

Year 2-3

  1. Determine if you need additional Limited Liability companies.
    1. Separate LLC’s for each state you may be operating in.
    2. Separate LLC for the assets you have.
      1. Each piece of Real Estate should be located in its own LLC.
      2. All vehicles should be in a transportation LLC.
    3. Separate LLC’s for each Federal, State or Local Permit
      1. Alternatively, you can keep the permits in your name.

    For more information on this subject see: Why would you create more than one Limited Liability Company for your business?

    Call me to discuss these options and which one is best for you:
    Schedule an Appointment

  2. Write the necessary contracts to operate the different LLC’s
    1. Owner ship of the LLC’s for the different states you are operating in.
    2. Lease Agreements for real estate you are operating on.
    3. Contracts for hiring transportation services for your guests and employees
  3. Review your insurance policies every two years to make sure your coverage is adequate, and you are paying the proper premium.
  4. Create a risk management training program with local Fire, EMS, Law Enforcement and SAR.
  5. Start running background checks on new employees
    1. Do this every year if you are dealing with minors?
  6. Identify State and Local marketing associations and determine the value to your business.
  7. Further Develop Your Marketing Plan
    1. Adjust your marketing plan for the customers you are receiving.
    2. Develop social media presence
    3. Develop a referral program
    4. Develop a local community marketing program
  8. Develop vehicle maintenance programs
  9. Develop equipment maintenance and replacement programs
  10. Hire bookkeeper or payroll firm that works with your CPA.

Year 3-5

  1. Check to see if your release needs updated.
  2. Run background checks on all employees each year.
  3. Develop in-house training programs
    1. First Aid as needed by:
      1. Your Clientele
      2. Your area of operations
      3. Your permit or licenses
  4. Develop a managerial training program
  5. Set up additional LLC’s for holding assets and separating risk
    1. Each parcel of land should be set up in a separate LLC.
      1. Each parcel of land should have a lease agreement with the entity or business using it.
    2. Each high-risk asset should be placed in a separate entity.
      1. Transportation
        1. Each transportation entity should have its own agreement.
    3. Travel Agency
      1. If you are booking more than trips, separate this off to a separate LLC and set it up as a separate travel agency.
  6. Develop equipment and asset replacement plan

Years 5-10

  1. Look at moving assets into a Limited Liability Limited Partnership for greater protection
  2. Look at who is going to take over your business.
    1. Start to create an exit plan
  3. Create Insurance deductible account and fund
    1. Raise your deductible based on the amount of money you have been able to place in the insurance deductible account.
      1. This amount should be a minimum of five times your deductible, possible ten times.
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Releases: Using it Properly

Seven-Part Program to Build a Release to Defend your Business/Program/Activity

Releases are also known as “waivers” or “covenants not to sue.” They are also called “allocation of risk” or “transference of risk” documents. Whatever the name, they are an agreement between two parties as to who will assume the cost of injury prior to the injury.

Another type of document called an “Assumption of Risk” document does not provide the complete extent of legal defenses a release provides. However, in states that do not allow the use of a release, or if you are dealing with minors, an assumption of the risk agreement is your best defense. You need to know the difference, know when to use which one and when to combine the two.

A properly written release, which includes assumption of the risk language, used in conjunction with a well-thought-out marketing plan, and post-accident follow-up can stop lawsuits. Your release or waiver is not the only document you need to build a wall of protection around your business or educational program, but it is the most important. The other two are a legal entity protecting your business like an LLC and insurance.

Why include “marketing plan” in a risk-management memo? Because:

Releases will be different for the type of business you run. An outfitter, a business where guides accompany the trip, will have a different release from a livery or canoe rental business where a canoe or equipment is rented for the day. Activities where parents accompany children and maintain control and supervision over children will be different from either an outfitter or a livery release. Some releases may be simple notices of those risks which the participants need to be aware of and those campground rules which are designed to prevent injuries.

Your release will also be different based on the activity, the state where the release will be used, the age of your participants and the risks you want them to assume. No release, if it is to be effective, is going to be like any other release.

You need to understand what type of operation you have, not only from your perspective, but also from your participant’s point of view. What you see as normal or fun may scare your participants. Always look at your world through their eyes.

Releases for product liability issues are a different type of release entirely.

First Line of Defense

The first document your client reads or sees should start the process of preparing the client for the risk, and the fact that he or she will be assuming the risk of the activity. Most times this will be your brochure, marketing letter course catalog or website. Emphasize in these that your company uses a release, and that customers must sign the release before they can participate in an activity or trip. You might want to state there is the possibility that guests can be injured or die during the trip, and that you are not responsible for their injuries or their lost or destroyed personal property. This opening information is the first brick in your wall of protection.

You don’t want an injured guest suing you stating that if they knew about the risk and the release, they would not have gone on the trip or attended your activity.

Second Line of Defense

The next step is to ensure that the release is given to your customers as soon as possible. This may not be possible with walk-in business. However, you should always make the attempt. Put your release on your website so your guests can review it if they go to your website.

Make sure your release and the other documents you use, do not create a conflict or a lawsuit. Do not make promises you cannot keep about the safety of the trip or activity. Doing so can make your release a worthless piece of paper. This can happen if you do not answer questions about your release, or you answer the questions incorrectly. Your staff should also be trained to answer questions correctly and adequately represent the risks involved.

If your release is for a product being purchased, then the release should be given to the customer as you are preparing the product for sale. Give the customer plenty of time to read the release and ask any questions. Placing your release on your website in advance so they can read it, then eliminates the argument, the signor did not have enough time to read and understand the release.’

If you can’t provide the release to a purchaser of your product in advance, then provide an incentive for them to sign the release after they purchase the product. Extend the warranty or send them something that qualifies as consideration to provide value for signing the agreement.

Defense Three: Train your staff in your release

Tell your staff to hand the release to the client with the front up. Ask them to read both sides of the agreement and sign and complete the backside.

If a guest asks if the release is valid, say yes. Tell them the release is significant in keeping your costs down by keeping your insurance at a reasonable amount. A release identifies who is going to pay for any injuries or damages in advance so you do not have to spend time and money litigating this issue later.

Defense Four: Assumption of the Risk

Every release should outline the risk associated with that particular activity. Saying something is dangerous is not enough. You need to specify many of the actual risks for the activity. Remember most of the customers interested in your trip or activities are excited because they have never participated in a trip like yours. As such they may also have no idea what the risks of the activity. They may want to compare your activity to the last thrilling experience they had, an amusement park. You need to explain those risks to them. Many companies do this in a “safety talk.” Educational institutions do this at pre-trip meetings or briefings. Trying to impress a jury with what was said in a meeting or on the side of a river can be daunting. Your release can help prove your clients knew and understood the risk they were about to undertake.

Rental agreements can be interpreted several different ways by the courts. If you believe you are running a pure rental operation, your documents can be significantly different from a rental operation the courts consider an outfitter. Review your operation with your attorney to make sure your attorney understands your business and which interpretation the courts will apply.

Assumption of Risk – Defense Five and Your First Step Your Risk-Management Program

If you have the opportunity to use a release, then the following information will be included in your release and incorporate the risks of the activity to be assumed by your guest. If you do not have the opportunity to use a release because of state law, then you will be using an assumption of risk document.

Assumption of Risk is a legal defense that can be used to win a lawsuit or substantially reduce the damages of a lawsuit. It may also be the only line of defense with minors. As such Assumption or Acknowledgment of the Risk (ASSUMPTION OF THE RISK) plays an important role in your business.

The legal effect and how an assumption of the risk and Contributor Negligence is used in the Courtroom are substantially different. However, from a non-lawyer perspective, there is little difference between the doctrines.

Contributory Negligence is an argument based upon the facts at trial where the jury decides if the Plaintiff’s or injured parties actions contributed to his injuries. If the Plaintiff knew about the risks and still acted or refused to act causing his injuries, he contributed to his injuries, and his damages are reduced by his percentage of his contribution to his injury. Assumption of Risk is used here because the idea is well defined by the words. In addition, when your clients truly know and understand the risk, they are less likely to be injured, let alone start a lawsuit.

Assumption of Risk must be proved by you to win a lawsuit. You will need to prove that your client knew and understood the risk they were about to undertake. Not only must they know which things were dangerous; they needed to know how dangerous. For example, most people know traveling to third-world countries may be dangerous. However, do most Americans really understand you can die from what Americans would consider a minor illness or injury. Medical care in Third-World countries can be substandard to the care someone would receive in America. Consequently, this two-step knowledge can be difficult to prove in some instances. It requires an affirmative set of actions to move this knowledge and understanding to the level necessary to win a lawsuit.

Most of us identify the obvious risk of a sport. Water activities we identify drowning, rock climbing we understand falling, and winter camping, freezing. However, a substantial amount of the injuries’ Outdoor Recreation arise away from the main activity. Side hikes while rafting are the major cause of injuries in the Grand Canyon. A large percentage of the injuries in rock climbing occur when items fall on the climber, or they fall hiking to the climb. Study the injuries you clients receive and make sure the most common, no matter how trivial, are listed in your assumption of risk document or release, as well as the most horrendous.

The easiest way to prove your clients knew and understood the risk is to put that information in writing and have your clients acknowledge they read those risks in the document. Some states require the information concerning the risk to be a component of a release. As such, your release should always contain language outlining the risks of the activity. Judges frequently comment on the fact the injury sustained by the Plaintiff was specifically identified in the release or assumption of risk document.

Remember that any document or video your clients read or view can be used to prove they understood the risks. Your release, promotional information, pictures in the office or videos are important. To prove the clients knew and accepted the risk several companies or industries have developed videos to show to clients before they undertake the activity. A video has proven to be extremely important in preventing possible lawsuits. It is difficult to sue, when the actions that injured the Plaintiff were identified visually and audibly as something not to do. Add to that the release identified the risk and stated the client had seen the video. This is a fairly iron clad wall against an invasion by injured customers. To see examples of these, OARS the whitewater rafting and adventure travel company, has a complete set of videos on the risks of rafting at: http://rec-law.us/NvHtqu

Defense Six: Understand the Risk from Your Client’s Perspective

To prepare your clients for the risk, you need to evaluate the risk in advance. Do this from your client’s perspective, not from your own. Gather information on what the actual risks of the activity are. Ask your insurance company for a list of the claims they have had over the past several years. Look at the accidents you have had over the life of your company, and that may be peculiar to your operation, where you are operating, or your clients. Finally, always include the worst-case scenario in your release, even if that chance is remote such as paralysis, death, mental anguish, or trauma.

You will be able to explain the risks to them, so they understand, not just what you believe are the risks.

Because assumption of risk is a personal question to be examined by the judge and jury, you need to make the knowledge personal. Use the examples included here as a starting point to build a risk statement for your operation.

Defense 7: The Wall is up, Don’t Tear it Down.

Your wall of defense consists of multiple blocks that inform your guests of the risks they are going to undertake and who will pay for any injury they may encounter. The final Defense in your defense wall is how you deal with your guests after they have been injured. If you have done a good job of informing your guests of the risks, then they should be mentally prepared to accept the fact the injury was probably their fault and their responsibility. However, right after an injury is not the time to bring that up.

You want to treat an injured guest the same way you treated them before their injury. Nothing has changed. They are still a guest who can pay your more money for another trip or send you referrals with their good word. Treat them the way you treat everyone. Be attentive, help them and their family. Follow up and remain their friend.

Moss Maxims: Ideas to Remember when dealing with Guests

10 Signs of Great Risk Management    http://rec-law.us/sUzpHT

7 Mistakes Made by People who are called Defendant    http://rec-law.us/stli09

Crisis Response    http://rec-law.us/ul6Nrl

Reasons Why People Sue    http://rec-law.us/uZ5RKR

Ten Commandments of Dealing with People in a Crisis    http://rec-law.us/KoI8Xo

Additional Articles on Why People Sue

It’s Not Money    http://rec-law.us/zxmmqy

Serious Disconnect: Why people sue.    http://rec-law.us/wm2cBn

Why do people sue? Not for the money.    http://rec-law.us/A0866T

A Church wants to apologize and the insurance company for the church panics. What else would you expect a church to do?    http://rec-law.us/zI0FUI

Great article on why some corporate apologies fall short and they are not sincere    http://rec-law.us/xb1uVb

Her life is permanently changed, but she really wants an apology    http://rec-law.us/yHjVn0

Make sure you understand what the other side is saying    http://rec-law.us/1b5m1mt


Poorly written release in Massachusetts stop lawsuit for falling off a horse during riding lessons.

Release used poor language and was hidden within an application to learn to ride.

Markovitz v. Cassenti, 56 N.E.3d 894, 90 Mass.App.Ct. 1102 (2016)

State: Massachusetts , Appeals Court of Massachusetts

Plaintiff: Joanne Markovitz

Defendant: Christine Cassenti

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the Defendant

Year: 2016

Summary

A release stopped a negligence claim for falling off a horse in Massachusetts. The plaintiff had been riding with the stable for more than a year and had been riding this horse for over a month when she fell off. She argued the Massachusetts Equine Liability Act allowed her to sue. The court said not, the release stopped her lawsuit and her arguments about the Massachusetts Equine Liability Act were incorrect.

Facts

On July 16, 2009, the plaintiff filled out and signed an application for riding lessons at Chrislar Farm. In that application, she wrote that she had six months of riding experience in 2001 and that she wanted to continue to learn to ride. The form contained a section entitled ” RELEASE,” which stated: ” I, the Club member/Student (or parent or guardian) recognize the inherent risks of injury involved in horseback riding/driving and being around horses generally, and in learning to ride/drive in particular. In taking lessons at CHRISLAR FARM or participating in Club activities, I assume any and all such risk of injury and further, I voluntarily release CHRISLAR FARM, its owners, instructors, employees and agents from any and all responsibility on account of any injury I (or my child or ward) may sustain for any reason while on the premises of CHRISLAR FARM or participating in Club activities, and I agree to indemnify and hold harmless CHRISLAR FARM, its owners, instructors, employees and agents on account of any such claim.”

The plaintiff signed the form on the signature line immediately below the release.

Between July of 2009 and September of 2010, the plaintiff took thirty-minute private riding lessons on a regular basis. Between September, 2010, and January, 2011, the plaintiff took one-hour group riding lessons and walked, trotted, and cantered several different horses. On September 3, 2010, the defendants leased a horse named Jolee. Christine Cassenti had known this horse for a long time. The trainer conducting the lessons thought that the horse was ” sweet and did everything you asked her to do.”

The plaintiff first rode Jolee during a ” musical horses” exercise. She then rode Jolee during the next three one-hour group lessons on December 23, 2010, December 30, 2010, and January 6, 2011. At one point during the December 23, 2010, lesson, Jolee went from a trot into a canter and stayed in a circle formation instead of performing a figure eight. Following the instructions from the trainer, the plaintiff slowed down and stopped Jolee. The plaintiff rode Jolee without incident on December 30, 2010, and January 6, 2011.

On January 20, 2011, a year and one-half after the plaintiff began taking lessons at Chrislar Farm, the plaintiff rode Jolee for the fourth time. She noticed that Jolee briefly pinned her ears. After finishing a walk, the plaintiff began trotting Jolee. At one point, Jolee sped up into a faster trot and turned left, causing the plaintiff to lose her balance and fall.

Analysis: making sense of the law based on these facts.

The argument the plaintiff attempted to make was the Massachusetts Equine Liability Act created a duty on the part of the defendants that was not protected by the release. The act listed risks which a rider of a horse accepted. The statute had an exception to that list

“Nothing in subsection (b) shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person: ” (1) . . . (ii) provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant . . . to safely manage the particular equine based on the participant’s representations of his ability.”

The plaintiff argued this created a new duty which the defendant in this case breached.

However the court found the section did not create a new duty, it only allowed a plaintiff to proceed with a negligence claim in certain exceptional situations. Because the release barred negligence claims the plaintiff’s lawsuit was properly dismissed by the courts.

So Now What?

The odd thing about this case is there was no gross negligence claim to get around the release.

However, the were some risks run by the plaintiff that in other states might have caused problems. They were obvious issues by this court because the court raised them in the facts.

  • The form Application for Riding Lessons also contained the release, hidden in the form.
  • The language in the release was weak and did not contain the word negligence.

But for solid law in Massachusetts supporting releases this case in other states would have gone differently.

What do you think? Leave a comment.

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Outline for Starting a New Outdoor Recreation Business

Updated May 28, 2020

Not every business will follow this outline; however, it provides some basic ideas on when and why you need legal advice to protect your business.

Check back as this page will be updated with new ideas and articles.

Year 1

  1. Create Limited Liability Company for your business: Because the cost of starting an LLC in most states is minimal, start one immediately and start using the name to provide notice that you are doing business as an LLC.

For more information about entity options see: Starting Your Outdoor Recreation Business: Entities and Taxation

  1. Unless you want your business to be a non-profit business, then set up a non-profit corporation.
  2. Even if you expect to go public at a later time, an LLC provides the most protection immediately.
    1. Start the LLC in your own state. If you need to later, you can move the LLC or start another LLC or corporation in a state that might have better laws than your state, such as Delaware.
      1. Compare the cost of starting an LLC in your home state $50-$100 to Delaware, $750.00
  1. Apply for the necessary permits to operate on the land you want to be using.
    1. Inquire with the land managers if there are permits available.
    2. Find out how to apply for a permit and the requirements
    3. Determine if you can get a permit.
    4. Make friends with the person in charge of permits.
  2. Apply for Insurance for your business

    I can provide you with a list of insurance carriers who specialize in Outdoor Recreation Insurance. Email me at mailto:jhmoss@gmail.com?subject=I’m interested in your list of insurance brokers Include your name and contact information and a little about your business.

    1. Basic business liability policy
      1. This provides protections you might need such as someone falling at your office, advertising liability, etc.
    2. Specialty risk policy for your outdoor activity
      1. This provides the protection for the specific activity you want to do.
        1. Make sure it provides coverage for SAR costs.
    3. Commercial Automobile policy
      1. If you are going to transport people, this policy will probably be your most expensive policy so purchase it only when you need it.
  3. Write a Risk-Management Plan
    1. Probably one page long. Any longer and you are writing a plan for attorneys to sue you.
    2. You cannot write a plan that covers every risk you, your employees and your guests are going to encounter. So don’t try.
    3. What you can do is take an ICS course, online, and learn how write a plan that deals with what to do, what you have and who to contact rather than trying to decide how to put out a fire.

    For more on this subject see: Creating Your Risk-Management Plan

  4. Identify classes and education needed by you and your employees for the programs you will be running/teaching/instructing. (Certification is not the key; education is. See Basics of the Article are Good – But it confuses certification, accreditation and most importantly standards.)
    1. First Aid Classes
      1. Dependent upon the distance from Emergency Medical Services
      2. Dependent upon the first aid supplies you can carry.
      3. Dependent upon the injuries you guests & employees may incur.
      1. This is a critical skill set, knowledge and practice to operate on my lands in the US.
    2. Technical Classes (Examples)
      1. Swift Water Rescue
      2. Top Rope
      3. Mountaineering Guide
    3. Classes required by a State of Federal Licensing Agency. (Examples)
      1. Child Care
      2. Health Department Food Preparation
    4. Educational classes(Examples)
      1. Flora, Fauna & Ecosystem training for the area you will be operating.
  5. Create your marketing campaign and social media presence
  6. Contact me to write a release for you.

    Send an email to jhmoss@gmail.com and request the form to fill out to complete a release for your business. Please provide contact information and information about your business.

    1. The release will be based on:
      1. What you intend to do.
      2. On whose land you intend to do it.
      3. The guests you want work with.
      4. The state where you intend to work.
  7. Apply for any state license you need to operate.
    1. Travel Agent License
    2. Transportation license
    3. Outfitter and/or guides licenses
  8. Identify Trade Associations & join.

For more on this see: Why you should always be a member of the trade association that represents the activity you provide?

9. Hire a CPA

Year 2-3

  1. Determine if you need additional Limited Liability companies.
    1. Separate LLC’s for each state you may be operating in.
    2. Separate LLC for the assets you have.
      1. Each piece of Real Estate should be located in its own LLC.
      2. All vehicles should be in a transportation LLC.
    3. Separate LLC’s for each Federal, State or Local Permit
      1. Alternatively, you can keep the permits in your name.

    For more information on this subject see: Why would you create more than one Limited Liability Company for your business?

    Call me to discuss these options and which one is best for you:
    Schedule an Appointment

  2. Write the necessary contracts to operate the different LLC’s
    1. Owner ship of the LLC’s for the different states you are operating in.
    2. Lease Agreements for real estate you are operating on.
    3. Contracts for hiring transportation services for your guests and employees
  3. Review your insurance policies every two years to make sure your coverage is adequate, and you are paying the proper premium.
  4. Create a risk management training program with local Fire, EMS, Law Enforcement and SAR.
  5. Start running background checks on new employees
    1. Do this every year if you are dealing with minors?
  6. Identify State and Local marketing associations and determine the value to your business.
  7. Further Develop Your Marketing Plan
    1. Adjust your marketing plan for the customers you are receiving.
    2. Develop social media presence
    3. Develop a referral program
    4. Develop a local community marketing program
  8. Develop vehicle maintenance programs
  9. Develop equipment maintenance and replacement programs
  10. Hire bookkeeper or payroll firm that works with your CPA.

Year 3-5

  1. Check to see if your release needs updated.
  2. Run background checks on all employees each year.
  3. Develop in-house training programs
    1. First Aid as needed by:
      1. Your Clientele
      2. Your area of operations
      3. Your permit or licenses
  4. Develop a managerial training program
  5. Set up additional LLC’s for holding assets and separating risk
    1. Each parcel of land should be set up in a separate LLC.
      1. Each parcel of land should have a lease agreement with the entity or business using it.
    2. Each high-risk asset should be placed in a separate entity.
      1. Transportation
        1. Each transportation entity should have its own agreement.
    3. Travel Agency
      1. If you are booking more than trips, separate this off to a separate LLC and set it up as a separate travel agency.
  6. Develop equipment and asset replacement plan

Years 5-10

  1. Look at moving assets into a Limited Liability Limited Partnership for greater protection
  2. Look at who is going to take over your business.
    1. Start to create an exit plan
  3. Create Insurance deductible account and fund
    1. Raise your deductible based on the amount of money you have been able to place in the insurance deductible account.
      1. This amount should be a minimum of five times your deductible, possible ten times.

Hillis v. McCall, 2020 Tex. LEXIS 187, 63 Tex. Sup. J. 577

Hillis v. McCall, 2020 Tex. LEXIS 187, 63 Tex. Sup. J. 577

Homer Hillis, Petitioner,

v.

Henry McCall, Respondent

No. 18-1065

Supreme Court of Texas

March 13, 2020

On Petition for Review from the Court of Appeals for the Fourth District of Texas

OPINION

Debra H. Lehrmann Justice

The ferae naturae doctrine limits a landowner’s liability for harm caused by indigenous wild animals on his property. In this premises-liability case arising out of a brown-recluse spider bite, we are asked how the doctrine affects the scope of the landowner’s duty to his bitten invitee. The landowner argues that he owed no duty to the invitee because he was unaware of the presence of brown recluse spiders on his property and he neither attracted the offending spider to his property nor reduced it to his possession. Further, the invitee had actual knowledge of the presence of spiders on the property. The court of appeals held that the property owner failed to conclusively establish the absence of a duty and thus reversed the trial court’s summary judgment in his favor. We agree with the landowner and reverse the court of appeals’ judgment.

I. Background

Homer Hillis owns a bed and breakfast (the B&B) and a neighboring cabin in Fredericksburg, Texas. He used the B&B as a second home until 2012, when he began renting it out, mainly on weekends. Hillis hired a housekeeper to prepare and clean the B&B before guests arrived. That process included utilizing “bug bombs” in the event the housekeeper noticed any pest problems. Thus, as Hillis described it, pest control at the B&B was conducted on an “[a]s needed” basis.

In early 2014, Hillis leased the neighboring cabin on the property to Henry McCall.[ 1] The cabin had no washer or dryer and had only a small refrigerator, so Hillis permitted McCall to use the laundry facilities and larger refrigerator in the B&B. McCall also offered to “open up” the B&B for guests and others needing access, such as electricians and other maintenance workers. According to McCall, Hillis typically called him several days before guests arrived and asked him to perform various tasks.[ 2]

On December 12, 2014, McCall accessed the B&B at Hillis’s request to check the dishwasher and investigate whether the sink was leaking. While checking under the sink for a leak, McCall was bitten by a brown recluse spider, which is a venomous spider found in several states, including Texas.

Before he was bitten, McCall had observed spiders in both the cabin and the B&B on several occasions and had notified Hillis about the general presence of spiders in the B&B.[ 3]According to Hillis, when McCall reported issues with insects or spiders, Hillis would pass along the information to the housekeeper who prepared the B&B for guests. Hillis also averred that customer reviews of the B&B had never complained of insects. Neither Hillis nor McCall had any personal knowledge about the presence of brown recluse spiders on Hillis’s property specifically or in the surrounding area.[ 4] However, Hillis explained that he had read reports on the internet that brown recluse spiders “are habitats [sic] of Texas for a long time, and I assumed they were around my property.” Hillis had heard of people being bitten by brown recluses “elsewhere,” but not on his property.

McCall sued Hillis for negligence under a premises-liability theory, alleging that the presence of brown recluse spiders on Hillis’s property constituted an unreasonably dangerous condition, that Hillis knew or should have known of the condition, that Hillis owed McCall a duty to adequately warn him of the condition or make the property safe, that Hillis breached that duty, and that McCall suffered damages as a result. Hillis filed a motion for summary judgment, arguing that, under the longstanding doctrine of ferae naturae, he owed no duty to McCall with respect to indigenous wild animals that Hillis had neither introduced to nor harbored on the property. The trial court granted the motion, and McCall appealed.

The court of appeals reversed. 562 S.W.3d 98, 106 (Tex. App.-San Antonio 2018). Viewing the evidence in the light most favorable to McCall, the court concluded that “McCall was bitten by a spider in an artificial structure and Hillis knew or should have known of an unreasonable risk of harm posed by the spiders inside the B&B.” Id. Accordingly, the court held that Hillis had failed to establish as a matter of law the absence of a duty to warn or make safe under the doctrine of ferae naturae. Id.

II. Discussion

A. Standard of Review

A trial court’s order granting summary judgment is reviewed de novo. Tarr v. Timberwood Park Owners Ass’n, 556 S.W.3d 274, 278 (Tex. 2018). A party moving for traditional summary judgment has the burden to prove that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 865 (Tex. 2018); see also Tex. R. Civ. P. 166a(c). “When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citations omitted).

B. Premises Liability and Ferae Naturae

“A claim against a property owner for injury caused by a condition of real property generally sounds in premises liability.” Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 642 (Tex. 2016). When the claim is based on the property owner’s negligence, the threshold question is whether the owner owed a duty to the injured person. See Brookshire Grocery Co. v. Goss, 262 S.W.3d 793, 794 (Tex. 2008). “The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence” at issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).[ 5] Further, the duties owed by a landowner in a premises-liability case “depend upon the role of the person injured on his premises.” Rosas v. Buddies Food Store, 518 S.W.2d 534, 535 (Tex. 1975). When the injured person qualifies as an invitee, [ 6] as McCall did, [ 7] then as a general rule the landowner owes a “duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not.” Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015); see also United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017) (landowner’s duty to an invitee is to “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner . . . knows about or in the exercise of ordinary care should know about” (citation omitted)). In line with that rule, the duty does not extend to warning the invitee of hazards that are open and obvious. Austin, 465 S.W.3d at 204.

Notwithstanding the general rule regarding the duty a premises owner owes to invitees, we have approached the scope of the duty differently in some circumstances. For example, we have held that a premises owner generally has no duty to protect invitees from the criminal acts of third parties on the owner’s property, but we recognize an exception “when the owner knows or has reason to know of a risk of harm to invitees that is unreasonable and foreseeable.” Del LagoPartners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010); see also Austin, 465 S.W.3d at 206 (characterizing the duty recognized in Del Lago as an exception to the general rule that a landowner owes no duty to warn an invitee with respect to unreasonably dangerous conditions that are obvious or known to the invitee). Pertinent to this case, we have also recognized that, with certain exceptions, a premises owner generally owes no duty to protect invitees from wild animals on the owner’s property. Union Pac. R.R. Co. v. Nami, 498 S.W.3d 890, 896-97 (Tex. 2016). Under this longstanding doctrine of ferae naturae, such a duty does not exist “unless the landowner actually reduced indigenous wild animals to [his] possession or control,” “introduced nonindigenous animals into the area,” or affirmatively “attract[ed] the animals to the property.” Id. at 897 (citations omitted); see also Nicholson v. Smith, 986 S.W.2d 54, 63 (Tex. App.-San Antonio 1999, no pet.).

The reasoning underlying the doctrine is that wild animals “exist throughout nature” and are “generally not predictable or controllable.” Nami, 498 S.W.3d at 897 (quoting 4 Am Jur. 2d, Animals § 62 (2007)).[ 8] In turn, the mere fact that an indigenous wild animal has crossed a landowner’s property line does not make the landowner better able to protect an invitee than the invitee is to protect himself. Id.; see also Nicholson, 986 S.W.2d at 63 (“Under ordinary circumstances, Texas landowners do not have a duty to warn their guests about the presence and behavior patterns of every species of indigenous wild animals and plants which pose a potential threat to a person’s safety . . . .”). The risk and foreseeability of injury do not outweigh the severe burden and potential consequences of imposing a general duty on a landowner with respect to “indigenous wild animals in their natural habitat, in the normal course of their existence.” Nicholson, 986 S.W.2d at 62; see also Brantley v. Oak Grove Power Co., No. 10-12-00135-CV, 2012 WL 5974032, at *3 (Tex. App.-Waco Nov. 29, 2012, no pet.) (mem. op.) (holding that a landowner owed no duty to a construction worker who was bitten by a spider at a construction site, in part because the spider was “in its natural habitat in the normal course of its existence” and the employer had engaged in no affirmative or negligent acts to draw spiders to the area).

However, courts applying the ferae naturae doctrine have long recognized an additional exception to the general no-duty rule, holding that a landowner: could be negligent with regard to wild animals found in artificial structures or places where they are not normally found; that is, stores, hotels, apartment houses, or billboards, if the landowner knows or should know of the unreasonable risk of harm posed by an animal on its premises, and cannot expect patrons to realize the danger or guard against it.

Nami, 498 S.W.3d at 897 (citing various treatises); see also Overstreet v. Gibson Prod. Co., 558 S.W.2d 58, 61 (Tex. App.-San Antonio 1977, writ ref’d n.r.e.) (noting that a landowner owes no duty to exercise reasonable care to protect invitees from the acts of wild animals on the property “until he knows or has reason to know that the dangerous acts by wild animals are occurring or about to occur”). Under that exception, a duty akin to the general duty owed to invitees under Texas law-that is, a duty to warn of or make safe from an unreasonably dangerous condition about which the owner knows or reasonably should know but the invitee does not-arises with respect to “wild animals found in artificial structures or places where they are not normally found.” Nami, 498 S.W.3d at 897.

We generally agree with the policies underlying imposing such a duty on landowners with respect to wild animals that pose an unreasonable risk of harm inside artificial structures like homes, stores, hotels, and offices. While landowners cannot be held to account for every animal that finds its way inside, particularly small animals like insects and spiders that may easily enter and escape detection, we also do not expect invitees as a general matter to exercise any particular vigilance with respect to wild animals when inside.[ 9] Thus, when a wild animal enters such a structure, and the owner knows or has reason to know about the animal’s presence and the unreasonable risk of harm presented thereby but the invitee does not, it is reasonable to expect the owner to take steps to alleviate the danger or at least warn the invitee of it. See Overstreet, 558 S.W.2d at 61, 63 (holding that a grocery store owner was not liable to a patron who was bitten by a rattlesnake inside the store where nothing in the record suggested that the owner “knew, or had reason to know from past experience, that there was a likelihood that snakes presented a danger to patrons”).[ 10]

Hillis argues that this exception amounts to a “new duty” that places an untenable burden on landowners. We disagree. First, it comports with the general premises-liability duty imposed on landowners with respect to invitees as well as the consistently recognized caveat to the ferae naturae doctrine. Nami, 498 S.W.3d at 897; see also Nicholson, 986 S.W.2d at 62; Overstreet, 558 S.W.2d at 61. Second, the fact that the duty hinges on the owner’s knowledge or reason to know of an unreasonable risk of harm is significant. Unfortunately, many insects and spiders are commonly found indoors. The ever-present possibility that an insect or spider bite may occur indoors does not amount to an unreasonable risk of harm imposing a duty on property owners to guard against or warn of this fact of life. To that end, knowledge of the presence of a harmless indigenous insect or spider does not in and of itself amount to a reason to know of the presence of the kinds of insects or spiders that present a danger to invitees. On the other hand, a property owner who knows or should know of an unreasonable risk that dangerous indoor pests will bite invitees in his particular building has a duty to alleviate the danger or warn of it if the invitees neither know nor should know of the heightened risk. This strikes an appropriate balance between protecting invitees and ensuring that the burden placed on landowners is not unduly onerous.

Having outlined the parameters of the pertinent duty, we turn to its application to the facts of this case.

C. Analysis Viewing the evidence in the light most favorable to McCall, the pertinent facts are as follows: • Hillis’s property is in Fredericksburg, in the Texas Hill Country. • Hillis rented a cabin on the property to McCall and used a residence on the property as a B&B, mainly for weekend rentals. • Hillis conducted pest control in the B&B on an as-needed basis by instructing the housekeeper to set off bug bombs if she saw pests while preparing the B&B for guests. • McCall, an invitee, was bitten by a brown recluse spider inside the B&B while checking under the kitchen sink for a leak. • Brown recluse spiders are indigenous to Texas. • Hillis had read about brown recluse spiders on the internet and knew that they were indigenous to Texas and thus that they could be on his property. • McCall did not know brown recluse spiders were indigenous to Texas. • McCall had seen spiders on several occasions in both the cabin and the B&B. When he saw spiders in the B&B, he would notify Hillis, who passed along the information to the housekeeper who prepared the B&B for guests. • Customer reviews of the B&B had never mentioned insects. • Hillis had no actual knowledge of the presence of brown recluse spiders on his property before McCall was bitten. • McCall had no actual knowledge of the presence of brown recluse spiders on Hillis’s property before McCall was bitten.

On these facts, we hold that Hillis owed McCall no duty as a matter of law, notwithstanding the fact that the injury occurred inside the B&B. McCall’s position is essentially that because Hillis knew spiders had been seen in the B&B, and because he knew brown recluses are found in Texas, he knew or should have known that a dangerous brown recluse spider was in the B&B and thus had a duty to warn McCall.[ 11] We disagree.

First, as noted, knowledge of the general intermittent presence of spiders does not necessarily amount to knowledge of an unreasonable risk of harm, and Hillis had no particular reason to know that brown recluses, or other venomous spiders, were inside the B&B. Although Hillis knew that brown recluses are indigenous to Texas, the record does not show that he had identified or should have identified that the spiders McCall previously reported seeing inside the house presented a danger. Indeed, McCall testified in his deposition that the spiders he had seen in the B&B and reported to Hillis before McCall was bitten were the “[s]ame type of spiders” he had seen in his previous home in Fredericksburg, and nothing in the record indicates that he was referring to brown recluses or to any other type of venomous spider. The record thus conclusively negates a determination that Hillis knew or had reason to know of an unreasonable risk of harm presented by brown recluse spiders inside the B&B.

Further, McCall and Hillis had identical actual knowledge of the presence of spiders on the property: both knew that they had been seen in the B&B periodically, and neither knew of the presence of brown recluses or of other types of venomous spiders.[ 12] According to McCall, Hillis should have warned him that the spiders McCall himself had seen could have been venomous. But it is simply common knowledge that some spiders are venomous and others harmless. We will not impose a duty on a landowner to warn an invitee about something he already knows. See Nami, 498 S.W.3d at 897 (recognizing that imposition of a duty with respect to wild animals inside an artificial structure depends in part on a determination that the invitee cannot reasonably be expected “to realize the danger or guard against it”).

As noted, the existence of a duty is a question of law that depends on the underlying facts. Walker, 924 S.W.2d at 377. Even with respect to wild animals found inside, an owner’s duty to invitees does not extend beyond warning about or making safe from unreasonably dangerous conditions about which the owner knows or has reason to know but the invitee does not. On the record before us, we hold that Hillis negated a duty to McCall as a matter of law.

III. Conclusion

The trial court correctly granted summary judgment for Hillis on McCall’s premises-liability claim. Accordingly, we reverse the court of appeals’ judgment and render judgment that McCall take nothing.

———

Notes:

[ 1] Karen Oringderff, McCall’s common-law wife, was also a tenant. She is not a party to this lawsuit.

[ 2] Hillis disputed this characterization, stating that he typically did not affirmatively request McCall’s assistance with respect to preparing the B&B for guests. Rather, Hillis merely accepted McCall’s offer to help, was “happy that he was willing to do it, and . . . appreciated it.” For summary judgment purposes, we will accept McCall’s version of events.

[ 3] McCall was responsible for pest control in the cabin while Hillis remained responsible for pest control in the B&B.

[ 4] According to the court of appeals, “Hillis admitted in his deposition that he knew there was a population of brown recluse spiders on the property.” 562 S.W.2d 98, 106 (Tex. App.-San Antonio 2018). Neither party references deposition testimony to that effect, and our review of the record revealed no such testimony.

[ 5] We balance several factors in determining whether a duty exists, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the landowner’s conduct, the burden of preventing the injury, and the consequences of placing that burden on the landowner. Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).

[ 6] An invitee is “one who enters on another’s land with the owner’s knowledge and for the mutual benefit of both.” Rosas, 518 S.W.2d at 536.

[ 7] McCall alleged in his petition that he qualified as an invitee when he was bitten, and Hillis conceded as much for purposes of his summary judgment motion. We therefore assume without deciding that McCall was an invitee.

[ 8] We recognized in Nami that insects are treated as wild animals. 498 S.W.3d at 896 (citing Restatement (Second) of Torts § 506 cmt. a (Am. Law Inst. 1977)). We see no reason to treat arachnids differently.

[ 9] In light of these considerations, the fact that the injury occurs in or near any type of artificial structure does not necessarily give rise to the exception. For example, in Brantley, the plaintiff was bitten by a spider while “standing on a concrete slab [at a construction site] with a partial structure and no roof.” 2012 WL 5974032, at *3. The court of appeals, noting testimony that “there were spiders everywhere in the field” at the site, held that the spider that bit the plaintiff was in its natural habitat and no duty was owed. Id. While we cannot anticipate how the doctrine would apply with respect to every type of artificial structure imaginable, we can say that we do not view barns and billboards in the same way as structures like houses, hotels, offices, and retail stores in evaluating the duty owed with respect to wild animals.

[ 10] We need not address whether an additional exception exists when a landowner has actual knowledge of an unreasonable risk of harm presented by a wild animal on his property (even while outside) and the patron neither knows nor reasonably should know of the risk.

[ 11] McCall does not contend that Hillis engaged in any affirmative or negligent acts to draw venomous spiders to the property.

[ 12] The court of appeals did not consider the effect of McCall’s awareness of the presence of spiders inside the B&B on whether Hillis owed him a duty, holding that “Hillis did not assert McCall’s knowledge as a basis for summary judgment [and instead] relied exclusively on the doctrine of ferae naturae to negate the element of duty.” 562 S.W.3d at 100 n.1. We disagree with that narrow characterization of Hillis’s summary judgment motion. In challenging the existence of a duty in that motion, Hillis focused principally on the absence of evidence that he had attracted brown recluses to the property; however, he explicitly referenced McCall’s knowledge as supporting a finding that no duty was owed. Hillis then elaborated on the significance of that knowledge in his reply in support of the motion. We will not ignore the relevant evidence of McCall’s knowledge that Hillis expressly brought to the trial court’s attention in his summary judgment motion and reply.

———


Doherty v. Diving Unlimited International, Inc., 484 Mass. 193, 2020 Mass. LEXIS 134, 140 N.E.3d 394, 2020 WL 949922

Doherty v. Diving Unlimited International, Inc., 484 Mass. 193, 2020 Mass. LEXIS 134, 140 N.E.3d 394, 2020 WL 949922

Margaret C. Doherty, personal representative, [ 1]

v.

Diving Unlimited International, Inc., & others.[ 2]

No. SJC-12707

Supreme Judicial Court of Massachusetts, Essex

February 27, 2020

Heard: October 4, 2019.

Civil action commenced in the Superior Court Department on May 5, 2015. The case was heard by Janice W. Howe, J., on a motion for summary judgment The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Neil Rossman for the plaintiff.

Martin K. DeMagistris for John Golbranson.

Jennifer A. Creedon, for Massachusetts Defense Lawyers Association, amicus curiae, submitted a brief.

John J. Barter, for Professional Liability Foundation, Ltd., amicus curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

LOWY, J.

Following a fatal scuba diving accident involving the plaintiff’s decedent in May 2014, the plaintiff, as personal representative of the decedent’s estate, brought a wrongful death action under G. L. c. 229, § 2 against the manufacturer of the “dry suit” that the decedent used on his dive, the individual who supplied the decedent his diving equipment and outfitted him, the company that owned and rented that equipment, and the dive leader, John Golbranson. After the plaintiff had settled with all defendants other than Golbranson, a judge of the Superior Court granted summary judgment in his favor based on the release from liability and covenant not to sue that the decedent signed just before his death. The plaintiff appealed, claiming that the statutory beneficiaries have an independent right to a wrongful death action that the decedent could not have waived. We transferred this case from the Appeals Court on our own motion.

As explained in our opinion in GGNSC Admin. Servs., LLCv.Schrader, 484 Mass., (2020) (GGNSC), released today, we conclude that the beneficiaries of a wrongful death action have rights that are derivative of, rather than independent from, any claim the decedent could have brought for the injuries causing his death. Therefore, the waivers the decedent signed control all claims for his wrongful death. Accordingly, we affirm the grant of summary judgment.

1. Background.

a. Facts.

“In reviewing a motion for summary judgment, we view the evidence in the record in the light most favorable to the nonmoving party.” Meyerv.Veolia Energy N. Am., 482 Mass. 208, 209 (2019). Here, where the plaintiff does not contest on appeal the judge’s determination that the waivers were valid, or that Golbranson was acting as an agent for Diving Unlimited International, Inc. (DUI), the manufacturer of the dry suit that the decedent wore on his dive, we present only the essential facts.

The decedent, who was a certified open-water scuba diver, drowned while participating in a promotional diving equipment event that was sponsored by DUI and held in Gloucester. At this event, where local divers tested DUI’s dry suit, Golbranson was the leader of the dive, overseeing some of the participants.

Prior to participating in the event, the decedent signed two documents. The first was a release from liability which had several subsections that were set forth in all capital letters and underlined, including “effect of agreement,” “assumption of risk,” “full release,” “covenant not to sue,” “indemnity agreement,” and “arbitration.” In capital letters under the subsection titled “effect of agreement,” it said, “Diver gives up valuable rights, including the right to sue for injuries or death.” It also told the decedent to read the agreement carefully and not to sign it “unless or until you understand.” The subsection titled “full release” stated that the decedent “fully release[d] DUI from any liability whatsoever resulting from diving or associated activities,” and the subsection titled “covenant not to sue” stated that the decedent agreed “not to sue DUI for personal injury arising from scuba diving or its associated activities,” and that the decedent’s “heirs or executors may not sue DUI for death arising from scuba diving or its associated activities.”

The decedent also signed an equipment rental agreement which stated, “This agreement is a release of the [decedent’s] rights to sue for injuries or death resulting from the rental and/or use of this equipment. The [decedent] expressly assumes all risks of skin and/or scuba diving related in any way to the rental and/or use of this equipment.”

Golbranson led a group comprised of the decedent and two other divers. During their dive, one of the divers experienced a depleted air supply. Golbranson signaled for the group to surface and to swim back to shore on the surface. Only the decedent resisted, emphasizing his desire to keep diving, thus separating himself from the group that was returning to shore. Shortly thereafter, the decedent surfaced and called for help. The decedent died at the hospital from “scuba drowning after unequal weight belt distribution.”

b. Procedural history.

In her capacity as the decedent’s personal representative, the plaintiff sued for the benefit of the decedent’s statutory beneficiaries. The second amended complaint alleged two counts against Golbranson resulting from his negligence: (1) conscious pain and suffering; and (2) the decedent’s wrongful death under G. L. c. 229, § 2. Golbranson moved for summary judgment, claiming that the release from liability and the equipment rental agreement (collectively waivers) protected him, as an agent of DUI, against any negligence suit or liability. The plaintiff opposed summary judgment, asserting that the waivers did not apply to Golbranson when he was negligent in his individual capacity and that neither waiver would prevent the decedent’s statutory beneficiaries from recovering damages for wrongful death.

The judge determined, and the plaintiff does not contest on appeal, that Golbranson acted as DUI’s agent during the dive. The judge also concluded that the two waivers that the decedent signed prohibited the plaintiff from bringing an action for negligence against Golbranson.[ 3]

As to the wrongful death claim, the judge concluded that G. L. c. 229, § 2, created a right to recovery that is derivative of the decedent’s own cause of action.[ 4] In addition, she concluded that the agreements were valid and, thus, precluded any recovery on behalf of the decedent’s statutory beneficiaries, who had no rights independent of the decedent’s cause of action, which was waived.

2. Discussion.

We review “a grant of summary judgment de novo … to determine whether . . . all material facts have been established and the moving party is entitled to judgment as a matter of law” (quotation and citation omitted). Boston Globe Media Partners, LLCv.Pep’t of Pub. Health, 482 Mass. 427, 431 (2019) .

Given that the plaintiff does not contest the judge’s determinations that the release from liability and the equipment rental agreement are valid and that those waivers covered Golbranson as an agent of PUI, the only issue before the court is whether the statutory beneficiaries in the action for wrongful death have a right to recover damages that is independent of the decedent’s own cause of action. See G. L. c. 229, §§ 1, 2. In GGNSC, 484 Mass. at, we have resolved that issue: our wrongful death statute creates a derivative right of recovery for the statutory beneficiaries listed in G. L. c. 229, § 1. Therefore, we hold that here, the valid waivers signed by the decedent preclude the plaintiff, as his “executor or personal representative,” from bringing a lawsuit under G. L. c. 229, § 2, for the benefit of the statutory beneficiaries.[ 5]

3. Conclusion.

We affirm the judgment of the Superior Court granting Golbranson’s motion for summary judgment.

So ordered.

———

Notes:

[ 1] Of the estate of Gregg C. O’Brien.

[ 2] Nicholas Fazah, EC Divers, Inc., and John Golbranson.

[ 3] As to the conscious pain and suffering claim, the judge found that the waivers negated the plaintiff’s ability to recover, because the decedent clearly had the authority to waive those rights.

[ 4] In her analysis, the judge relied on a decision by a judge of the United States Pistrict Court for the Pistrict of Massachusetts that underlay our opinion in GGNSC. See GGNSC, 484 Mass. at

[ 5] Golbranson devotes much time arguing that the release from liability and the equipment rental agreement negate any duty he may have had to the decedent. We note that the release from liability was limited to “claims concern[ing] ordinary negligence,” Sharonv.Newton, 437 Mass. 99, 110 n.l2 (2002), and Golbranson does not contend that the waivers would have applied to other forms of malfeasance, such as gross negligence, or willful, wanton, or reckless acts. We have “consistently recognized that there is a certain core duty — a certain irreducible minimum duty of care, owed to all persons — that as a matter of public policy cannot be abrogated: that is, the duty not to intentionally or recklessly cause harm to others.” Raffertyv.Merck & Co., 479 Mass. 141, 155 (2018). Specifically, “‘while a party may contract against liability for harm caused by its negligence, it may not do so with respect to its gross negligence’ or, for that matter, its reckless or intentional conduct.” I_d., quoting Maryland Cas. Co. v. NS_TAR Elec. Co., 471 Mass. 416, 422 (2015). Nonetheless, only the decedent’s executor or administrator has the right to bring a cause of action for gross negligence, not the statutory beneficiaries.

———


Why would you create more than one Limited Liability Company for your business?

There are dozens of reasons, read on.

There are dozens of reasons why you would create multiple limited liability companies for your business.

  1. A Limited Liability Company, (LLC), is easy and inexpensive to set up and operate.
  2. Each LLC protects the assets in it.
  3. Each LLC protects the assets of the other LLC’s
  4. Each LLC protects the assets of the parent LLC.
  5. Each LLC makes it harder to sue the parent and other LLC’s
  6. Like not having all of your eggs in one basket, separate LLC’s provide better protection for all of your assets.
  7. If you lose a lawsuit above your insurance limits, only the LLC that was sued is as risk not your other assets, locations or companies.
  8. Each LLC can be taxed a different way.
  9. You can take money out of each LLC a different way.
  10. Setting up different LLC’s for each state you may operate in provides more options for the LLC in that state.
  11. Setting up a different LLC for each state you operate in provides more tax advantages for the LLC in that state.
  12. Overall, you create more barriers to losing your business because of creditors.

And there are many more reasons beyond these twelve.

As an example let’s look at a small outfitter or climbing wall with the following assets:

  • Two locations (leased)
  • Equipment share by both operations
  • Equipment at each operation

You would set up the LLC’s this way probably.


Each separate business operation or real estate address should have it’s own LLC. Any equipment that is used by both LLC’s can be in a separate LLC that is rented to the business LLC’s when needed. The equipment rental company can also be used to buy all equipment and products needed by the operations to get better deals. Any management, operations, etc., are done out of the Parent LLC that owns the other three LLCs. If either businesses gets sued, the assets of the other LLC, the joint Equipment and the management assets are protected from that lawsuit.

If you operate a business that is based on permits you may want a separate LLC for each permit you own.

If you owned land under your businesses, you would want those in separate LLC’s. You can lose the business and start the next day because you still own a lot of the equipment and the land.

There are some negative issues with this type of set up.

The relationship between each LLC and the other LLC’s must be in writing with a proper agreement and proper accounting. That means there needs to be a management contract between the parent company and the different LLCs. There needs to be a rental agreement between the equipment company and the operating LLCs.


If you are an outfitter with this set up, and you transport your guests in vehicles you would want to add a transportation LLC. Your greatest liability is in moving guests to the activity location. Always keep your liabilities separate from your assets.

In this situation, you would need a lease agreement between the Operations and the Real Estate LLCs.


If you start to grow to the point that this gets unwieldy, you can consolidate and combine assets.


Your situation and growth are going to be different and will vary on how well you, and your CPA can work together. Other than increased accounting costs, you will achieve significant protection from any possible lawsuit by using multiple LLCs with little additional work.

If you have a good CPA, you can also have the LLC’s taxed differently to provide different benefits or income to you. You can take money out of some LLC’s as income, some as rent, others as an independent contractor based on how you initially set them up and how they are recognized by the IRS.

One final idea is you may have assets that are so valuable and small that you do not want to keep them in any LLC that could get sued. An example would be a federal permit or concession contract. You could keep those in your own name or in a different LLC that does nothing but leases those permits to your LLC’s. That way, no matter what, you can start again because you have a valid permit.

The final issue might be if you decided to take your company public someday. Contrary to popular belief, incorporating in Delaware is NOT the place to set up your business. Incorporating in Delaware until you have decided to go public has many negatives.

  • People think you are a bigger company, there fore they will sue for more money.
  • The cost of incorporating in Delaware is several times more expensive than most other states.
  • The yearly costs of maintain a corporation in Delaware is expensive.
  • You have to hire a statutory agent in Delaware who adds to your cost.
  • You have to follow Delaware law in running your company or corporation.
  • Your LLC or Corporation will have to follow Delaware laws so you may have to hire an additional attorney.

What if you want to go public someday? Then at that time, create a Delaware corporation. Have that corporation become the owner of all the other LLCs you have created. Now you are a Delaware corporation ready to go public and have delayed the cost of creating a Delaware corporation until you can afford it.


Save your money when you are starting out, start your LLC in the state where you are going to operate so you understand the state laws your LLC will be operating under.

What do you think? Leave a comment.

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Markovitz v. Cassenti, 56 N.E.3d 894, 90 Mass.App.Ct. 1102 (2016)

Markovitz v. Cassenti, 56 N.E.3d 894, 90 Mass.App.Ct. 1102 (2016)

90 Mass.App.Ct. 1102 (2016)

56 N.E.3d 894

Joanne Markovitz & another [ 1]

Christine Cassenti & another. [ 2]

15-P-1274

Appeals Court of Massachusetts

August 18, 2016

Editorial Note:

This decision has been referenced in an “Appeals Court of Massachusetts Summary Dispositions” table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).

Judgment affirmed.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In this negligence action arising out of the plaintiff’s injury following her fall off a horse during a group riding lesson at defendants’ Chrislar Farm, a Superior Court judge granted summary judgment for the defendants.[ 3] The plaintiff appealed.

Background.

On July 16, 2009, the plaintiff filled out and signed an application for riding lessons at Chrislar Farm. In that application, she wrote that she had six months of riding experience in 2001 and that she wanted to continue to learn to ride. The form contained a section entitled ” RELEASE,” which stated: ” I, the Club member/Student (or parent or guardian) recognize the inherent risks of injury involved in horseback riding/driving and being around horses generally, and in learning to ride/drive in particular. In taking lessons at CHRISLAR FARM or participating in Club activities, I assume any and all such risk of injury and further, I voluntarily release CHRISLAR FARM, its owners, instructors, employees and agents from any and all responsibility on account of any injury I (or my child or ward) may sustain for any reason while on the premises of CHRISLAR FARM or participating in Club activities, and I agree to indemnify and hold harmless CHRISLAR FARM, its owners, instructors, employees and agents on account of any such claim.”

The plaintiff signed the form on the signature line immediately below the release.[ 4]

Between July of 2009 and September of 2010, the plaintiff took thirty-minute private riding lessons on a regular basis. Between September, 2010, and January, 2011, the plaintiff took one-hour group riding lessons and walked, trotted, and cantered several different horses. On September 3, 2010, the defendants leased a horse named Jolee. Christine Cassenti had known this horse for a long time. The trainer conducting the lessons thought that the horse was ” sweet and did everything you asked her to do.”

The plaintiff first rode Jolee during a ” musical horses” exercise. She then rode Jolee during the next three one-hour group lessons on December 23, 2010, December 30, 2010, and January 6, 2011. At one point during the December 23, 2010, lesson, Jolee went from a trot into a canter and stayed in a circle formation instead of performing a figure eight. Following the instructions from the trainer, the plaintiff slowed down and stopped Jolee. The plaintiff rode Jolee without incident on December 30, 2010, and January 6, 2011.

On January 20, 2011, a year and one-half after the plaintiff began taking lessons at Chrislar Farm, the plaintiff rode Jolee for the fourth time. She noticed that Jolee briefly pinned her ears. After finishing a walk, the plaintiff began trotting Jolee. At one point, Jolee sped up into a faster trot and turned left, causing the plaintiff to lose her balance and fall.

Discussion.

Massachusetts courts have generally upheld release agreements immunizing defendants from future liability for their negligent acts, including in cases related to sports and recreation. See Lee v. Allied Sports Assocs., Inc., 349 Mass. 544, 550, 552, 209 N.E.2d 329 (1965) (spectator at pit area of speedway); Cormier v. Central Mass. Chapter of the Natl. Safety Council, 416 Mass. 286, 288-289, 620 N.E.2d 784 (1993) (beginner rider in motorcycle safety class); Sharon v. Newton, 437 Mass. 99, 105-107, 769 N.E.2d 738 (2002) (student at cheerleading practice). The challenges to releases from liability have regularly been resolved by summary judgment. See, e.g., Cormier, supra at 287; Sharon, supra at 103; Gonsalves v. Commonwealth, 27 Mass.App.Ct. 606, 606, 541 N.E.2d 366 (1989). In this case, we conclude that the release signed by the plaintiff, which the plaintiff has not challenged as unclear or ambiguous, barred her negligence claim.[ 5]

To avoid the preclusive effect of the release, the plaintiff argues that she was entitled to proceed under G. L. c. 128, § 2D( c )(1)(ii), inserted by St. 1992, c. 212, § 1, which provides one of the exceptions to the exemption from liability: ” Nothing in subsection (b) shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person: ” (1) . . . (ii) provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant . . . to safely manage the particular equine based on the participant’s representations of his ability.” [ 6]

Rather than creating a new duty in addition to those that already exist under our common law, as argued by the plaintiff, this subsection provides an exception to the overall bar to liability established by the statute, and allows a plaintiff to proceed with a negligence claim in certain limited circumstances. Because the statute does not create new duties on the part of the equine professional, the plaintiff cannot rely on it to avoid the preclusive effect of the release she signed. This case is distinguishable from Pinto v. Revere-Saugus Riding Academy, Inc., 74 Mass.App.Ct. 389, 395, 907 N.E.2d 259 (2009), which did not involve a release.

Where the release is dispositive of the plaintiff’s claim, we need not decide if there were genuine issues of material fact as to whether the defendants failed to make reasonable efforts to determine the plaintiff’s ability to safely manage Jolee.

Judgment affirmed.

Cohen, Agnes & Henry, JJ.[ 7].

———

Notes:

[1]Gabriel Markovitz. He claimed loss of consortium.

[2]Lawrence Cassenti.

[3]For simplicity, we will refer to Joanne Markovitz as the plaintiff.

[4]The form also contained the following: ” WARNING: Under Massachusetts law, an equine professional is not liable for any injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities, pursuant to Chapter 128, Section 2D of the General Laws.”

[5]” [W]hile a party may contract against liability for harm caused by its negligence, it may not do so with respect to its gross negligence.” Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass.App.Ct. 17, 19, 687 N.E.2d 1263 (1997). In a footnote in her brief, the plaintiff argues that it is a question of fact whether the trainer’s conduct amounted to gross negligence or wilful and wanton conduct. Here, viewing the summary judgment record in the light most favorable to the plaintiff, she cannot make out a case of gross negligence.

[6]The complaint contains a negligence count and a loss of consortium count. There is no mention of G. L. c. 128, § 2D.

[7]The panelists are listed in order of seniority.

———


Massachusetts Equine Liability Act

GENERAL LAWS OF MASSACHUSETTS

Part I. ADMINISTRATION OF THE GOVERNMENT

Title XIX. AGRICULTURE AND CONSERVATION

Chapter 128. AGRICULTURE

§ 128:2D. Liability of equine professionals and equine activity sponsors

(a)    For the purposes of this section, the following words shall have the following meanings:

“Engage in an equine activity”, riding, training, assisting in veterinary treatment of, driving, or being a passenger upon an equine, whether mounted or unmounted, visiting or touring or utilizing an equine facility as part of an organized event or activity, or assisting a participant or show management. The term “engage in an equine activity” shall not include being a spectator at an equine activity, except in cases where the spectator places himself in an unauthorized area or in immediate proximity to the equine activity.

“Equine”, a horse, pony, mule, or donkey.

“Equine activity”

(1)    equine shows, fairs, competitions, performances, or parades that involve any or all breeds of equines and any of the equine disciplines, including, but not limited to, dressage, hunter and jumper horse shows, grand prix jumping, three-day events, combined training, rodeos, riding, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding, gymkhana games, and hunting;

(2)    equine training or teaching activities or both;

(3)    boarding equines; including normal daily care thereof;

(4)    riding, inspecting, or evaluating by a purchaser or an agent an equine belonging to another, whether or not the owner has received some monetary consideration or other thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect, or evaluate the equine;

(5)    rides, trips, hunts or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor;

(6)    placing or replacing horseshoes or hoof trimming on an equine; and

(7)    providing or assisting in veterinary treatment.

“Equine activity sponsor”, an individual, group, club, partnership, or corporation, whether or not the sponsor is operating for profit or nonprofit, which sponsors, organizes, or provides the facilities for, an equine activity, including but not limited to: pony clubs, 4-H clubs, hunt clubs, riding clubs, school and college-sponsored classes, programs and activities, therapeutic riding programs, stable and farm owners and operators, instructors, and promoters of equine facilities, including but not limited to farms, stables, clubhouses, pony ride strings, fairs, and arenas at which the activity is held.

“Equine professional”, a person engaged for compensation:

(1)    in instructing a participant or renting to a participant an equine for the purpose of riding, driving or being a passenger upon the equine;

(2)    in renting equipment or tack to a participant;

(3)    to provide daily care of horses boarded at an equine facility; or

(4)    to train an equine.

“Inherent risks of equine activities”, dangers or conditions which are an integral part of equine activities, including but not limited to:

(1)    The propensity of equines 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;

(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 his ability.

“Participant”, any person, whether amateur or professional, who engages in an equine activity, whether or not a fee is paid to participate in such equine activity.

(b)    Except as provided in subsection (c), an equine activity sponsor, an equine professional, or any other person, which shall include a corporation or partnership, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities and, except as provided in said subsection (c), no participant nor participant’s representative shall make any claim against, maintain an action against, or recover from an equine activity sponsor, an equine professional, or any other person for injury, loss, damage, or death of the participant resulting from any of the inherent risks of equine activities.

(c)    This section shall not apply to the racing meetings as defined by section one of chapter one hundred and twenty-eight A.

Nothing in subsection (b) shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person:

(1)

(i)    provided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and such equipment or tack was faulty to the extent that it did cause the injury; or

(ii)    provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity, and determine the ability of the participant to safely manage the particular equine based on the participant’s representations of his ability;

(2)    owns, leases, rents, has authorized use of, or is otherwise in lawful possession and control of the land, or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known to the equine activity sponsor, equine professional, or person and for which warning signs, pursuant to subsection (d), have not been conspicuously posted;

(3)    commits an act of omission that constitutes willful or wanton disregard for the safety of the participant, and that act of omission caused the injury; or

(4)    intentionally injures the participant.

(d)

(1)    Every equine professional shall post and maintain signs which contain the warning notice specified in paragraph (2). Such signs shall be placed in a clearly visible location in the proximity of the equine activity. The warning notice specified in said paragraph (2) shall appear on the sign in black letters, with each letter to be a minimum of one inch in height. Every written contract entered into by an equine professional for the providing of professional services, instruction, or the rental of equipment or tack or an equine to a participant, whether or not the contract involves equine activities on or off the location or site of the equine professional’s business, shall contain in clearly readable print the warning notice specified in said paragraph (2).

(2)    The signs and contracts described in paragraph (1) shall contain the following notice:

Under Massachusetts 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, pursuant to section 2D of chapter 128 of the General Laws.

Cite as Mass. Gen. Laws ch. 128, § 2D


Release used to defend third party participants in horseback case applying Missouri’s law, not the main party to the contract.

Illinois resident sues Illinois’s resident for getting kicked by a horse in a riding area in Missouri. Area’s release included coverage for participants and protected horse owner from suit.

Perkinson v. Courson, 2018 IL App (4th) 170364, 97 N.E.3d 574, 2018 Ill. App. LEXIS 120, 420 Ill. Dec. 692

State: Illinois, Appellate Court of Illinois, Fourth District Applying Missouri law

Plaintiff: Deanna L. Perkinson

Defendant: Sarah Courson

Plaintiff Claims: Violation of the Animal Control Act and Negligence

Defendant Defenses: Release (neither party brought up the Missouri Equine Liability Act)

Holding: For the Defendant

Year: 2018

Summary

The term “other participants,” was used in a release signed to access land to ride horses to defend the owner of a horse that kicked another horse owner. The term was sufficient to include the rider in the protection the release afforded. Neither party argued the Equine Liability Act of Missouri where the incident took place.

Facts

Plaintiff testified she engaged in horseback riding on and off since the age of five. She and her husband owned nine horses and were part of a group of friends that rode horses together. Plaintiff estimated that 20 to 25 people were in their group, including defendant. She further estimated that she and defendant went horseback riding together approximately five or six times a year. Within plaintiff’s group of horseback riding friends, there were people that plaintiff was closer to and whom she would talk with about going on horseback riding trips. Plaintiff testified she was not close friends with defendant. She denied that they spent time socially at one another’s homes or that they participated in any activities together other than horseback riding.

In August 2014, individuals from plaintiff’s horseback riding group went on a trip to Cross Country Trail Ride, LLC (Cross Country), in Eminence, Missouri. According to plaintiff, each year, Cross Country organized a trail ride event during Labor Day weekend. She had previously attended the event approximately six times. Plaintiff testified Cross Country provided its paying guests with a campsite, stalls for horses, entertainment, and food.

On August 28, 2014, plaintiff arrived at Cross Country with her husband, daughter, and stepdaughter. The family took four of their own horses and met up with other individuals from plaintiff’s group of friends. Plaintiff stated she had not known whether defendant would be on the trip but saw defendant at Cross Country on the evening of her arrival.

Plaintiff acknowledged signing certain documents upon her arrival at Cross Country on August 28, 2014. She identified her signature on forms that were submitted as exhibits during her deposition and recalled signing similar forms during her previous visits to Cross Country. Plaintiff acknowledged that part of the form she signed was titled “Release of Liability” and instructed her to read before signing; however, plaintiff testified she did not read the form because she had driven a long distance to get to Cross Country and believed it “was just to register.” Plaintiff admitted signing similar forms on behalf of her daughter and stepdaughter.

Plaintiff testified that prior to signing the Cross Country forms, she understood that there was a risk of injury when participating in horseback riding events, including falling off a horse or being kicked. Despite that risk of injury, she participated anyway. Further, plaintiff testified she would have proceeded with the trail ride at Cross Country if she had read the form she signed, which included a warning about the risk of injury when participating in horseback riding events and statements indicating she fully assumed the risks of participation. Plaintiff acknowledged that the form she signed used the phrase “other participants.” She agreed that defendant would have been “another participant” in the activities at Cross Country.

On August 29, 2014, plaintiff, her family, and members of her group intended to take a six-hour trail ride on one of the “identified trails” at Cross Country. Plaintiff was riding a horse named Chester, and defendant was riding a horse named Little Bit. Plaintiff did not recall ever previously being around Little Bit. Further, she acknowledged consuming beer during the trail ride. Plaintiff stated she also observed that defendant was consuming alcohol and believed defendant was intoxicated. During a break on the trail ride, defendant told plaintiff that Little Bit “had kicked [defendant’s] husband while her husband was in the pasture.” She did not remember defendant telling her when the kick occurred or that the horse was in heat at the time. Plaintiff stated she did not notice anything concerning about Little Bit’s behavior while horseback riding on the day of the incident.

At some point during the trail ride, plaintiff and defendant began riding next to one another and were talking. Plaintiff did not recall who approached whom or how long they rode next to each other. As they were riding together down a hill, defendant’s horse kicked out with both of its rear legs and struck plaintiff on her right shin. Plaintiff did not know what caused the horse to kick. Following the kick, plaintiff had to be helped off her horse, and an ambulance was called to the scene. Plaintiff stated she had a broken bone in her shin and, ultimately, underwent two surgeries.

Plaintiff testified that during the trail ride defendant should have put a red ribbon on her horse’s tail to warn others that her horse was known to kick. She asserted, however, that the presence of a red ribbon would not have altered her own behavior. Additionally, plaintiff stated she returned to Cross Country for horseback riding after the August 2014 incident with defendant’s horse. Although she did not plan on attending Cross Country’s Labor Day event in 2016, she did plan to go to another location in Missouri for a Labor Day trail ride.

Analysis: making sense of the law based on these facts.

This is a complicated case because it was started in Illinois after the accident happened in Missouri. Consequently, the issues that support the outdoor recreation industry are woven around the other issues such as where the lawsuit should be and what law should be applied to the case.

The court was an Illinois court and the defendant, and the plaintiffs were Illinois’s residents. However, because the accident occurred in Missouri, the court applied Missouri’s law to the case.

The court first looked at Missouri’s law and the requirements to prove negligence.

To obtain relief in a negligence cause of action, “‘the plaintiff must establish that (1) the defendant had a duty to the plaintiff; (2) the defendant failed to perform that duty; and (3) the defendant’s breach was the proximate cause of the plaintiff’s injury.'”

Then the assumption of the risk doctrine was reviewed as applied in Missouri.

Under the “assumption of the risk doctrine” a person who “voluntarily consents to accept the danger of a known and appreciated risk may not sue another for failing to protect him from it.”

A document showing the plaintiff assumed the risks or explicitly accepted the risks is called an express assumption of the risk document in Missouri (and most other states).

An express assumption of risk is the simplest application of the doctrine and “recognizes that, when a plaintiff makes an express statement that he is voluntarily accepting a specified risk, the plaintiff is barred from recovering damages for an injury resulting from that risk.” An express assumption of risk “most often involves a written waiver or release by the would-be plaintiff.” Further, “in an ‘express assumption of the risk’ case, the plaintiff’s consent relieves the defendant of any duty to protect the plaintiff from injury.”

The Missouri law concerning releases was analyzed.

Although exculpatory clauses in contracts releasing an individual from his or her own future negligence are disfavored, they are not prohibited as against public policy.” “[C]ontracts exonerating a party from acts of future negligence are to be ‘strictly construed against the party claiming the benefit of the contract, and clear and explicit language in the contract is required to absolve a person from such liability.'” Missouri law requires “clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence,” and “[g]eneral language will not suffice.” “‘The words “negligence” or “fault” or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs. There must be no doubt that a reasonable person agreeing to an exculpatory clause actually understands what future claims he or she is waiving.’

In this case, the release was not signed because of a legal relationship between the parties, but was signed as part of accessing the land where the accident occurred. Meaning both parties signed the release to ride on the land. Consequently, the argument centered around whether that release was written to protect parties such as the defendant in this case. Whether the release signed by the plaintiff to ride on the land of the landowner provided protection to the owner of the horse that kicked her.

Additionally, [o]nly parties to a contract and any third-party beneficiaries of a contract have standing to enforce that contract.” To be deemed a third-party beneficiary, the terms of the contract must clearly express intent to benefit the third party or an identifiable class of which the third party is a member. When an express declaration of intent is lacking, a strong presumption exists “‘that the third party is not a beneficiary and that the parties contracted to benefit only themselves.'”

As in most other states, to understand a contract you must determine the effect intended by the parties to be given to the contract. Each clause should be read in the context of the entire contract, not as individual issues. The information within the “four corners” of the contract is the only information that can be reviewed by a court in determining the meaning of a contract, unless the contract is ambiguous, then outside information can be brought into to define the ambiguous section.

A contract is ambiguous when “duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.”

The language of the release referred to “other participants.” The defendant argued that she was the intended beneficiary of this language. If the defendant was found to be the intended beneficiary, then the release would stop the claims of the plaintiff. The term other participants usually follows the name of the party wanting the release to be signed. In this case, the landowner would have their name as the party to be protected and the clause and other participants followed. Did the term have legal meaning and apply to the defendant or was the term just dicta, additional language in the agreement that had no meaning.

 

 

 

The plaintiff argued that she did not know what she was signing and therefore, could not have intended the release to benefit the defendant. The plaintiff also argued the phrase “other participants” was ambiguous.

However, the court disagreed and found it covered the defendant and was not a catch-all phrase. The court found the defendant was a participant within the meaning of the words and the language of the release.

The final failure of the plaintiff’s argument fell when the court brought up that in her own deposition, she characterized the defendant as another participant in the trail ride.

The next argument, is another argument that is surfacing in plaintiff’s arguments across the US. The plaintiff argued the release should not apply because it purports to relieve liability for more than simple negligence. Meaning the release was written to cover intentional torts, gross negligence and other activities of the public interest.

However, the court did not agree with that argument because the release did not refer to any additional legal theories other than negligence. The release only used the term negligence and did not sue any language that extended that term to a greater definition.

The court also quoted a Missouri Supreme Court decision that held that the plaintiff could not get a release thrown out by arguing it covered gross negligence. Missouri does not recognize gross negligence. Since it does not exist under Missouri’s law, it could not be used to void a release.

In DeCormier v. Harley-Davidson Motor Co. Group, Inc., the Missouri Supreme Court stated that it would “enforce exculpatory agreements to protect a party from liability for their own negligence” and a plaintiff could not “avoid this rule by alleging [a defendant was] grossly negligent because Missouri’s courts do not recognize degrees of negligence at common law.” Thus, it rejected the precise argument plaintiff has raised in this case both before the trial court and on appeal.

Nor does Missouri recognize a cause of action for recklessness.

The next argument was the release was not clear because it was mixed in with another form. The top part of the form was labeled a registration form, and the bottom part was a release.

The court recognized this but found the release part of the form was labeled Release of Liability – Read Before Signing and separated by a dotted line from the top of the form. The significant language in the release was also capitalized for emphasis.

The court held with the trial court and found the release signed by the parties to ride on the property protected the defendant in this case.

 

 

 

So Now What?

This is the first case I have found where a release was used to protect a third party from a lawsuit. I have long argued that this should be the case. Even though the release was signed for a land owner, any litigation is going to cost many parties money. The decision does not say, however, in cases like this many times, the landowner and other participants in the ride are deposed, and as such they lose work and possibly incur legal fees for the depositions.

Having the release be part of a registration form was an issue. Eliminate the argument by the plaintiff and make it a separate form. If you need more information than what is normally required on a release collect it a different way or at the end.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

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By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Do you have coverage?

If you are thinking about opening for the summer, before you stock up on PPE, you might check to see if you have insurance coverage. If you get sued by a guest for catching Covid-19 at your business or operation the legal fees to win your case can exceed $100,000.

Most insurance policies exclude coverage for pandemics.

The issue is not whether or not a person can win a lawsuit if they claim they got sick at your business. The issue is, do you have protection to pay for the attorney fees, and costs needed to fight the lawsuit. A two-week trial that is four years in the future will cost you $100,000.00 at a minimum.

At the present time, you cannot buy coverage for Covid 19.

Most general liability (GL) policies exclude pandemics as a claim that is not covered. Those policies that do not have a specific pandemic exclusion are saying the claims are excluded under the pollutant exclusions.

Consequently, you probably do not have coverage. That is going to be a major factor in determining if you can open for the season, whether or not you have the resources to fight any possible claims.

Worker’s Compensation Policies in many states are excluding coverage for employees who catch the virus.

What if your employee contracts the virus and claims, he got it at work. Does your worker’s compensation policy provide coverage for the employee or a defense for you? With day operations, it will be difficult to prove the employee contacted the coverage while working. However, if you run multi-day trips where the employees and patrons will be separated from society for days, and one other person arrives on the trip with the virus. The chances increase that your employee caught the virus at work.

If that occurs and your carrier provides no coverage, it does not let you off the hook for the employees lost wages and medical bills.

Again, in most states there is no coverage for worker’s compensation claims based on pandemics.

Find out now what coverages you have. If your broker/agent says you are covered, get that in writing or in an email and save it. It could be worth a lot of money in the future.

For additional articles about this issue see:

Will general liability insurance respond to COVID-19 claims?

Commercial General Liability Insurance and COVID-19

‘Wild west’: Youth sports providers weigh liability risks

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn




If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

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Email: Rec-law@recreation-law.com

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By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,



If you have too many cases of Covid-19 at your camp or recreation program will the state force you to quarantine in place?

Meaning will the state not let anyone leave until the quarantine is over?

This game was developed an epidemiologist at U Wisc. https://apl.wisc.edu/beta-testing/zombie-unicorn-outbreak

I started playing it to understand how a quarantine might work, etc. What caught me off guard is playing with the variables dramatically changes the outcome.

Example:

Figure a camp has a low percentage of at-risk people. Based on the ACA model you would want the kids to stick together. Cabins stick together and do not interact with other cabins. However, that model had a 10 times greater infection rate over the never get together model. Obviously, camp would never be neither, so choose mostly and if one carrier arrives in camp at the end of the first week, you have eight infected kids.

What happens if the State Quarantines a Camp?

The next issue that no one has thought about is that I can find in my searching is what is the state going to do if a camp has X cases. Meaning if a camp sends X kids home in one week, what is the state response? At what number of kids going home with Covid-19, will the state quarantine the camp. Not let anyone leave? What happens when a camp is quarantined?

How far reaching will the quarantine go. Will kids be confined to cabins for two weeks like people were confined to rooms on the cruise ships?

What will the results of a quarantine like that be?

Will food be delivered to cabins by kitchen staff? What about laundry? What about exercise? Maybe you can designate times and locations for a cabin to do things?

Think about dealing with parents who are going to insist that they take their kids home? However, I think the state, which will be at the front gate will get to deal with them.

Or will the state just empty the camp and send everyone’s home? I can’t see most states doing this because they will just be spreading the virus out in the community.

Worker’s Compensation

That then leads into the next issue and tomorrow’s discussion, insurance. In this case, Worker’s Compensation. Camp staff will be able to prove they got the quarantine at camp while working. You need to make sure you have coverage for that. See tomorrows article If you are thinking about opening for the summer, before you stock up on PPE, you might check to see if you have insurance coverage. If you get sued by a guest for catching Covid-19 at your business or operation the legal fees to win your case can exceed $100,000.

(We won’t even discuss paying camp staff that can’t leave camp?)

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn




If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:
www.recreation-law.com

Mobile Site: http://m.recreation-law.com

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,



Pennsylvania No Duty Rule stops lawsuit by underage rider.

A minor with 12 years of riding and competing on dirt bikes could not sue the commercial operation after crashing on the course.

Hawkins v. Switchback MX, LLC, 339 F. Supp. 3d 543, 2018 U.S. Dist. LEXIS 155249

State: Pennsylvania; United States District Court for the Western District of Pennsylvania

Plaintiff: Kameron Hawkins and Amber Lynn Durbin

Defendant: Switchback MX, LLC d/b/a Switchback Raceway

Plaintiff Claims: negligence and negligence per se

Defendant Defenses: Pennsylvania No Duty Rule (Assumption of the Risk)

Holding: For the Defendant

Year: 2019

Summary

The Pennsylvania Comparative Negligence Act specifically identifies downhill skiing and off-road riding as exempt from the comparative negligence act. In both those sports, the participant assumes the risk of their injuries due from the inherent risks of the sports.

Facts

Hawkins [plaintiff] began riding a dirt bike at the age of five or six.. He learned the ins and outs of dirt bike [motorized] riding from his father, who raced dirt bikes and often brought Hawkins to spectate at off-road races Hawkins began participating in races himself at “a young age” and even secured sponsorships. He testified that he was aware of the dangers of riding dirt bikes from early on in his experience, that his father instructed him to avoid jumps that “you don’t think you can handle,” and that he wore protective gear to guard against the risk of injury. He acknowledges that dirt bike riding is “a dangerous sport,” that “you could get hurt” on a dirt bike, and that a fall could cause “injury . . . or even death.” Despite his protective measures, Hawkins has suffered injuries in the past riding a dirt bike. Hawkins had been to Switchback on three prior occasions: once as a spectator, once as pit crew member for his friend Jonathan Franjko, and once as a rider.

The events preceding Hawkins’ accident on January 9, 2016 are disputed by the parties and not fully explored in the Rule 56 record. According to Hawkins, he arrived at Switchback with several friends and met with Brader, who asked them whether they had been to Switchback before. Hawkins relayed that, after the group responded affirmatively, Brader told them to sign in, accepted their payment, and provided them with wristbands to attach to their helmets to indicate they had been authorized to ride. He denied ever being asked to present identification and did not recall being asked his age.

Switchback’s account diverges considerably. According to Brader, Hawkins entered the indoor facility on January 9, 2016 with Franjko, who had a Switchback membership card. Brader did not recognize Hawkins and thought he appeared to be under the age of 18. Brader reported that he told Hawkins he needed to “take home a waiver and fill it out” and that he had to “bring [the waiver] out next time and join us another day.” Brader does not recall Hawkins signing in on Switchback’s sign-in sheet for January 9, 2016, but testified that he told Hawkins he “could not ride” without waiver and consent forms on file. Brader also testified that he does not know how Hawkins ultimately came to access the track on January 9, 2016. It is undisputed that Durbin did not execute a parental consent form allowing Hawkins to participate in dirt bike riding at Switchback.

On January 9, 2016, Hawkins somehow gained access Switchback’s indoor dirt bike racing track. Hawkins “attempted a jump, without enough speed,” on one of the track’s “table top jumps,” which caused the frame of his dirt bike to hit the ground and “flip [the] bike and Hawkins over.” According to Brader, it was only after this wreck that he became aware that Hawkins had accessed the track. Brader testified that Hawkins “didn’t look right” and that he offered to call an ambulance. Franjko confirmed that Brader asked “a couple times” whether Hawkins wanted medical attention. Hawkins left Switchback’s facility with his friends without receiving medical attention. Hawkins was subsequently treated for injuries including a lacerated kidney and pancreas, trauma to his spleen, a broken hip, a concussion, and post-concussion syndrome. The accident occurred four months before Hawkins’ 18th birthday.

Analysis: making sense of the law based on these facts.

The court first reviewed the requirements to prove a negligence claim in Pennsylvania.

Under Pennsylvania law, a plaintiff must prove the “four basic elements of duty, breach, causation, and damages. That is, plaintiffs must prove: (1) the existence of a legal duty requiring a certain standard of conduct; (2) breach of that duty by the defendant; (3) a causal connection between defendant’s breach and plaintiffs’ injury; and (4) actual loss or damages.

The court then reviewed the claims of the plaintiff as whether the defendant owed a duty to the minor plaintiff because the plaintiff assumed the risk of his injuries.

The defendant’s position was it had no duty to protect the plaintiff because of the inherent risk set out in the “no duty” rule in the Pennsylvania Comparative Negligence Act.

The plaintiff’s response to that argument was the negligence of the defendant was in allowing the plaintiff to access the track.

The court looked at the conflicting arguments by next reviewing assumption of the risk as applied in Pennsylvania. The Pennsylvania Comparative Negligence Act eliminated the defense of assumption of the risk in all areas except two when it enacted the statute. The two exemptions were downhill skiing and off-road vehicle riding. Meaning in those two situations, the no-duty rule retained the defense of assumption of the risk. The defendant has no duty to protect the plaintiff from the inherent risks of the sport of downhill skiing or off-road riding.

The court then reviewed whether assumption of the risk applied to minors. That is “the court must ask what the “particular minor plaintiff knows, sees, hears, comprehends, and appreciates” with respect to the risk involved.”

Under Pennsylvania law, to prove assumption:

…the court must find that the plaintiff (1) “consciously appreciated the risk” attending the activity, (2) assumed the risk of injury by nonetheless engaging in the activity, and (3) sustained an injury that was “the same risk of injury that was appreciated and assumed.”

A factor in determining whether or not a minor assumed the risk is the minor’s age and experience. In this case that worked for the defendant because the minor was only four months from turning eighteen at the time of the accident and had been riding for twelve years.

The court then defined inherent risk as a risk “which “cannot be removed without altering the fundamental nature” of the activity.”

The court broke down the inherent risks of off-road riding as identified in the statute, to see if the plaintiff’s injury landing on a table-top jump was inherent to the sport.

Common sense dictates that the risk of a fall or collision that does not involve another rider or object is equally inherent in the activity. Indeed, Hawkins’ own experience bears this out—he testified that his accident on January 9, 2016, was not his first; that he knew from personal experience that attempting jumps carried a certain risk; and that he wore protective gear in an attempt to mitigate that risk. We find that the risk of suffering serious injury when attempting a dirt bike jump is one which “cannot be removed without altering the fundamental nature” of dirt bike riding and is thus inherent in the activity.

We further conclude that reasonable persons could not debate whether Hawkins appreciated and knowingly assumed that risk. Hawkins was nearly 18 years old at the time of the accident and had been riding dirt bikes for more than 12 years. He was a vastly experienced rider. He was well aware that dirt bike riding carried the risk of serious injury and even death. Indeed, Hawkins acknowledged that a dirt bike presents a certain danger “even when the bike’s on the ground.” Given this unequivocal record testimony, we have little difficulty finding that this particular rider—plaintiff Kameron Hawkins—knew, appreciated, and assumed the risks attending off-road dirt bike riding.

For these reasons, the court found the minor, because of his age and experience assumed the risk of his injuries, and the defendant was not liable for those injuries because of the Pennsylvania Comparative Negligence Act.

So Now What?

Assumption of the risk in most states is the only defense you have to injuries a minor receives. Unless your state has a specific statute that identifies your activity as one with inherent risk a person assumes, you need to prove the minor in your case assumed those risks.

To do that you must maximize all the avenues to educate and document that education of a minor, in fact, all participants in your activity or business.

Post videos of your activity showing crashes, flips and falls on your website and social media. Point out possible risks on your site and social media. Then confirm in some way that the minor observed that information.

You can go so far as to ask the minor and/or the minor’s parents of their experience in the sport. Have they participated in the sport before, seen it on TV, participated for how many years, etc.

A release is your best defense to a lawsuit, but for minors, in those states where releases are not valid and or minors, assumption of the risk is your best and sometimes only defense.

For more information see:

States that allow a parent to sign away a minor’s right to sue

States that do not Support the Use of a Release

What do you think? Leave a comment.

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Perkinson v. Courson, 2018 IL App (4th) 170364, 97 N.E.3d 574, 2018 Ill. App. LEXIS 120, 420 Ill. Dec. 692

Perkinson v. Courson, 2018 IL App (4th) 170364, 97 N.E.3d 574, 2018 Ill. App. LEXIS 120, 420 Ill. Dec. 692

Appellate Court of Illinois, Fourth District

March 12, 2018, Filed

NO. 4-17-0364

DEANNA L. PERKINSON, Plaintiff-Appellant, v. SARAH COURSON, Defendant-Appellee.

Prior History:  [***1] Appeal from Circuit Court of Jersey County. No. 15L31. Honorable Eric S. Pistorius, Judge Presiding.

Disposition: Affirmed.

Counsel: Timothy J. Chartrand, of Williamson, Webster, Falb & Glisson, of Alton, for appellant.

Amy L. Jackson and Samantha Dudzinski, of Rammelkamp Bradney, P.C., of Jacksonville, for appellee.

Judges: PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Steigmann and Turner concurred in the judgment and opinion.

Opinion by: HARRIS

Opinion

 [****698]  [**580]  PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion.

Justices Steigmann and Turner concurred in the judgment and opinion.

OPINION

 [*P1]  In August 2014, plaintiff, Deanna L. Perkinson, was kicked by a horse and injured. In December 2015, she filed a two-count complaint against the horse’s owner, defendant Sarah Courson, alleging a violation of the Illinois Animal Control Act (510 ILCS 5/1 to 35 (West 2014)) (count I) and negligence (count II). Although plaintiff and defendant are Illinois residents, the incident at issue occurred in Missouri and the trial court determined Missouri law controlled the conflict. Following that determination, the court granted defendant’s motion to dismiss count I of plaintiff’s complaint and her motion for summary judgment as to count II. Plaintiff appeals, arguing the court erred in (1) ruling on defendant’s motion to dismiss count I of the complaint because the motion was brought pursuant to the [***2]  wrong statutory section, (2) finding Missouri law applied to the parties’ controversy, and (3) finding defendant was entitled to summary judgment on count II of the complaint. We affirm.

[*P2]  I. BACKGROUND

 [*P3]  In her December 2015 complaint, plaintiff alleged that both she and defendant were Illinois residents. On August 29, 2014, they were horseback riding alongside one another on a public trail when plaintiff was kicked by the horse defendant was riding, which defendant owned. Plaintiff maintained she sustained permanent and disfiguring injuries to her right leg as a result of being kicked. In connection with count I of her complaint, alleging a violation of the Animal Control Act, plaintiff also asserted that at the time and place of her injury, she did not provoke defendant’s horse, had been conducting herself peaceably, and was in a location where she had a legal right to be. Relative to count II, alleging negligence, plaintiff asserted defendant owed her a duty of care but breached that duty by (1) failing to warn plaintiff of the horse’s violent propensity to kick others, (2) failing to properly train the  [**581]   [****699]  horse, (3) riding too close to plaintiff and plaintiff’s horse when knowing that [***3]  her horse had a violent propensity to kick others, and (4) riding her horse contrary to industry and practice norms. Plaintiff further alleged that as a direct and proximate result of defendant’s negligence, she was kicked by defendant’s horse without provocation and injured.

 [*P4]  In January 2016, defendant filed a motion to dismiss plaintiff’s complaint. She first sought dismissal of count I pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2014)). Specifically, defendant argued that the incident at issue occurred while the parties were on a horseback riding trip in Eminence, Missouri, and, as a result, Missouri law governed “the pending litigation.” She further maintained that because count I of plaintiff’s complaint was based entirely on Illinois statutory law, that count necessarily failed to state a claim upon which any relief could be granted and had to be dismissed. Defendant further sought dismissal of both count I and count II under section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2014)). She argued plaintiff signed a “‘Release of Liability'” (Release) prior to horseback riding, which, under Missouri law, barred her claims.

 [*P5]  In February 2016, plaintiff responded to defendant’s motion, arguing Illinois [***4]  law applied to both counts of her complaint. Further, she argued the Release referenced by defendant should be disregarded because defendant failed to attach a sworn or certified copy of the Release to her motion to dismiss. Plaintiff alternatively argued the Release was against Illinois public policy, vague, ambiguous, overbroad, and could not be relied upon by defendant who was “a non-party outside of the Release.”

 [*P6]  In March 2016, the trial court conducted a hearing on defendant’s motion to dismiss. At the hearing, defendant withdrew the portion of her motion that sought dismissal pursuant to section 2-619 and proceeded only with the portion of her motion that sought dismissal of count I under section 2-615. Ultimately, the court granted defendant’s motion to dismiss count I, holding as follows:

“[I]n conflict of law cases the courts must determine which forum has the most significant contacts with the litigation. Further, there is a legal presumption that the law of the state where the injury occurred applies in determining the rights and liabilities of the parties unless Illinois has a more significant relation to the conflict. This court finds that *** plaintiff has failed to establish that Illinois has [***5]  a more significant relationship to the conflict. As such, Count I, which is based on the [Illinois] Animal Control Act, is hereby dismissed.”

 [*P7]  In April 2016, plaintiff filed a motion to reconsider the trial court’s ruling as to count I of her complaint. She argued the court erred in its application of existing law as the case authority cited by both parties heavily favored application of Illinois law rather than Missouri law. Additionally, plaintiff maintained the court erred by placing the burden on her to establish that Illinois had a more significant relationship to the matter, rather than on defendant, the moving party.

 [*P8]  In June 2016, a hearing was conducted on plaintiff’s motion to reconsider. In its written order, the trial court stated it had considered both plaintiff’s motion and defendant’s response and “noted, for the first time,” that the question of which state’s law to apply involved factual determinations regarding the nature of the parties’ relationship, the planning of their trip to Missouri, and the training of defendant’s horse while in Illinois. The court  [**582]   [****700]  pointed out that no affidavits or deposition testimony had been presented by the parties and elected to “keep plaintiff’s [***6]  Motion to Reconsider under advisement until the[ ] facts or issues [could] be fleshed out during the discovery process.”

 [*P9]  In September 2016, plaintiff filed a supplemental brief to her motion to reconsider, and defendant filed a supplemental response. Plaintiff attached the depositions of both parties to her filing.

 [*P10]  During her deposition, plaintiff testified she resided in Dow, Illinois, both at the time of the incident at issue and at the time of her deposition. She had known defendant since 2003. They met through mutual friends and were brought together through the activity of horseback riding. Plaintiff and her husband had also purchased defendant’s house.

 [*P11]  Plaintiff testified she engaged in horseback riding on and off since the age of five. She and her husband owned nine horses and were part of a group of friends that rode horses together. Plaintiff estimated that 20 to 25 people were in their group, including defendant. She further estimated that she and defendant went horseback riding together approximately five or six times a year. Within plaintiff’s group of horseback riding friends, there were people that plaintiff was closer to and whom she would talk with about going on horseback [***7]  riding trips. Plaintiff testified she was not close friends with defendant. She denied that they spent time socially at one another’s homes or that they participated in any activities together other than horseback riding.

 [*P12]  On examination by her own counsel, plaintiff testified that prior to August 2014, she considered defendant her friend. They had ridden horses together in Illinois and “hung out” at the home of a mutual friend. Also, they had each other’s telephone numbers and were Facebook friends.

 [*P13]  In August 2014, individuals from plaintiff’s horseback riding group went on a trip to Cross Country Trail Ride, LLC (Cross Country), in Eminence, Missouri. According to plaintiff, each year, Cross Country organized a trail ride event during Labor Day weekend. She had previously attended the event approximately six times. Plaintiff testified Cross Country provided its paying guests with a campsite, stalls for horses, entertainment, and food.

[*P14]  On August 28, 2014, plaintiff arrived at Cross Country with her husband, daughter, and stepdaughter. The family took four of their own horses and met up with other individuals from plaintiff’s group of friends. Plaintiff stated she had not known whether [***8]  defendant would be on the trip but saw defendant at Cross Country on the evening of her arrival.

[*P15]  Plaintiff acknowledged signing certain documents upon her arrival at Cross Country on August 28, 2014. She identified her signature on forms that were submitted as exhibits during her deposition and recalled signing similar forms during her previous visits to Cross Country. Plaintiff acknowledged that part of the form she signed was titled “Release of Liability” and instructed her to read before signing; however, plaintiff testified she did not read the form because she had driven a long distance to get to Cross Country and believed it “was just to register.” Plaintiff admitted signing similar forms on behalf of her daughter and stepdaughter.

[*P16]  Plaintiff testified that prior to signing the Cross Country forms, she understood that there was a risk of injury when participating in horseback riding events, including falling off a horse or being kicked. Despite that risk of injury, she participated anyway. Further, plaintiff testified she would have proceeded with the trail ride at Cross Country if she had read the form she signed, which included a  [**583]   [****701]  warning about the risk of injury when participating [***9]  in horseback riding events and statements indicating she fully assumed the risks of participation. Plaintiff acknowledged that the form she signed used the phrase “other participants.” She agreed that defendant would have been “another participant” in the activities at Cross Country.

[*P17]  On August 29, 2014, plaintiff, her family, and members of her group intended to take a six-hour trail ride on one of the “identified trails” at Cross Country. Plaintiff was riding a horse named Chester, and defendant was riding a horse named Little Bit. Plaintiff did not recall ever previously being around Little Bit. Further, she acknowledged consuming beer during the trail ride. Plaintiff stated she also observed that defendant was consuming alcohol and believed defendant was intoxicated. During a break on the trail ride, defendant told plaintiff that Little Bit “had kicked [defendant’s] husband while her husband was in the pasture.” She did not remember defendant telling her when the kick occurred or that the horse was in heat at the time. Plaintiff stated she did not notice anything concerning about Little Bit’s behavior while horseback riding on the day of the incident.

[*P18]  At some point during the trail [***10]  ride, plaintiff and defendant began riding next to one another and were talking. Plaintiff did not recall who approached whom or how long they rode next to each other. As they were riding together down a hill, defendant’s horse kicked out with both of its rear legs and struck plaintiff on her right shin. Plaintiff did not know what caused the horse to kick. Following the kick, plaintiff had to be helped off her horse, and an ambulance was called to the scene. Plaintiff stated she had a broken bone in her shin and, ultimately, underwent two surgeries.

[*P19]  Plaintiff testified that during the trail ride defendant should have put a red ribbon on her horse’s tail to warn others that her horse was known to kick. She asserted, however, that the presence of a red ribbon would not have altered her own behavior. Additionally, plaintiff stated she returned to Cross Country for horseback riding after the August 2014 incident with defendant’s horse. Although she did not plan on attending Cross Country’s Labor Day event in 2016, she did plan to go to another location in Missouri for a Labor Day trail ride.

 [*P20]  As stated, the record also contains defendant’s deposition. Defendant testified she resided in [***11]  Farina, Illinois, with her husband. She met plaintiff in 2003 through her former sister-in-law who was friends with plaintiff. Also, in 2013, plaintiff purchased defendant’s house in Dow, Illinois. Defendant testified she advertised the sale of her house on Facebook and plaintiff “friended [her] on Facebook” and contacted her by telephone about the house. Defendant noted her phone number was in her advertisement. She was not aware of plaintiff having her phone number prior to the time she advertised the sale of her house. Defendant considered plaintiff to be an acquaintance rather than a friend, noting they only socialized through mutual friends and always went horseback riding in a group setting. She estimated that she went horseback riding with plaintiff twice a year since 2006 but did not recall whether all of those occasions were in Illinois.

 [*P21]  Defendant testified she grew up around horses and regularly went horseback riding. Since 2003, she owned 11 different horses. Defendant stated someone else would train her horses to ride and then she “worked the tweaks out.” Specifically, defendant stated she trained her horses, including Little Bit, to “neck rein,”  [**584]   [****702]  not to ride too close to [***12]  other horses, and in “ground manners.”

 [*P22]  In 2012, defendant purchased Little Bit from one of the members of her horseback riding group of friends. She kept Little Bit at her farm in Farina, Illinois. In 2013, Little Bit was trained for 30 days in Kampsville, Illinois, by an individual named Samuel Kaufman. Thereafter, defendant took over. Defendant testified her training with Little Bit included going on several trail rides with other horses. She estimated Little Bit went on six trail rides before the Cross Country trail ride in August 2014. Defendant stated that, prior to August 2014, Little Bit kicked at another horse in a pasture while she was in heat. During that incident, Little Bit made contact with defendant’s husband who “was in the way.” Defendant denied that any other kicking incidents occurred prior to August 2014.

 [*P23]  Defendant testified she had been to Cross Country eight times prior to August 2014. She always went to Cross Country with a group. Defendant recalled seeing plaintiff at Cross Country prior to 2014 but did not recall if they rode horses together. In August 2014, defendant was at Cross Country with her husband, mother, and father. During the August 29, 2014, trail [***13]  ride, defendant rode Little Bit, who had not previously been on a trail ride at Cross Country.

 [*P24]  Defendant acknowledged drinking alcohol on the trail ride but stated she did not know if she was intoxicated. She estimated she had less than six beers, the amount she typically packed in her cooler. Defendant denied noticing anything peculiar about Little Bit during the trail ride. However, she asserted she told all of the other horseback riders that she would stay toward the back of the group because Little Bit was young, she did not know whether the horse would kick, and defendant did not totally trust the horse. Defendant testified she trusted Little Bit enough to ride her with other people but “didn’t trust that she maybe wouldn’t kick.”

 [*P25]  Defendant described the incident involving plaintiff, stating they were coming down a hill side by side when Little Bit “trotted up ahead.” She then heard plaintiff yell out and observed plaintiff reaching for her leg. Defendant estimated that she and plaintiff had been a little more than arm’s distance apart and were having a conversation before the incident. She stated she did not know why Little Bit kicked. In the fall of 2014, defendant sold Little [***14]  Bit. She testified she was not comfortable with the horse, noting an occasion when Little Bit bucked her off after being “spooked” by cattle.

 [*P26]  In October 2016, the trial court entered a written order finding no reason to reconsider its previous ruling and denying plaintiff’s motion to reconsider. In so holding, the court noted it reviewed its prior decision and the parties’ additional arguments. It stated the additional facts presented to it only further supported its decision to grant defendant’s motion to dismiss.

 [*P27]  In February 2017, defendant filed a motion for summary judgment as to count II of plaintiff’s complaint, alleging negligence, as well as a memorandum of law in support of her motion. She alleged that based on the deposition testimony of plaintiff and defendant, no question of material fact existed and she was entitled to judgment in her favor as a matter of law. Defendant maintained plaintiff was unable to establish that defendant owed her a duty, arguing that plaintiff both implicitly and explicitly assumed the risks associated with horseback riding. Also, she argued that plaintiff’s “testimony undermine[d] any and all proffered allegations of breach of duty.”

 [*P28]  [**585]  [****703]  Defendant [***15]  attached the parties’ depositions to her filing, as well as copies of the Cross Country documents plaintiff acknowledged signing. The documents included forms titled “RELEASE OF LIABILITY—READ BEFORE SIGINING [sic],” which provided as follows:

“In consideration of being allowed to participate in any way, including but not limited to trail riding, competing, officiating, working for, recreating in any fashion while visiting Cross Country Trail Ride, LLC, and its trail ride program, its related events and activities, I *** the undersigned, acknowledge, appreciate, and agree that;

1. The risk of injury from the activities involved in this program is significant, including the potential for permanent paralysis and death, and while particular skills, equipment, and personal discipline may reduce the risk, the risk of serious injury does exist; and,

2. I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM NEGLIGENCE OF THE RELEASEES or others, and assume full responsibility for my participation; and,

3. I willingly agree to comply with the stated and customary terms of participation. If, however, I observe any unusual significant hazard during my presence [***16]  or participation, I will remove myself from participation and bring such to the attention of the Company immediately; and,

4. I, for myself and on behalf of my heirs, assigns, personal representatives, and next of kin, HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS CROSS COUNTRY TRAIL RIDE, LLC, officers, officials, agents and/or employees, other participants, sponsoring agencies, sponsors, advertisers, and, if applicable, owners and lessors of premises used for the activity (‘Releasees’), WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property associated with my presence or participation, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.

5. Releasor expressly agrees that this release, waiver, and indemnity agreement is intended to be as broad and inclusive as permitted by the laws of the State of Missouri and that if any portion thereof is held invalid, it is agreed that the valid portion shall, not withstanding, continue in full legal force and effect.”

 [*P29]  In March 2017, plaintiff filed a response to defendant’s motion, and in April 2017 defendant filed a reply. Both parties relied on Missouri [***17]  substantive law when addressing defendant’s motion for summary judgment. In April 2017, the trial court also conducted a hearing in the matter and entered a written order granting defendant’s motion. Although the court’s written order did not specify the basis for its ruling, the court’s oral comments at the hearing reflect that it relied upon the Release plaintiff signed at Cross Country. Specifically, it stated as follows:

“Based upon the Release and without going to what is otherwise, I think a factual question, I think the Release in and of itself is sufficient to provide a basis for [defendant’s] Motion for Summary Judgment. It identifies itself as a release. It specifically tells the person who’s signing it to sign it and [plaintiff] sign[ed] not only for herself, but for her underage children. It says ‘please read this before you sign it[.’] It specifically addresses other participants. That’s as strong of language as you can get. So based *** on that, and that alone, the  [**586]   [****704]  court’s [going to] grant the Motion for Summary Judgment.”

 [*P30]  This appeal followed.

[*P31]  II. ANALYSIS

[*P32]  A. Statutory Designation for Motion to Dismiss

 [*P33]  On appeal, plaintiff first argues the trial court erred in granting [***18]  defendant’s motion to dismiss count I of her complaint, alleging a violation of the Animal Control Act, because it was brought under the wrong section of the Code. She notes defendant sought dismissal of count I pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2014)) but argues that, because defendant’s motion “raised an affirmative, factual defense,” it should have been brought pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2014)).

 [*P34] 
“A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based on defects apparent on its face.” Bueker v. Madison County, 2016 IL 120024, ¶ 7, 410 Ill. Dec. 883, 72 N.E.3d 269. “The only matters to be considered in ruling on such a motion are the allegations of the pleadings themselves.” Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 485, 639 N.E.2d 1282, 1289, 203 Ill. Dec. 463 (1994). Conversely, “[a] motion to dismiss under section 2-619 [citation] admits the legal sufficiency of the plaintiff’s claim, but asserts certain defects or defenses outside the pleading that defeat the claim.” In re Scarlett Z.-D., 2015 IL 117904, ¶ 20, 390 Ill. Dec. 123, 28 N.E.3d 776. Where grounds for dismissal do not appear on the face of the complaint, the section 2-619 motion must be supported by affidavit. 735 ILCS 5/2-619(a) (West 2014).

 [*P35]  As noted, defendant sought dismissal of count I of plaintiff’s complaint, arguing Missouri law applied to the parties’ conflict and, as a result, plaintiff’s claim asserting liability based solely on an Illinois statute—the Animal Control Act—could [***19]  not stand. Defendant brought her motion under section 2-615 of the Code, and as stated, plaintiff argues defendant should have designated section 2-619.

 [*P36]  Here, it appears defendant labeled her motion to dismiss count I with the wrong statutory section. Section 2-619(a)(9) of the Code provides for dismissal where “the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2014)). “[A]ffirmative matter” has been held to include “the basic issue as to which state’s law is to apply to the action.” Ingersoll v. Klein, 106 Ill. App. 2d 330, 336, 245 N.E.2d 288, 291 (1969), aff’d, 46 Ill. 2d 42, 262 N.E.2d 593 (1970); see also Illinois Graphics, 159 Ill. 2d at 487 (citing Ingersoll, 46 Ill. 2d at 42, for the proposition that a choice-of-law defense had “been considered ‘affirmative matter’ so as to negate completely the asserted claim”).

 [*P37]  Additionally, our supreme court has acknowledged that  the conflict-of-law methodology “may raise factual issues.” Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 154, 879 N.E.2d 893, 898, 316 Ill. Dec. 505 (2007). Such factual issues are properly considered and addressed in the context of a section 2-619 motion to dismiss, where a trial court may consider pleadings, depositions, and affidavits when making its ruling (Zedella v. Gibson, 165 Ill. 2d 181, 185, 650 N.E.2d 1000, 1002, 209 Ill. Dec. 27 (1995)), rather than in the context of section 2-615 motion, where only the pleadings may be considered (Illinois Graphics, 159 Ill. 2d at 485).

 [*P38]  Nevertheless, even if defendant improperly labeled her motion to dismiss count I, no reversible error [***20]  occurred. We note plaintiff failed to object to the  [**587]   [****705]  statutory designation in defendant’s motion to dismiss. Thus, she has forfeited her challenge to that designation on appeal. American National Bank & Trust Co. v. City of Chicago, 192 Ill. 2d 274, 280, 735 N.E.2d 551, 554, 248 Ill. Dec. 900 (2000). Moreover, setting plaintiff’s forfeiture aside, we note that  a defendant’s error in labeling a motion to dismiss is not fatal where the nonmoving party has suffered no prejudice. Wallace v. Smyth, 203 Ill. 2d 441, 447, 786 N.E.2d 980, 984, 272 Ill. Dec. 146 (2002). In this instance, plaintiff acknowledges that the trial court allowed the choice-of-law issue to be “fleshed out” through the discovery process. Further, the record shows the issue was given full and thorough consideration by the trial court. Thus, plaintiff had a sufficient opportunity to be heard, and we find no reversible error.

[*P39]  B. Choice-of-Law Determination

 [*P40]  Plaintiff next argues the trial court erred in finding Missouri law applied to the parties’ conflict. She contends that a choice-of-law analysis and the facts applicable to that analysis support the conclusion that Illinois has a more significant relationship to her cause of action.

 [*P41]  Initially, we note that a de novo standard of review applies to this issue. Such a standard is applicable on review of a dismissal under either section 2-615 or 2-619 of the Code. Patrick Eng’g, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31, 976 N.E.2d 318, 364 Ill. Dec. 40. Additionally, we apply a de [***21]  novo standard when reviewing a trial court’s choice-of-law determination. Townsend, 227 Ill. 2d at 154.

 [*P42] 
“A choice-of-law determination is required only when a difference in law will make a difference in the outcome.” Id. at 155. Thus, “a choice-of-law analysis begins by isolating the issue and defining the conflict.” Id. Here, the parties agree that conflicts exist between Missouri and Illinois law. Notably, they identify Missouri’s lack of a statute that is equivalent to the Illinois Animal Control Act. If Illinois law applies, claimant can maintain the cause of action alleged in count I of her complaint, which is based on that Illinois statute; however, if Missouri law applies, count I of her complaint must be dismissed as it would state no cause of action upon which relief could be granted under Missouri law. Thus, we agree that a conflict exists that will result in a difference in outcome.

 [*P43]  Next, when making a choice-of-law determination, “the forum court applies the choice-of-law rules of its own state.” Id.  Illinois has adopted the choice-of-law analysis contained in the Restatement (Second) of Conflict of Laws (1971) (Second Restatement).Townsend, 227 Ill. 2d . at 163-64. Under the Second Restatement, a presumption exists in favor of applying the [***22]  law of the state where the injury occurred. Id. at 163. The presumption “may be overcome only by showing a more or greater significant relationship to another state.” (Emphases in original.) Id. Specifically, section 146 of the Restatement provides as follows:

“In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in [the Second Restatement] to the occurrence and the parties, in which event the local law of the other state will be applied.” Restatement (Second) of Conflict of Laws § 146 (1971).

 [*P44] 
Once a court chooses the presumptively applicable law, it “tests” its  [**588]   [****706]  choice against various “principles” and “contacts” as set forth in sections 6 and 145 of the Second Restatement. Townsend, 227 Ill. 2d at 164. Section 6(2) sets forth the following relevant factors for consideration:

“(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field [***23]  of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.”

Restatement (Second) of Conflict of Laws § 6(2) (1971).

 [*P45]  Additionally, section 145(2) sets forth the following “[c]ontacts to be taken into account in applying the principles of [section] 6“:

“(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.” Restatement (Second) of Conflict of Laws § 145(2) (1971).

The contacts set forth in section 145(2) “are to be evaluated according to their relative importance with respect to the particular issue.” Id.

 [*P46]  Practically, it makes no difference whether a court first considers the section 145(2) contacts or the section 6(2) general principles. Townsend, 227 Ill. 2d at 168. “In either case[,] the Second Restatement’s goal is the same—to ensure that a court is not merely ‘counting contacts,’ and that each contact is meaningful in light of the policies sought to be vindicated by the conflicting laws.” Id.

 [*P47]  Here, plaintiff was kicked by defendant’s horse while on a trail ride in Missouri. Thus, Missouri is “the state where the injury occurred,” and a presumption exists in favor [***24]  of applying Missouri law unless, as plaintiff argues, Illinois has a more significant relationship to the occurrence and the parties. In testing this presumption, we first consider relevant “contacts” as set forth in section 145(2) of the Restatement.

[*P48]  1. Section 145 Contacts

 [*P49]  The first contact for consideration is the place where the injury occurred. Restatement (Second) of Conflict of Laws § 145(2)(a) (1971). As discussed, plaintiff was kicked by defendant’s horse in Missouri, and thus, that is where her injury occurred. Plaintiff maintains this factor is of minimal importance because the location of her injury was merely fortuitous in that the incident could just as easily have occurred in Illinois. To support her argument, plaintiff cites cases with fact scenarios that involve interstate travelers and motor vehicle accidents, which courts have determined could just as easily have occurred in another state. Murphy v. Mancari’s Chrysler Plymouth, Inc., 408 Ill. App. 3d 722, 727-28, 948 N.E.2d 233, 238, 350 Ill. Dec. 164 (2011); Miller v. Hayes, 233 Ill. App. 3d 847, 852, 600 N.E.2d 34, 38, 175 Ill. Dec. 411 (1992); Schulze v. Illinois Highway Transportation Co., 97 Ill. App. 3d 508, 510-11, 423 N.E.2d 278, 280, 53 Ill. Dec. 86 (1981).

 [*P50]  [****707]  [**589]  Specifically, in Murphy, 408 Ill. App. 3d at 723, the plaintiffs were Illinois residents who brought suit against an Illinois automobile dealer that sold them a vehicle after one of the plaintiffs was injured in a motor vehicle accident in Michigan. The trial court determined Michigan law applied to the liability and damages issues in the case, and the plaintiffs appealed. Id. at 724.

 [*P51]  On review, the First District [***25]  noted that, in the context of a choice-of-law analysis, “situations may exist where the place of injury is merely fortuitous and, therefore, not an important contact.” Id. at 727. In the case before it, the court found that the injured plaintiff’s presence in Michigan was not fortuitous because “[h]e was purposefully and voluntarily in Michigan, driving to his weekend home with the intention of staying there for several days.” Id. at 727. However, it also determined that a purposeful presence in Michigan did not mean that the accident “could not have happened in Michigan fortuitously.” Id. It pointed out that the cause of the accident had not been determined and “[t]he same type of accident and the same type of injuries could have just as easily happened in Illinois.” Id. at 727-28. Thus, the court concluded the place of injury was not an important consideration in the context of the case before it. Id. at 728.

 [*P52]  Defendant argues Murphy is distinguishable from the present case, and we agree. Notably, this case does not involve a motor vehicle accident that happened by chance in one state versus another. Instead, plaintiff’s injury occurred at the planned destination of both parties. The specific location, Cross Country, focused [***26]  on horseback riding activities in which both parties planned to engage. Additionally, both plaintiff and defendant had previously visited Cross Country on multiple occasions.

 [*P53]  We note comment e of section 145 provides as follows:

“In the case of personal injuries or of injuries to tangible things, the place where the injury occurred is a contact that, as to most issues, plays an important role in the selection of the state of the applicable law [citation]. *** This is so for the reason among others that persons who cause injury in a state should not ordinarily escape liabilities imposed by the local law of that state on account of the injury. ***

Situations do arise, however, where the place of injury will not play an important role in the selection of the state of the applicable law. This will be so, for example, when the place of injury can be said to be fortuitous or when for other reasons it bears little relation to the occurrence and the parties with respect to the particular issue ***.” (Emphasis added.) Restatement (Second) of Conflict of Laws § 145 cmt. e (1971).

Under the facts of this case, we cannot say that the place of injury bears little relation to the occurrence or the parties. This is particularly true in light of the underlying issues presented [***27]  in plaintiff’s complaint, which almost exclusively involve the parties’ behavior and conduct while horseback riding at Cross Country in Missouri. Therefore, we find this contact weighs in favor of applying Missouri law.

 [*P54]  The next contact for consideration is the place where the conduct causing the plaintiff’s injury occurred. Restatement (Second) of Conflict of Laws § 145(2)(b) (1971). An analysis of injury-causing conduct “includes all conduct from any source contributing to the injury,” including a defendant’s affirmative defenses  [**590]   [****708]  or allegations of contributory negligence. Townsend, 227 Ill. 2d at 169.

 [*P55]  Here, plaintiff acknowledges that, relative to count I, this factor favors application of Missouri law because “the place where the conduct causing the injury occurred would be the place where the animal caused injury without provocation.” She asserts, however, that she alleged injury-causing conduct that occurred in both Illinois and Missouri in connection with count II and thus, this factor must be “deemed a wash.” We disagree.

 [*P56]  In count II, plaintiff asserted defendant was negligent for failing to warn plaintiff of the horse’s violent propensity to kick, failing to properly train her horse, riding the horse too close to plaintiff, and failing to adhere to industry [***28]  and practice norms while riding her horse. All but one of these alleged actions or inactions by defendant occurred exclusively in Missouri. Additionally, defendant has argued that plaintiff expressly assumed the risks associated with horseback riding at Cross Country and points to the Release plaintiff signed in Missouri. Given that the vast majority of relevant conduct occurred in Missouri, we find this factor weighs in favor of applying Missouri law to the parties’ conflict.

 [*P57]  The third contact for consideration is “the domicil, residence, nationality, place of incorporation and place of business of the parties.” Restatement (Second) of Conflict of Laws § 145(2)(c) (1971). Here, both parties are Illinois residents and neither disputes that this factor weighs in favor of applying Illinois law.

 [*P58]  The final contact for consideration is “the place where the relationship, if any, between the parties is centered.” Restatement (Second) of Conflict of Laws § 145(2)(d) (1971). In this instance, the parties’ relationship primarily arose from having a group of mutual friends in Illinois and engaging in horseback riding activities within that group. Plaintiff and defendant were riding horses together in Missouri at the time of the incident at issue but had previously ridden horses together in Illinois. [***29]  Ultimately, we find this contact favors applying Illinois law, as most of the parties’ interactions occurred within this state.

 [*P59]  Here, the section 145(2) contacts are evenly split, with two favoring application of Missouri law and two favoring Illinois law. However, as noted, the 145(2) contacts “are to be evaluated according to their relative importance with respect to the particular issue.” Restatement (Second) of Conflict of Laws § 145(2) (1971). In this case, the fact that the parties interacted with one another more frequently in Illinois has little to do with the issues presented by either count I or count II of plaintiff’s complaint. Thus, we find the fourth factor set forth in section 145(2) is only minimally important to the underlying proceedings. As a result, the section 145(2) contacts, when considered alone, support rather than rebut the presumption in favor of applying Missouri law. This does not end our analysis, however, and we must also consider the principles set forth in section 6 of the Second Restatement.

[*P60] 2. Section 6 Principles

 [*P61]  As noted, section 6(2) of the Second Restatement sets forth the following principles for consideration when conducting a choice-of-law analysis:

“(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant [***30]  policies of other interested states and the relative interests of those states in the determination of the particular issue,

 [****709]  [**591]  (d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.”

Restatement (Second) of Conflict of Laws § 6(2) (1971).

In this case, a detailed analysis of all seven section 6 principles is unnecessary because the principles set forth in sections 6(2)(a), 6(2)(d), and 6(2)(f) are only minimally implicated in a personal injury action. Townsend, 227 Ill. 2d at 169-70 (citing Restatement (Second) of Conflict of Laws § 145 cmt. b, at 415-16 (1971)). Therefore, we confine our analysis to the remaining section 6 principles. Id. at 170.

 [*P62]  As stated, the parties agree that Illinois law conflicts with Missouri law based upon the existence of the Animal Control Act in Illinois and the lack of an equivalent Missouri statute. Initially, we consider this conflict in light of the relevant policies of Illinois (section 6(2)(b)), the relevant policies of Missouri and the relative interest of Missouri in the determination of the issue (section 6(2)(c)), and the basic policies underlying the particular field of law (section 6(2)(e)).

 [*P63]  Under the Animal Control Act, “[i]f a dog or other animal, without provocation, attacks, attempts to attack, [***31]  or injures any person who is peaceably conducting himself or herself in any place where he or she may lawfully be, the owner of such dog or other animal is liable in civil damages to such person for the full amount of the injury proximately caused thereby.” 510 ILCS 5/16 (West 2014). Our supreme court has described the history behind the Animal Control Act and interpreted its provisions as follows:

“The original version of this statute was passed in 1949 and applied only to dogs. [Citation.] The apparent purpose of the legislation was modest: to reduce the burden on dog-bite plaintiffs by eliminating the ‘one-bite rule’—the common law requirement that a plaintiff must plead and prove that a dog owner either knew or was negligent not to know that his dog had a propensity to injure people. [Citation.]

Enacting the Animal Control Act in 1973, the legislature amended this ‘dog-bite statute’ to cover ‘other animals.’ ***

*** [W]e believe that the legislature intended only to provide coverage under the statute for plaintiffs who, by virtue of their relationship to the owner of the dog or other animal or the lack of any such relationship, may not have any way of knowing or avoiding the risk that the animal [***32]  poses to them. This interpretation is consistent with the emphasis the statute places on lack of provocation and plaintiff’s peaceable conduct in a place in which he is legally entitled to be.” Harris v. Walker, 119 Ill. 2d 542, 546-47, 519 N.E.2d 917, 918-19, 116 Ill. Dec. 702 (1988).

In Harris, the supreme court held the Animal Control Act was inapplicable to circumstances “where a person rents a horse and understands and expressly accepts the risks of using the horse.” Id. at 547-48; Johnson v. Johnson, 386 Ill. App. 3d 522, 535, 898 N.E.2d 145, 159, 325 Ill. Dec. 412 (2008) (“[T]he common law defense of assumption of the risk has been recognized as a valid affirmative defense to an action brought pursuant to the Animal Control Act.”).

 [*P64]  As indicated by the parties, Missouri does not have a comparable statute. See Mo. Ann. Stat. § 273.036 (West  [**592]   [****710]  2014) (providing for strict liability in the event of dog bites but not applying to other animals). However, it has enacted the Equine Liability Act, for the purpose of codifying “the common law assumption of risk principle in the context of a specific recreational activity.” Frank v. Mathews, 136 S.W.3d 196, 202 (Mo. Ct. App. 2004). That Act limits liability for injuries resulting from the inherent risks associated with equine activities, providing as follows:

“[A]n equine activity sponsor, an equine professional, *** any employee thereof, or any other person or corporation shall not be liable for an injury to or [***33]  the death of a participant resulting from the inherent risks of equine *** activities and, *** no participant or a participant’s representative shall make any claim against, maintain an action against, or recover from an equine activity sponsor, an equine professional, *** any employee thereof, or any other person from injury, loss, damage or death of the participant resulting from any of the inherent risks of equine or livestock activities.” (Emphases added.) Mo. Ann. Stat. § 537.325(2) (West 2014).

Under the Equine Liability Act, an “equine activity” includes “[r]ides *** sponsored by an equine activity sponsor.” Id. § 537.325(3)(e). Further, an “equine activity sponsor” includes a group or corporation that “sponsors, organizes[,] or provides the facilities for, an equine activity.” Id. § 537.325(4). The Equine Liability Act does not relieve covered individuals “from any duty that common law negligence principles impose upon them.” Frank, 136 S.W.3d at 203.

 [*P65]  Finally, we note that, although not significantly addressed by either party, Illinois has also adopted an Equine Activity Liability Act (Illinois Equine Act) (745 ILCS 47/1 et seq. (West 2014)). The legislature has set forth the purpose of the Illinois Equine Act as follows:

“The General Assembly recognizes that persons who participate [***34]  in equine activities may incur injuries as a result of the risks involved in those activities. The General Assembly also finds that the State and its citizens derive numerous economic and personal benefits from equine activities. Therefore, it is the intent of the General Assembly to encourage equine activities by delineating the responsibilities of those involved in equine activities.” 745 ILCS 47/5 (West 2014).

The Fifth District of this court has noted that equine activity liability acts “have been enacted in more than 40 states since the mid-1980s” and are intended “to promote equine activities and the horse industry in general by limiting liability for some horse-related activities.” Smith v. Lane, 358 Ill. App. 3d 1126, 1128-29, 832 N.E.2d 947, 950, 295 Ill. Dec. 497 (2005).

 [*P66]  Here, plaintiff argues the policy behind the Animal Control Act “is more significant within the context of injuries by animals than the purpose of the Missouri Equine Liability Act.” We cannot agree. Clearly, Illinois has a policy, by way of the Animal Control Act, of protecting individuals who come into contact with an animal and are unable to appreciate or avoid the risks posed by the animal. However, both Missouri and Illinois have acknowledged that special circumstances exist with respect to horses and equine-related [***35]  activities. Like Missouri law, Illinois law also contemplates that certain inherent risks are associated with equine activities like the sort of activity engaged in by the parties in this case. Both states have a policy of promoting equine activities and limiting liability associated with those activities. Both states also take into account assumption of risk principles with respect to horse-related injuries, even in the context of the Animal Control Act. Given these circumstances, we fail to see how  [**593]   [****711]  Illinois policies are any “more significant” than those behind relevant Missouri law. Rather, both states appear to have similar policies and interests relative to injuries caused by horse-related activities.

 [*P67]  In addressing the relevant policies and interests of both Illinois and Missouri, plaintiff also argues that Illinois has a significant interest in providing tort remedies to its injured citizens. She cites Esser v. McIntyre, 169 Ill. 2d 292, 300, 661 N.E.2d 1138, 1142, 214 Ill. Dec. 693 (1996), wherein the supreme court held that “[h]aving provided a legal means for a plaintiff to recover for injuries caused by a defendant’s culpable conduct, Illinois has a strong interest in providing that remedy in disputes between Illinois residents.” In so holding, the court noted [***36]  that under the law of the place of injury in that case—Mexico—Illinois’s interest would be circumvented because the plaintiff had no remedy against the defendant. Id. In fact, the parties had agreed that the plaintiff had no cause of action against the defendant under Mexican law. Id. at 297. The same cannot be said in this case, as plaintiff has a potential remedy under Missouri law in the form of a negligence cause of action. Further, we note that Missouri has a competing interest in having its laws apply to equine-related activities that occur within its borders.

 [*P68]  Ultimately, we disagree with plaintiff that the policies and interests relevant to this matter weigh in favor of applying Illinois law. Therefore, plaintiff does not overcome the presumption in favor of applying Missouri law.

 [*P69]  On review, plaintiff also addresses the principle relating to the “ease in the determination and application of the law to be applied.” Restatement (Second) of Conflict of Laws § 6(2)(g) (1971). She maintains that because Illinois law is more advantageous to her claim, this principle weighs in favor of applying Illinois law. However, we agree with defendant that the purpose of section 6(2)(g) is to consider whether the competing laws are “simple and easy to apply” rather [***37]  than which law is most beneficial to plaintiff. See Restatement (Second) of Conflict of Laws § 6 cmt. j (1971).

 [*P70]  Relative to this principle, we note that the Illinois Equine Act may be applied to preempt the Animal Control Act in certain situations. See Carl v. Resnick, 306 Ill. App. 3d 453, 458-59, 714 N.E.2d 1, 5, 239 Ill. Dec. 443 (1999) (stating the Illinois Equine Act would bar actions in which the plaintiff was engaged in an “‘equine activity'” that would have previously been permitted under the Animal Control Act); Smith, 358 Ill. App. 3d at 1134 (stating that “had the [Illinois] Equine Act applied to the facts of the case, preemption would have barred an action for the same alleged injuries under the Animal Control Act”). However, the Illinois Equine Act has also been found to be “unclear as to whether it was meant to limit the liability of persons other than equine activity sponsors and equine professionals,” i.e., persons like defendant in this case. Kush v. Wentworth, 339 Ill. App. 3d 157, 165, 790 N.E.2d 912, 918, 274 Ill. Dec. 139 (2003). In Kush, the Second District of this court criticized the Illinois Equine Act for containing inconsistencies and “obvious drafting error,” as well as provisions that could lead to absurd results. Id. at 162-63. Given the lack of clarity of this state’s equine activity liability act, we must find that consideration of whether the competing laws are “simple and easy to apply” also weighs in favor of applying [***38]  Missouri law.

 [*P71]  As discussed, a presumption exists in this case in favor of applying the Missouri law to the parties’ conflict. We find  [**594]   [****712]  nothing in either the parties’ arguments or our review of the Second Restatement’s relevant contacts and principles for consideration that overrides that presumption. Thus, we find no error in the trial court’s finding that Missouri law applies to the underlying controversy.

 [*P72]  In so holding, we note that plaintiff suggests it is unclear from the underlying proceedings whether the trial court’s choice-of-law ruling was as to both counts of her complaint. We disagree. The court’s order referred generally to “the litigation” or “the conflict” when holding Missouri law was applicable, and nothing in its orders indicates that its ruling was limited to only count I. Further, as plaintiff acknowledges, both parties proceeded as if Missouri law applied to count II by citing substantive law from that state in connection with filings related to defendant’s motion for summary judgment. Therefore, we find plaintiff’s assertion that the record is somehow unclear is without merit.

[*P73]  C. Motion for Summary Judgment

 [*P74]  On appeal, plaintiff next argues the trial court erred [***39]  in granting defendant’s motion for summary judgment as to count II of her complaint. “Summary judgment is properly granted when the pleadings, depositions, admissions, and affidavits on file, viewed in the light most favorable to the nonmoving party, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Village of Bartonville v. Lopez, 2017 IL 120643, ¶ 34, 413 Ill. Dec. 34, 77 N.E.3d 639. “If the plaintiff fails to establish any element of the cause of action, summary judgment for the defendant is proper.” Williams v. Manchester, 228 Ill. 2d 404, 417, 888 N.E.2d 1, 9, 320 Ill. Dec. 784 (2008). The trial court’s summary judgment ruling is subject to de novo review. Schweihs v. Chase Home Finance, LLC, 2016 IL 120041, ¶ 48, 412 Ill. Dec. 882, 77 N.E.3d 50.

 [*P75] 
To obtain relief in a negligence cause of action, “‘the plaintiff must establish that (1) the defendant had a duty to the plaintiff; (2) the defendant failed to perform that duty; and (3) the defendant’s breach was the proximate cause of the plaintiff’s injury.'” Peters v. Wady Industries, Inc., 489 S.W.3d 784, 793 (Mo. 2016) (quoting Martin v. City of Washington, 848 S.W.2d 487, 493 (Mo. 1993)). In this case, both before the trial court and on appeal, defendant has argued that plaintiff cannot establish that defendant owed her a duty based on the Release plaintiff signed at Cross Country. The trial court’s oral ruling reflects that it agreed with this argument and granted summary judgment in defendant’s favor. For the reasons that follow, we [***40]  also agree that plaintiff signed a valid and enforceable release of liability and expressly assumed the risks associated with the underlying horseback riding activities.

 [*P76] 
Under the “assumption of the risk doctrine” a person who “voluntarily consents to accept the danger of a known and appreciated risk[ ] *** may not sue another for failing to protect him from it.” Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 191 (Mo. 2014). An express assumption of risk is the simplest application of the doctrine and “recognizes that, when a plaintiff makes an express statement that he is voluntarily accepting a specified risk, the plaintiff is barred from recovering damages for an injury resulting from that risk.” Id. An express assumption of risk “most often involves a written waiver or release by the would-be plaintiff.” Id. Further, “in an ‘express assumption of the risk’ case, the plaintiff’s consent relieves the defendant of any duty to protect the plaintiff from injury.” Id. at 193.

 [*P77] 
“Although exculpatory clauses in contracts releasing an individual  [**595]   [****713]  from his or her own future negligence are disfavored, they are not prohibited as against public policy.” Alack v. Vic Tanny International of Missouri, Inc., 923 S.W.2d 330, 334 (Mo. 1996). “[C]ontracts exonerating a party from acts of future negligence are to be ‘strictly construed against the party [***41]  claiming the benefit of the contract, and clear and explicit language in the contract is required to absolve a person from such liability.'” Id. (quoting Hornbeck v. All American Indoor Sports, Inc., 898 S.W.2d 717, 721 (Mo. Ct. App. 1995)). Missouri law requires “clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence,” and “[g]eneral language will not suffice.” Id. at 337. “‘The words “negligence” or “fault” or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs. There must be no doubt that a reasonable person agreeing to an exculpatory clause actually understands what future claims he or she is waiving.'” Holmes v. Multimedia KSDK, Inc., 395 S.W.3d 557, 560-61 (Mo. Ct. App. 2013) (quoting Alack, 923 S.W.2d at 337-38).

 [*P78]  Additionally, “[o]nly parties to a contract and any third-party beneficiaries of a contract have standing to enforce that contract.” Verni v. Cleveland Chiropractic College, 212 S.W.3d 150, 153 (Mo. 2007). To be deemed a third-party beneficiary, the terms of the contract must clearly express intent to benefit the third party or an identifiable class of which the third party is a member. Id. When an express declaration of intent is lacking, a strong presumption exists “‘that the third party is not a beneficiary and that the parties contracted to benefit only themselves.'” Id. (quoting Nitro Distributing, Inc. v. Dunn, 194 S.W.3d 339, 345 (Mo. 2006)).

 [*P79] 
In Missouri, the [***42]  primary rule of contract interpretation is to determine and give effect to the intent of the parties. State ex rel. Pinkerton v. Fahnestock, 531 S.W.3d 36, 44 (Mo. 2017). Intent is determined by considering the plain and ordinary meaning of the contract language. Id. Each clause in a contract should be read in the context of the contract as a whole, and any interpretation that would render a provision meaningless should be avoided. Id. Additionally, the parties’ intentions should be “gleaned from the four corners of the contract” unless the contract is ambiguous, in which case a court may resort to considering extrinsic evidence. Kansas City N.O. Nelson Co. v. Mid-Western. Construction Co. of Missouri, Inc., 782 S.W.2d 672, 677 (Mo. App. 1989).

 [*P80]  Additionally, whether a contract is ambiguous presents a question of law. Alack, 923 S.W.2d at 334. “‘An ambiguity arises when there is duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.'” Id. at 337 (quoting Rodriguez v. General Accident Insurance Co. of America, 808 S.W.2d 379, 382 (Mo. 1991)).

 [*P81]  Here, plaintiff acknowledged signing the Release at issue upon her arrival at Cross Country. In fact, she signed three such Releases—one for herself and one for each of the two minors who accompanied her. The operative language of the Release is as follows:

“4. I, for myself and on behalf of my heirs, assigns, personal representatives, and next of kin, HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS CROSS COUNTRY [***43]  TRAIL RIDE, LLC, officers, officials, agents and/or employees, other participants, sponsoring agencies, sponsors, advertisers, and, if applicable, owners and lessors of premises used for the activity (‘Releasees’), WITH RESPECT TO  [**596]   [****714]  ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property associated with my presence or participation, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.” (Emphasis added.)

Defendant maintains she was an intended third-party beneficiary of the Release in that she falls within the category of “other participants” and, as a result, plaintiff agreed to release her from liability for injuries plaintiff sustained while horseback riding at Cross Country, including those that occurred due to defendant’s negligence.

 [*P82]  Initially, plaintiff argues the Release fails to clearly express the intent to benefit defendant as a third party. To support this contention, she points to her own testimony that she “did not even know what she [was] signing” and the lack of testimony from anyone associated with Cross Country regarding their intent in entering the contract. Additionally, plaintiff maintains [***44]  the phrase “other participants” is ambiguous and could be reasonably interpreted as a “catch-all term” that means “’employees, agents, servants, and/or independent contractors of [Cross Country] who perform services which further [its] business'” and not, as defendant suggests, other paying customers who are similarly situated to plaintiff and defendant. We disagree and find the Release is unambiguous and clearly expresses an intent to benefit an identifiable class, i.e., “other participants,” of which defendant is a member.

 [*P83]  Looking as we must at the four corners of the parties’ agreement, it is clear that “other participants” were included within the list of individuals or entities to whom the parties to the agreement intended the release of liability to apply. In other words, there was an express intent to benefit “other participants” in the Release. Additionally, when looking at the agreement as a whole, it is clear that the phrase “other participants” refers to those individuals at Cross Country who were similarly situated to plaintiff and defendant, i.e., paying customers or guests who were engaging in the activities provided or offered by Cross Country. Although the term “participants” [***45]  is not defined in the Release, as defendant notes, the terms “participate,” “participation,” and “participants” are used throughout the document. Their use clearly reflects that these words were intended to refer to individuals visiting Cross Country for the purpose of engaging in its recreational activities, including horseback riding. The Release provides as follows:

“In consideration of being allowed to participate in any way, including but not limited to trail riding, competing, officiating, working for, recreating in any fashion while visiting Cross Country Trail Ride, LLC, and its trail ride program, its related events and activities, I *** the undersigned, acknowledge, appreciate, and agree that;

1. The risk of injury from the activities involved in this program is significant, including the potential for permanent paralysis and death, and while particular skills, equipment, and personal discipline may reduce the risk, the risk of serious injury does exist; and,

2. I KNOWINGLY AND FREELY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM NEGLIGENCE OF THE RELEASEES or others, and assume full responsibility for my participation; and,

3. I willingly agree to comply [***46]  with the stated and customary terms of participation. If, however, I observe any unusual significant hazard during my  [**597]   [****715]  presence or participation, I will remove myself from participation and bring such to the attention of the Company immediately; and,

4. I, for myself and on behalf of my heirs, assigns, personal representatives, and next of kin, HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS CROSS COUNTRY TRAIL RIDE, LLC, officers, officials, agents and/or employees, other participants, sponsoring agencies, sponsors, advertisers, and, if applicable, owners and lessors of premises used for the activity (‘Releasees’), WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property associated with my presence or participation, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent permitted by law.” (Emphases added.)

Additionally, signature lines on the Release required the “PARTICIPANT[‘]S SIGNATURE” or the signature of a parent or guardian for “PARTICIPANTS OF MINORITY AGE.”

 [*P84]  During her own deposition, plaintiff acknowledged that the Release used the phrase “other participants” and that she would characterize defendant as “another [***47]  participant” in the activities at Cross Country. We agree and find the language used in the Release is clear and that it unambiguously refers to an identifiable class of individuals that includes defendant.

 [*P85]  Plaintiff next argues the Release is deficient because it purported to relieve liability for nonreleasable claims, including “intentional torts, gross negligence, and/or activities involving the public interest.” She notes language in the Release stated it applied to “THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.” Plaintiff maintains the word “otherwise” encompasses those nonreleasable claims and, thus, renders the Release duplicitous, indistinct, uncertain, and ambiguous.

 [*P86]  To support her argument, plaintiff relies on Lewis v. Snow Creek, Inc., 6 S.W.3d 388, 394 (Mo. Ct. App. 1999), involving an exculpatory clause that purported “to shield [a party] from ‘any claim based on negligence and *** any claim based upon *** other legal theory.'” There, the reviewing court noted “‘there is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.'” Id. (quoting Alack, 923 S.W.2d at 337). It found that the exculpatory clause before it used general language by referencing [***48]  claims based on “‘any *** other legal theory,'” stating such language included “intentional torts, gross negligence or any other cause of action not expressly listed.” Id. Thus, because the contract at issue purported to relieve the respondent in the case of all liability but did not actually do so, it was duplicitous, indistinct, uncertain and, ultimately, ambiguous. Id.

 [*P87]  We find Lewis distinguishable from the present case. The language there was much broader than the language of the Release that plaintiff signed. Unlike in this case, the exculpatory clause in Lewis expressly referred to legal theories other than negligence. Additionally, we note other courts applying Missouri law have suggested that the same language that is at issue in this case was sufficiently clear and unambiguous. See Haines v. St. Charles Speedway, Inc., 689 F. Supp. 964, 969 (E.D. Mo. 1988) (finding a release was clear and unambiguous under Missouri law where it relieved liability for the “negligence of the Releasees or otherwise” (internal quotation marks omitted)); Hornbeck v. All American Indoor Sports, Inc., 898 S.W.2d 717, 721  [****716]  [**598]  (Mo. Ct. App. 1995) (stating language that released claims “‘whether caused by the negligence of the releasees or otherwise'” would “clearly and unambiguously encompass[ ] the negligence of the party seeking to enforce the release” (quoting [***49]  Haines, 689 F. Supp. at 969)). In this instance, the Release plaintiff signed used the term “negligence” and did not expressly include references to any “other legal theory.” We find the Release was sufficient to notify plaintiff that she was releasing “other participants” in trail riding activities at Cross Country from claims arising from the “other participant’s” own negligence. See Alack, 923 S.W.2d at 337 (“The exculpatory language must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence.”).

 [*P88]  Finally, plaintiff also challenges the format of the Cross Country Release. Again, she relies on Lewis, wherein the court additionally found the exculpatory clause before it was not conspicuous and, thus, insufficient to provide notice of a release of liability for negligence claims. Lewis, 6 S.W.3d at 394-95. Specifically, the reviewing court noted the form at issue was titled as a “Rental Form” rather than a release, the form’s exculpatory clause was in approximately five-point font at the bottom of the form, and the plaintiffs “had to sign the Rental Form to receive ski equipment and had to do so while in a line.” Id.

 [*P89]  Again, the present case is distinguishable. Here, the Release documents [***50]  submitted by the parties consisted of two pages. As argued by defendant, the first page was separated into two equal parts. The top portion was labeled “Registration Form” and included several blank spaces for basic guest information. The bottom portion of the form was labeled “RELEASE OF LIABILITY—READ BEFORE SIGINING [sic]” and was separated from the top portion of the form by a dotted line. The titles of both documents appear to be in the same font size with the title of the Release being entirely capitalized. The release information is not relegated to only the bottom portion of the form but, instead, consists of several paragraphs and occupies half of the first page. Significant language in the Release is also capitalized for emphasis. The second page of the Release documents was similarly divided into two equal parts. However, both parts of the second page pertained to Cross Country’s Release. Plaintiff signed the Cross Country Release three times, once for herself and once for each of the minors accompanying her. Further, we note that although plaintiff claims she did not read the release, she did acknowledge that she was required to sign similar documents during previous visits [***51]  to Cross Country.

 [*P90]  Here, we find the Release at issue was unambiguous and conspicuous such that it sufficiently informed plaintiff that she was releasing other individuals participating in Cross Country’s trail riding activities—including defendant—from claims arising out of their own negligence. Plaintiff expressly assumed the risks associated with her horseback riding activities at Cross Country and, through the Cross Country Release she signed, relieved defendant of any duty to protect her from injury. Given the circumstances presented, the trial court committed no error in granting defendant’s motion for summary judgment.

 [*P91]  We note plaintiff has additionally argued on appeal that the trial court erred in granting summary judgment in defendant’s favor under Missouri law because defendant’s conduct was grossly negligent. She points out that, under Missouri law, “one may never exonerate oneself from future liability for intentional  [**599]   [****717]  torts or for gross negligence, or for activities involving the public interest.” Alack, 923 S.W.2d at 337. Further, plaintiff notes that in response to defendant’s motion for summary judgment, she made the following argument: “There is a genuine issue of material fact as to whether [***52]  Defendant acted grossly negligent in participating in a group trail ride with a sizeable group, including children, on a horse she did not trust, that had kicked one person prior, while intoxicated and riding too closely to Plaintiff.”

 [*P92]  In DeCormier v. Harley-Davidson Motor Co. Group, Inc., 446 S.W.3d 668, 671 (Mo. 2014), the Missouri Supreme Court stated that it would “enforce exculpatory agreements to protect a party from liability for their own negligence” and a plaintiff could not “avoid this rule by alleging [a defendant was] grossly negligent because Missouri courts do not recognize degrees of negligence at common law.” Thus, it rejected the precise argument plaintiff has raised in this case both before the trial court and on appeal.

 [*P93]  As plaintiff notes, Missouri does recognize a separate cause of action for recklessness. Id. at 671-72.

“Conduct is in reckless disregard of another if the actor:

‘[A]ct[s] or fails to do an act which it is [the actor’s] duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor’s conduct not only creates an unreasonable risk of *** harm to the other but also involves a high degree of probability that substantial harm will result to [the other.]’ [Citations.]” Id. at 672.

“[R]ecklessness [***53]  is a distinct cause of action from negligence.” Throneberry v. Missouri State Highway Patrol, 526 S.W.3d 198, 208 (Mo. Ct. App. 2017). “Recklessness looks to the tortfeasor’s state of mind” and “is an aggravated form of negligence which differs in quality, rather than in degree, from ordinary lack of care.” Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126, 139 (Mo. Ct. App. 1999).

 [*P94]  Under the circumstances presented here, plaintiff cannot rely on a claim of recklessness to avoid enforceability of the Release, as she did not raise the claim before the trial court. SI Securities v. Bank of Edwardsville, 362 Ill. App. 3d 925, 933, 841 N.E.2d 995, 1002, 299 Ill. Dec. 263 (2005) (“Issues not raised in a complaint and points not argued in the trial court are waived on appeal.”).

 [*P95]  Additionally, the record reflects defendant raised plaintiff’s signing of the release and its express assumption of risk argument as an affirmative defense. In Missouri, “[t]o avoid an affirmative defense alleged in an answer, a plaintiff must plead specifically matters of affirmative avoidance.” Angoff v. Mersman, 917 S.W.2d 207, 211 (Mo. Ct. App. 1996); see also Warren v. Paragon Technologies Group, Inc., 950 S.W.2d 844, 845 (Mo. 1997) (stating that “[r]elease is an affirmative defense that must be pled in an answer” and once done requires a plaintiff to file a reply if he or she intends to assert an affirmative avoidance). “The plaintiff’s reply should distinctly allege the grounds of avoidance,” and “[m]atters of avoidance are not available to a party who does not plead them specifically.” Angoff, 917 S.W.2d at 211. “An affirmative [***54]  avoidance is waived if the party raising it has neglected to plead it.” Id.

 [*P96]  Here, plaintiff did not plead a cause of action based on “recklessness” either in her complaint or in responding to defendant’s answer and motion for summary judgment. As defendant points out, she also did not seek to amend her original pleading to include a claim of recklessness. Accordingly, we find plaintiff’s arguments  [**600]   [****718]  are forfeited and do not preclude summary judgment in defendant’s favor.

[*P97]  III. CONCLUSION

 [*P98]  For the reasons stated, we affirm the trial court’s judgment.

 [*P99]  Affirmed.

End of Document


Missouri Equine Liability Act

Missouri Revised Statutes

Title XXXVI. STATUTORY ACTIONS AND TORTS

Chapter 537. Torts and Actions for Damages

§ 537.325. Definitions – liability for equine activities, limitations, exceptions – signs required, contents

1.    As used in this section, unless the context otherwise requires, the following words and phrases shall mean:

(1)    “Engages in an equine activity”, riding, training, assisting in medical treatment of, driving or being a passenger upon an equine, whether mounted or unmounted, or any person assisting a participant or any person involved in show management. The term “engages in an equine activity” does not include being a spectator at an equine activity, except in cases where the spectator places himself in an unauthorized area;

(2)    “Equine”, a horse, pony, mule, donkey or hinny;

(3)    “Equine activity”:

(a)    Equine shows, fairs, competitions, performances or parades that involve any or all breeds of equines and any of the equine disciplines, including, but not limited to, dressage, hunter and jumper horse shows, grand prix jumping, three-day events, combined training, rodeos, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding and western games and hunting;

(b)    Equine training or teaching activities or both;

(c)    Boarding equines;

(d)    Riding, inspecting or evaluating an equine belonging to another, whether or not the owner has received or currently receives monetary consideration or other thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect or evaluate the equine;

(e)    Rides, trips, hunts or other equine activities however informal or impromptu that are sponsored by an equine activity sponsor; and

(f)    Placing or replacing horseshoes on an equine;

(4)    “Equine activity sponsor”, an individual, group, club, partnership or corporation, whether or not operating for profit or nonprofit, legal entity, or any employee thereof, which sponsors, organizes or provides the facilities for, an equine activity, including but not limited to pony clubs, 4-H clubs, hunt clubs, riding clubs, school- and college-sponsored classes, programs and activities, therapeutic riding programs and operators, instructors and promoters of equine facilities, including but not limited to stables, clubhouses, pony ride strings, fairs and arenas at which the activity is held;

(5)    “Equine professional”, a person engaged for compensation, or an employee of such a person engaged:

(a)    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

(b)    In renting equipment or tack to a participant;

(6)    “Inherent risks of equine or livestock activities”, those dangers or conditions which are an integral part of equine or livestock activities, including but not limited to:

(a)    The propensity of any equine or livestock to behave in ways that may result in injury, harm or death to persons on or around it;

(b)    The unpredictability of any equine’s or livestock’s reaction to such things as sounds, sudden movement and unfamiliar objects, persons or other animals;

(c)    Certain hazards such as surface and subsurface conditions;

(d)    Collisions with other equines, livestock, or objects;

(e)    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 his ability;

(7)    “Livestock”, the same as used in section 277.020 ;

(8)    “Livestock activity”:

(a)    Grazing, herding, feeding, branding, milking, or other activity that involves the care or maintenance of livestock;

(b)    A livestock show, fair, competition, or auction;

(c)    A livestock training or teaching activity;

(d)    Boarding livestock; and

(e)    Inspecting or evaluating livestock;

(9)    “Livestock activity sponsor”, an individual, group, club, partnership, or corporation, whether or not operating for profit or nonprofit, legal entity, or any employee thereof, which sponsors, organizes, or provides the facilities for a livestock activity;

(10)    “Livestock facility”, a property or facility at which a livestock activity is held;

(11)    “Livestock owner”, a person who owns livestock that is involved in livestock activity;

(12)    “Participant”, any person, whether amateur or professional, who engages in an equine activity or a livestock activity, whether or not a fee is paid to participate in the equine activity or livestock activity.

2.    Except as provided in subsection 4 of this section, an equine activity sponsor, an equine professional, a livestock activity sponsor, a livestock owner, a livestock facility, a livestock auction market, any employee thereof, or any other person or corporation shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine or livestock activities and, except as provided in subsection 4 of this section, no participant or a participant’s representative shall make any claim against, maintain an action against, or recover from an equine activity sponsor, an equine professional, a livestock activity sponsor, a livestock owner, a livestock facility, a livestock auction market, any employee thereof, or any other person from injury, loss, damage or death of the participant resulting from any of the inherent risks of equine or livestock activities.

3.    This section shall not apply to the horse racing industry as regulated in sections 313.050 to 313.720. This section shall not apply to any employer-employee relationship governed by the provisions of, and for which liability is established pursuant to, chapter 287.

4.    The provisions of subsection 2 of this section shall not prevent or limit the liability of an equine activity sponsor, an equine professional, a livestock activity sponsor, a livestock owner, a livestock facility, a livestock auction market, any employee thereof, or any other person if the equine activity sponsor, equine professional, livestock activity sponsor, livestock owner, livestock facility, livestock auction market, any employee thereof, or person:

(1)    Provided the equipment or tack and knew or should have known that the equipment or tack was faulty and such equipment or tack was faulty to the extent that the equipment or tack caused the injury; or

(2)    Provided the equine or livestock and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity or livestock activity and determine the ability of the participant to safely manage the particular equine or livestock based on the participant’s age, obvious physical condition or the participant’s representations of his or her ability;

(3)    Owns, leases, rents or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known to the equine activity sponsor, equine professional, livestock activity sponsor, livestock owner, livestock facility, livestock auction market, any employee thereof, or person and for which warning signs have not been conspicuously posted;

(4)    Commits an act or omission that constitutes willful or wanton disregard for the safety of the participant and that act or omission caused the injury;

(5)    Intentionally injures the participant;

(6)    Fails to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.

5.    The provisions of subsection 2 of this section shall not prevent or limit the liability of an equine activity sponsor, an equine professional, a livestock activity sponsor, a livestock owner, a livestock facility, a livestock auction market, or any employee thereof under liability provisions as set forth in any other section of law.

6.    Every equine activity sponsor and livestock activity sponsor shall post and maintain signs which contain the warning notice specified in this subsection. Such signs shall be placed in a clearly visible location on or near stables, corrals or arenas where the equine activity sponsor or livestock activity sponsor conducts equine or livestock activities if such stables, corrals or arenas are owned, managed or controlled by the equine activity sponsor or livestock activity sponsor. The warning notice specified in this subsection shall appear on the sign in black letters on a white background with each letter to be a minimum of one inch in height. Every written contract entered into by an equine professional, an equine activity sponsor, a livestock activity sponsor, a livestock owner, a livestock facility, a livestock auction market, or any employee thereof for the providing of professional services, instruction or the rental of equipment, tack, or an equine to a participant, whether or not the contract involves equine or livestock activities on or off the location or site of the equine professional’s, equine activity sponsor’s, or livestock activity sponsor’s business, shall contain in clearly readable print the warning notice specified in this subsection. The signs and contracts described in this subsection shall contain the following warning notice:

WARNING

Under Missouri law, an equine activity sponsor, an equine professional, a livestock activity sponsor, a livestock owner, a livestock facility, a livestock auction market, or any employee thereof is not liable for an injury to or the death of a participant in equine or livestock activities resulting from the inherent risks of equine or livestock activities pursuant to the Revised Statutes of Missouri.

Cite as § 537.325, RSMo

History. Amended by 2015 Mo. Laws, SB 12, s A, eff. 8/28/2015.

Amended by 2014 Mo. Laws, HB 1326, s A, eff. 12/20/2014.

L. 1994 S.B. 457

Note:

*Word “means” appears here in original rolls.

**Word “them” appears in original rolls.

(2004) Exculpatory clause must show clear and unmistakable waiver and shifting of risk to be enforceable, and section does not relieve riding instructors or stable owners of duty to exercise reasonable care. Frank v. Mathews, 136 S.W.3d 196 (Mo.App.W.D.).


Hawkins v. Switchback MX, LLC, 339 F. Supp. 3d 543, 2018 U.S. Dist. LEXIS 155249

Hawkins v. Switchback MX, LLC, 339 F. Supp. 3d 543, 2018 U.S. Dist. LEXIS 155249

United States District Court for the Western District of Pennsylvania

September 12, 2018, Decided; September 12, 2018, Filed

CIVIL ACTION NO. 2:16-CV-1719

Reporter

KAMERON HAWKINS and AMBER LYNN DURBIN, Plaintiffs v. SWITCHBACK MX, LLC d/b/a SWITCHBACK RACEWAY, Defendant

Counsel:  [**1] For KAMERON HAWKINS, &, AMBER LYNN DURBIN, Plaintiffs: George R. Farneth , II, LEAD ATTORNEY, The Farneth Law Group, LLC, Wellsburg, WV.

For SWITCHBACK MX, LLC, doing business as, SWITCHBACK RACEWAY, Defendant: Michael John Pawk, Lutz & Pawk, Butler, PA.

Judges: Christopher C. Conner, Chief United States District Judge.

Opinion by: Christopher C. Conner

Opinion

[*545]  MEMORANDUM

Plaintiff Kameron Hawkins (“Hawkins”) suffered injuries after he unsuccessfully attempted a jump while riding a dirt bike on an indoor course at defendant Switchback Raceway (“Switchback”). Hawkins and his mother, plaintiff Amber Lynn Durbin (“Durbin”), commenced this diversity action advancing three negligence claims against Switchback under Pennsylvania law. Before the court are the parties’ cross-motions for summary judgment.

I. Factual Background and Procedural History1

This personal injury lawsuit arises from physical injuries suffered by Hawkins following a dirt bike accident at Switchback’s off-road riding and racing facility in Butler, Pennsylvania. Switchback promotes and stages dirt bike races for participants of all skill levels. (Doc. 28 ¶ 1; Doc. 32 ¶ 2). Switchback’s website articulates [**2]  its waiver and consent policy as follows:

Dirtbike/ATV riding is dangerous. Accidents, injuries, and even death can occur. Ride at your own risk! All riders must sign a waiver before they will [be] permitted to ride. Minors will be required to have parental consent. During practice, there are limited to no flaggers. Please, ride safely.

There is no trespassing on Switchback property. Anyone caught trespassing will be prosecuted to the full extent of the law.

All minors that come without their legal parents they must have a NOTARIZED waiver to be able to ride. NO EXCEPTIONS.

(Doc. 30-9 at 1). Switchback’s track manager, Mark Brader (“Brader”), testified that,  [*546]  pursuant to this policy, a minor is not be permitted to ride without a signed parental consent form and waiver. (Brader Dep. 29:5-18, 42:13-21).2 He also testified that it was his responsibility to ensure that minors did not misrepresent their age or otherwise engage in efforts to improperly gain access to the track. (Id. at 56:4-8; see also Doc. 28 ¶ 10).

Hawkins began riding a dirt bike at the age of five or six. (Doc. 32 ¶ 4). He learned the ins and outs of dirt bike riding [**3]  from his father, who raced dirt bikes and often brought Hawkins to spectate at off-road races. (See id. ¶¶ 7-9; Hawkins Dep. 20:5-22:4 (“Hawkins Dep.”)). Hawkins began participating in races himself at “a young age” and even secured sponsorships. (Doc. 32 ¶ 6). He testified that he was aware of the dangers of riding dirt bikes from early on in his experience, that his father instructed him to avoid jumps that “you don’t think you can handle,” and that he wore protective gear to guard against the risk of injury. (Id. ¶¶ 7-8; Hawkins Dep. 21:20-22:21, 38:22-39:25, 133:3-12, 147:18-148:6). He acknowledges that dirt bike riding is “a dangerous sport,” that “you could get hurt” on a dirt bike, and that a fall could cause “injury . . . or even death.” (Hawkins Dep. 25:17-26:4, 38:13-21, 39:14-25, 147:18-148:6). Despite his protective measures, Hawkins has suffered injuries in the past riding a dirt bike. (Doc. 32 ¶ 14; see also Hawkins Dep. 38:22-39:25, 133:3-12). Hawkins had been to Switchback on three prior occasions: once as a spectator, once as pit crew member for his friend Jonathan Franjko (“Franjko”), and once as a rider. (Doc. 32 ¶ 28).

The events preceding Hawkins’ accident on January [**4]  9, 2016 are disputed by the parties and not fully explored in the Rule 56 record. According to Hawkins, he arrived at Switchback with several friends and met with Brader, who asked them whether they had been to Switchback before. (Hawkins Dep. 49:5-12). Hawkins relayed that, after the group responded affirmatively, Brader told them to sign in, accepted their payment, and provided them with wristbands to attach to their helmets to indicate they had been authorized to ride. (See id.) He denied ever being asked to present identification and did not recall being asked his age. (Id. at 133:13-23).

Switchback’s account diverges considerably. According to Brader, Hawkins entered the indoor facility on January 9, 2016 with Franjko, who had a Switchback membership card. (See Brader Dep. 56:9-18). Brader did not recognize Hawkins and thought he appeared to be under the age of 18. (See id. at 56:19-57:2). Brader reported that he told Hawkins he needed to “take home a waiver and fill it out” and that he had to “bring [the waiver] out next time and join us another day.” (Id. at 56:23-57:6). Brader does not recall Hawkins signing in on Switchback’s sign-in sheet for January 9, 2016, but testified that he [**5]  told Hawkins he “could not ride” without waiver and consent forms on file. (Id. at 76:12-77:1). Brader also testified that he does not know how Hawkins ultimately came to access the track on January 9, 2016. (Id. at 91:12-16). It is undisputed that Durbin did not execute a parental consent form allowing Hawkins to participate in dirt bike riding at Switchback. (Doc. 28 ¶ 12).

On January 9, 2016, Hawkins somehow gained access Switchback’s indoor dirt bike racing track. (See Doc. 28 ¶ 13; Doc.  [*547]  32 ¶¶ 1, 13, 31). Hawkins “attempted a jump, without enough speed,” on one of the track’s “table top jumps,” which caused the frame of his dirt bike to hit the ground and “flip [the] bike and Hawkins over.” (Doc. 32 11 13, 31). According to Brader, it was only after this wreck that he became aware that Hawkins had accessed the track. (See Brader Dep. 57:4-11). Brader testified that Hawkins “didn’t look right” and that he offered to call an ambulance. (Id. at 82:10-83:12). Franjko confirmed that Brader asked “a couple times” whether Hawkins wanted medical attention. (See Franjko Dep. 58:12-59:1). Hawkins left Switchback’s facility with his friends without receiving medical attention. (See Doc. 28 [**6]  ¶ 17; Doc. 39 ¶ 17). Hawkins was subsequently treated for injuries including a lacerated kidney and pancreas, trauma to his spleen, a broken hip, a concussion, and post-concussion syndrome. (Doc. 28 ¶ 18). The accident occurred four months before Hawkins’ 18th birthday. (See Doc. 32 ¶ 3).

Hawkins and Durbin commenced this lawsuit on November 15, 2016, asserting one claim of negligence each and one claim of negligence per se together. Plaintiffs contend that Switchback violated its internal policies and its legal duty of care by failing to ensure that Hawkins, a minor, did not access its facility without parental consent. The parties have filed cross-motions for summary judgment on each of the plaintiffs’ claims. The motions are fully briefed and ripe for disposition.

II. Legal Standard

Through summary adjudication, the court may dispose of those claims that do not present a “genuine dispute as to any material fact” and for which a jury trial would be an empty and unnecessary formality. Fed. R. Civ. P. 56(a). The burden of proof tasks the non-moving party to come forth with “affirmative evidence, beyond the allegations of the pleadings,” in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The court is to view [**7]  the evidence “in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor.” Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Only if this threshold is met may the cause of action proceed. See Pappas, 331 F. Supp. 2d at 315.

Courts are permitted to resolve cross-motions for summary judgment concurrently. See Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008); see also Johnson v. Fed. Express Corp., 996 F. Supp. 2d 302, 312 (M.D. Pa. 2014); 10A Charles Alan Wright et al., Federal Practice and Procedure § 2720 (3d ed. 2015). When doing so, the court is bound to view the evidence in the light most favorable to the non-moving party with respect to each motion. Fed. R. Civ. P. 56; Lawrence, 527 F.3d at 310 (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)).

III. Discussion

Pennsylvania substantive law governs the negligence claims raised by the plaintiffs in this diversity action. See Maghakian v. Cabot Oil & Gas Corp., 171 F. Supp. 3d 353, 358 (M.D. Pa. 2016) (citing Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000)); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). Under Pennsylvania law, a plaintiff must prove the “four basic  [*548]  elements of duty, breach, causation, and damages.” Perez v. Great Wolf Lodge of the Poconos LLC, 200 F. Supp. 3d 471, 478 (M.D. Pa. 2016) (quoting Loughran v. Phillies, 2005 PA Super 396, 888 A.2d 872, 874 (Pa. Super. Ct. 2005)). That is, plaintiffs must prove: (1) the existence of a legal duty requiring a certain standard of conduct; (2) breach of that duty by the defendant; (3) a causal connection between defendant’s breach and plaintiffs’ injury; and (4) actual loss or damages. Id. (quoting Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 61 (3d Cir. 2009)).

The parties’ [**8]  cross-motions for summary judgment concenter on two disputes: first, whether Switchback owed a legal duty of care to Hawkins in view of the no-duty rule set forth in Pennsylvania’s Comparative Negligence Act, 42 Pa. Cons. Stat. § 7102, and second, whether Hawkins assumed the risk of injury, negating any duty of care, by engaging in an activity which he understood to be dangerous.3

A. Duty of Care

The parties offer competing perspectives of the applicable duty of care. Switchback maintains that it had no duty to protect Hawkins from risks inherent in off-road dirt bike riding. Switchback invokes the no-duty rule set forth in Pennsylvania’s Comparative Negligence Act, which provides that an operator of an off-road vehicle riding area—such as Switchback—”shall have no duty to protect riders from common, frequent, expected and nonnegligent risks inherent to the activity, including collisions with riders or objects.” 42 Pa. Cons. Stat. § 7102(b.3)(1). Switchback avers that the possibility of falling and suffering injury while engaged in off-road riding is an inherent, expected risk of the activity, and that the no-duty rule forecloses liability in this case.

Plaintiffs rejoin that the no-duty rule has no application here. They assert that [**9]  this case does not concern a duty to protect patrons from the risks of off-road riding once they have accessed the track, but instead concerns Switchback’s alleged negligence in allowing minors to access its facility in the first instance. Plaintiffs rely on the Armstrong County Court of Common Pleas’ decision in Emerick v. Fox Raceway, 68 Pa. D. & C. 4th 299 (Pa. Ct. Com. Pl. 2004), wherein the state court found that off-road riding area operators have a legal duty to develop and follow internal procedures to check a prospective rider’s age and to ensure minor riders do not access their facility without parental consent. Id. at 318. To hold otherwise, the court found, would be “contrary to good public policy.” Id.

Plaintiffs insist that the Emerick decision is on all fours with their claims. The trouble with Emerick is that it fails to engage with or even acknowledge the no-duty rule, which became law on July 15, 2004—a mere six days before the Emerick decision issued. Plaintiffs posit that the lack of discussion of the new rule suggests that the court deemed it inapplicable, given that the case before the court involved policies which allowed a plaintiff to sneak onto the track rather than the conditions of the track itself. Switchback, for its part, insists [**10]  that the court was either unaware of the new enactment or deemed it inapplicable because the accident at issue occurred before the statute’s effective date.

We cannot ascribe weight to the Emerick decision when it failed to engage with this transformative legislative enactment.  [*549]  The court’s opinion expressly states that it is grounded largely in public policy—but the state legislature six days prior explicitly and substantially transformed the Commonwealth’s negligence policy as concerns tort liability for operators of off-road riding areas. In our view, the failure of the Emerick court to account for the no-duty rule severely diminishes its value as precedent. Nonetheless, because we determine infra that the assumption of the risk doctrine negates any duty that Switchback may have had to protect Hawkins, we need not determine, as a matter of law, what duty of care remains for operators of off-road riding areas with respect to minors attempting to access their facilities.

B. Assumption of the Risk

Most tort claims in Pennsylvania are governed by the comparative negligence doctrine. See 42 Pa. Cons. Stat. § 7102(a). But the legislature expressly preserved assumption of the risk as a defense in two categories of activities: [**11]  off-road vehicle riding, see id. § 7102(b.3)(2), and downhill skiing, see id. § 7102(c)(2). Specifically, as pertains off-road vehicle riding areas, the Comparative Negligence Act states: “The doctrine of knowing voluntary assumption of risk shall apply to all actions to recover damages for negligence resulting in death or injury to person or property brought against any off-road vehicle riding area operator.” Id. § 7102(b.3)(2). The assumption of the risk doctrine operates to negate any legal duty ascribed to those plaintiffs seek to hold liable: “to the extent the injured plaintiff proceeded in the face of a known danger, he relieved those who may have otherwise had a duty, implicitly agreeing to take care of himself.” Montagazzi v. Crisci, 2010 PA Super 78, 994 A.2d 626, 635 (Pa. Super. Ct. 2010) (citing Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 124 (Pa. 1983)). The doctrine operates as a “no-duty” rule; that is, for those facilities for which the legislature preserved the assumption of the risk defense, the owner or operator “has no duty to protect the user from any hazards inherent in the activity.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1185-86 (Pa. 2010) (citations omitted).

Pennsylvania courts apply a subjective standard when determining whether a minor assumed the risk of a given activity. That is, the court must ask what the “particular minor plaintiff knows, sees, hears, comprehends, and appreciates” [**12]  with respect to the risk involved. Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 269 (3d Cir. 2008) (quoting Berman v. Phila. Bd. of Educ., 310 Pa. Super. 153, 456 A.2d 545, 550 (Pa. 1983)). To grant summary judgment based on an assumption of the risk defense, the court must find that the plaintiff (1) “consciously appreciated the risk” attending the activity, (2) assumed the risk of injury by nonetheless engaging in the activity, and (3) sustained an injury that was “the same risk of injury that was appreciated and assumed.” Zeidman v. Fisher, 2009 PA Super 161, 980 A.2d 637, 641 (Pa. Super. Ct. 2009) (quoting Hadar v. Avco Corp., 2005 PA Super 326, 886 A.2d 225, 229 (Pa. Super. Ct. 2005)). When reasonable minds could not disagree, the question of assumption of the risk is for the court. See Carrender, 469 A.2d at 124; see also M.D. v. Ski Shawnee, Inc., No. 14-CV-1576, 2015 U.S. Dist. LEXIS 81392, 2015 WL 3866050, at *4 (M.D. Pa. 2015) (citing Restatement (Second) of Torts § 469 cmt. e (Am. Law Inst. 1965)).

No court has explored the assumption of the risk doctrine in the context of off-road riding areas following the 2004 amendment to the Comparative Negligence Act. But several courts have interpreted the doctrine as pertains to downhill skiing. The Pennsylvania Supreme Court has held that retention of the assumption of the risk doctrine in that context reflects the legislature’s intent that a ski resort  [*550]  owner owes no duty of care to patrons for any risk “‘inherent’ in downhill skiing.” Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 344 (Pa. 2000); see also Bjorgung, 550 F.3d at 268. Knowledge of the inherent risk has been deemed the sine qua non of an assumption of the risk defense. See M.D., 2015 U.S. Dist. LEXIS 81392, 2015 WL 3866050, at *3. The plaintiff’s age and relative degree of experience [**13]  with the activity are relevant in determining whether that particular plaintiff was aware of a given risk. See id. (citing Bjorgung, 550 F.3d 263; Chepkevich, 607 Pa. 1, 2 A.3d 1174; Hughes, 563 Pa. 501, 762 A.2d 339). We can conceive of no reason why these principles, developed in the analogous context of downhill skiing, should not apply with equal force to negligence claims involving off-road riding areas. Compare 42 Pa. Cons. Stat. § 7102(b.3)(1)-(2) with id. § 7102(c)(1)-(2).

We must first query whether the risk of falling during a jump and suffering serious injury is inherent in the activity of off-road riding. An “inherent risk” is one which “cannot be removed without altering the fundamental nature” of the activity. Bjorgung, 550 F.3d at 268-69 (quoting Crews v. Seven Springs Mountain Resort, 2005 PA Super 138, 874 A.2d 100, 105 (Pa. Super. Ct. 2005)). The Comparative Negligence Act identifies “collisions with riders or objects” as risks inherent in off-road riding. 42 Pa. Cons. Stat. § 7102(b.3)(1). Common sense dictates that the risk of a fall or collision that does not involve another rider or object is equally inherent in the activity. Indeed, Hawkins’ own experience bears this out—he testified that his accident on January 9, 2016, was not his first; that he knew from personal experience that attempting jumps carried a certain risk; and that he wore protective gear in an attempt to mitigate that risk. (Hawkins Dep. 38:22-39:25, 133:3-12, 147:24-148:6). We find that the [**14]  risk of suffering serious injury when attempting a dirt bike jump is one which “cannot be removed without altering the fundamental nature” of dirt bike riding and is thus inherent in the activity. See Bjorgung, 550 F.3d at 268-69 (quoting Crews, 874 A.2d at 105).

We further conclude that reasonable persons could not debate whether Hawkins appreciated and knowingly assumed that risk. Hawkins was nearly 18 years old at the time of the accident and had been riding dirt bikes for more than 12 years. He was a vastly experienced rider. He was well aware that dirt bike riding carried the risk of serious injury and even death. Indeed, Hawkins acknowledged that a dirt bike presents a certain danger “even when the bike’s on the ground.” (Hawkins Dep. 92:4-93:2). Given this unequivocal record testimony, we have little difficulty finding that this particular rider—plaintiff Kameron Hawkins—knew, appreciated, and assumed the risks attending off-road dirt bike riding.

Anticipating the defense’s strategy sub judice, plaintiffs contend that a minor cannot ever assume the risk of a particular activity, again invoking Emerick, in which the Armstrong County Court of Common Pleas held that, because a minor plaintiff is incapable of entering into a contract [**15]  and cannot expressly waive liability for a given activity, a minor cannot impliedly assume that same risk by his or her actions. Emerick, 68 Pa. D. & C. 4th at 319. The state court provided no precedent in support of this sweeping conclusion. In this respect, Emerick
runs counter to the great weight of authority in the state courts and in the Third Circuit Court of Appeals which have held consistently that a minor is capable of assuming the risk of a dangerous activity. See, e.g., Bjorgung, 550 F.3d at 268-69 (quoting Berman, 456 A.2d at 550); Montagazzi, 994 A.2d at 635-36; Berman, 456 A.2d at 550; see also Johnson v. Walker, 376 Pa. Super. 302, 545 A.2d 947, 949-50 (Pa. Super. Ct. 1988).

 [*551]  The undisputed Rule 56 record establishes beyond debate that Hawkins knew, appreciated, and assumed the risk of injury attending off-road dirt bike riding. He was an experienced dirt bike rider who was fully aware that attempting a jump on a dirt bike carried with it an inexorable risk of injury. And he proceeded to attempt a jump on Switchback’s indoor track notwithstanding that understood risk. Switchback accordingly had no duty to protect Hawkins on January 9, 2016. We will grant summary judgment to Switchback on Hawkins’ negligence claim. Because Durbin’s claim for economic damages is derivative of Hawkins’ individual claim, we will likewise grant summary judgment to Switchback on Durbin’s claim.

IV. Conclusion

We are [**16]  not unsympathetic to the serious injuries suffered by Hawkins. But the unequivocal fact remains that Hawkins—having more than a decade of experience riding on similar off-road tracks—voluntarily engaged in the dangerous sport of dirt bike riding knowing full well the risks of the activity. Switchback is not legally responsible for the injuries that Hawkins suffered at its facility. Accordingly, the court will grant summary judgment to Switchback on plaintiffs’ negligence claims. An appropriate order shall issue.

/s/ Christopher C. Conner

Christopher C. Conner, Chief Judge

United States District Court

Middle District of Pennsylvania

Dated: September 12, 2018

ORDER & JUDGMENT

AND NOW, this 12th day of September, 2018, upon consideration of the parties’ cross-motions (Docs. 27, 31) for summary judgment, and the parties’ briefs in support of and opposition to said motions, (Docs. 29, 33, 36, 38, 41), and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:

1. Plaintiffs’ motion (Doc. 27) for summary judgment is DENIED.

2. Defendant’s motion (Doc. 31) for summary judgment is GRANTED as follows:

a. Judgment is ENTERED in favor of defendant and against plaintiffs on [**17]  the negligence claims set forth in Counts I and II of plaintiffs’ complaint.

b. The negligence per se claim set forth in Count III of plaintiffs’ complaint is DISMISSED.

3. The Clerk of Court is directed to CLOSE this case.

/s/ Christopher C. Conner

Christopher C. Conner, Chief Judge

United States District Court

Middle District of Pennsylvania

Dated: September 12, 2018


Pennsylvania Comparative Negligence Statute

Pennsylvania Statutes

42 Pa.C.S. JUDICIARY AND JUDICIAL PROCEDURE

Part VII CIVIL ACTIONS AND PROCEEDINGS

Chapter 71 GENERAL PROVISIONS

§ 7102 Comparative negligence

(a)    General rule.–In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

(a.1)    Recovery against joint defendant; contribution.

(1)    Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection (a.2).

(2)    Except as set forth in paragraph (3), a defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability.

(3)    A defendant’s liability in any of the following actions shall be joint and several, and the court shall enter a joint and several judgment in favor of the plaintiff and against the defendant for the total dollar amount awarded as damages:

(i)    Intentional misrepresentation.

(ii)    An intentional tort.

(iii)    Where the defendant has been held liable for not less than 60% of the total liability apportioned to all parties.

(iv)    A release or threatened release of a hazardous substance under section 702 of the act of October 18, 1988 (P.L. 756, No. 108) , known as the Hazardous Sites Cleanup Act.

(v)    A civil action in which a defendant has violated section 497 of the act of April 12, 1951 (P.L. 90, No. 21), known as the Liquor Code.

(4)    Where a defendant has been held jointly and severally liable under this subsection and discharges by payment more than that defendant’s proportionate share of the total liability, that defendant is entitled to recover contribution from defendants who have paid less than their proportionate share. Further, in any case, any defendant may recover from any other person all or a portion of the damages assessed that defendant pursuant to the terms of a contractual agreement.

(a.2)    Apportionment of responsibility among certain nonparties and effect. –For purposes of apportioning liability only, the question of liability of any defendant or other person who has entered into a release with the plaintiff with respect to the action and who is not a party shall be transmitted to the trier of fact upon appropriate requests and proofs by any party. A person whose liability may be determined pursuant to this section does not include an employer to the extent that the employer is granted immunity from liability or suit pursuant to the act of June 2, 1915 (P.L. 736, No. 338), known as the Workers’ Compensation Act. An attribution of responsibility to any person or entity as provided in this subsection shall not be admissible or relied upon in any other action or proceeding for any purpose. Nothing in this section shall affect the admissibility or nonadmissibility of evidence regarding releases, settlements, offers to compromise or compromises as set forth in the Pennsylvania Rules of Evidence. Nothing in this section shall affect the rules of joinder of parties as set forth in the Pennsylvania Rules of Civil Procedure.

(b)    Deleted by 2011, June 28, P.L. 78, No. 17, § 1, imd. effective.

(b.3) Off-road vehicle riding./para>

(1)    Off-road vehicle riding area operators shall have no duty to protect riders from common, frequent, expected and nonnegligent risks inherent to the activity, including collisions with riders or objects.

(2)    The doctrine of knowing voluntary assumption of risk shall apply to all actions to recover damages for negligence resulting in death or injury to person or property brought against any off-road vehicle riding area operator.

(3)    Nothing in this subsection shall be construed in any way to abolish or modify a cause of action against a potentially responsible party other than an off-road vehicle riding area operator.

(c)    Downhill skiing

(1)    The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth. It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.

(2)    The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (a.1).

(c.2) Savings provisions.–Nothing in this section shall be construed in any way to create, abolish or modify a cause of action or to limit a party’s right to join another potentially responsible party.

(d)    Definitions.–As used in this section the following words and phrases shall have the meanings given to them in this subsection:

“Defendant or defendants.” Includes impleaded defendants.

“Off-road vehicle.” A motorized vehicle that is used off-road for sport or recreation. The term includes snowmobiles, all-terrain vehicles, motorcycles and four-wheel drive vehicles.

“Off-road vehicle riding area.” Any area or facility providing recreational activities for off-road vehicles.

“Off-road vehicle riding area operator.” A person or organization owning or having operational responsibility for any off-road vehicle riding area. The term includes:

(1)    Agencies and political subdivisions of this Commonwealth.

(2)    Authorities created by political subdivisions.

(3)    Private companies.

“Plaintiff.” Includes counter claimants and cross-claimants.

Cite as 42 Pa.C.S. § 7102

History. 1978, April 28, P.L. 202, No. 53, § 10(89), effective June 27, 1978. Amended 1980, Oct. 5, P.L. 693, No. 142, § 222(a), effective in 60 days; 1982, Dec. 20, P.L. 1409, No. 326, art. II, § 201, effective in 60 days; 2002, June 19, P.L. 394, No. 57, § 2, effective in 60 days; 2004, July 15, P.L. 736, No. 87, § 5, imd. effective; 2011, June 28, P.L. 78, No. 17, § 1, imd. effective.


Creating Your Risk Management Plan

Everyone tells you, you must have a Risk Management Plan. One of the first things a plaintiff is going to look at in a lawsuit is a Risk Management plan. So we have a document that is a two-edged sword to help and possibly hurt your business. What do you do?

Risk management plans or Emergency Action Plans, Emergency Response Plans, or many others such as names, are put together as procedures to follow when you have a problem. People expect you to have a Risk Management plan and people expect you to follow your Risk Management plan. Failing to follow your Risk Management plan can create liability for your business.

The first problem is, during an emergency, you don’t have time to run get the book and see what to do next.

A Risk Management Plan must:

  • Work
  • Be Understood
  • Not come back to haunt you.

Your front line employees will not know or remember a complicated Risk Management plan. They need to either be able to reference or respond with very few steps. Your front-line employees are also going to be the face of your Risk Management plan because they will be the ones to discover the problem and start to implement the plan.

Risk Management plans developed and understood by management are job security, not litigation prevention programs.

A Risk Management plan is not a management-level plan. It is a plan for the people who will be using it. Those employees making the phone calls, dealing with the problems and helping the victims are the people who must know and be able to execute the plan.

The next major issue I find with Risk Management plans is, the plan is written to cover every possible scenario. If you start today when you sell your business or retire you still won’t be done writing down everything that can go wrong with your business. Once you get that type of plan done, the emergency will be over or your business will no longer exist by the time you find the solution or response in your plan.

Write a plan that works so you can enjoy your work, not an anchor that drags you down each day.

As soon as you start writing your Risk Management plan you need to start editing and updating your plan.

As an example: You write a plan based on employees who have been with you for a while, you trust and can respond to about everything the correct way. A couple of years later, you have new employees who have no idea what to do. Your Risk Management plan has to be written to work with both types of employees.

State and Federal regulations are going to change; your insurance is going to change, and you are going to change. Consequently, your Risk Management plan must be flexible enough to work, without being re-written, to deal with changes, If not you’ll never leave your office, you’ll just be constantly dealing with changes to the plan, let alone ever dealing with an emergency.

When has “Business as Usual” actually been true in your business?

  • The biggest failure of a Risk Management plan is they are too complicated and consequently, only the person who wrote the plan can follow it. Your plan must work for your employees; Not your risk manager, your lawyer or your insurance and never just for your industry.
  • Write your plan to be used, not to be a way to use your imagination about what could possibly go wrong.
  • You cannot write a plan that covers every scenario. If you could it would occupy one entire wall of your office in three Ring Binders.

And even then you plan will not cover everything. So why waste the time, energy and money in trying to write a plan that covers everything. You can’t. Inevitably, it is not going to cover the problem that you are having. It just seems to work that way.

I’ve yet to see a Risk Management plan that was written to cover the emergency that actually occurred.

You need a plan that:

  • Can be remembered and executed by all your employees.
  • Each employee’s part of the plan can be easily carried with them for reference.
  • The employee has access to and the information necessary to communicate the need for the plan and their responsibilities under the plan.
  • The plan works for every incident possible.

Consequently:

  • Your plan for the front-line employees should fit on a 3X5 card on one side’
    • The other side of the plan has phone numbers of the people that employee is supposed to contact to activate the plan (or radio channels).
  • The only person who may have more of a plan than on a 3X5 card is going to be the person at the top to work on follow up.
  • Basically, an employee’s plan is going to be stop the bleeding, stabilize, call 911, and call the supervisor.
  • Your plan must be something that can be executed without referring to anything for more than 30 seconds.

Your Risk Management plan must be written by your company, which means every person in the company, understood by every person and executable by everyone. Anything more is just going to be ignored when EMS, USFS or any other responding agency comes on the scene but used against you in court.

I love Risk Management plans written by management. They train employees in the plan, with the employees wondering if the people writing the plan have ever seen the work they do. Risk management plans need to be dirty because the people who have to follow the plans should be writing them, and they don’t have an office to keep the plan clean.

Risk Management Plans only work if the people executing the Plan Know How to Work.

Quit writing and re-writing your plan and start training your employees on what to do if something does not go as planned.

Score 1 Point for Each Correct Answer

  • You have a Risk Management Plan.
  • Employees know there is a Risk Management Plan.
  • The Employees know the Risk Management Plan.
  • Employees know their position & responsibility in the Risk Management Plan.
  • Employees know the responsibilities of the person above and below them in the Risk Management Plan.
  • The Employees carry their responsibilities in the Risk Management Plan with them.
  • The Employees carry with them all information they need to communicate if there is a problem to the necessary people in the Risk Management Plan.
  • The Risk Management Plan has been updated in the past 12 months.
  • The Employees have been trained in the Risk Management Plan in the past 12 months.
  • A mock disaster has been held using the Risk Management Plan.
  • You have identified a team to deal with the human issues of an incident after the incident is under control.
  • Senior Managers have gone through the same training and drills as the employees.
  • You have not had to use the Risk Management Plan.

Grading your plan!

0-1 Point:    Lock the doors and go home now.

2-5 Points:    Prepare to lose a lawsuit

6-9 Points    Good, but you can do better.

10-12 Points    Not bad! Impressive

13 Points    Excellent

Your score is important; however, it may not be the biggest issue you face you’re your Risk Management plan. The biggest problem facing outdoor recreation and adventure travel businesses is not the issue of having a plan. It is creating a plan that is workable, able to be used by employees and one that will NOT haunt you later.

Risk Management is education, not paperwork!

What do you think? Leave a comment.

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Push a release too far, in a state that is not sure Releases should be valid, and you provide the court with the opportunity to void releases and indemnification in the state.

Non-mother brought a group of kids to climbing gym and signed release for the kids. One was hurt, and the climbing wall sued the non-mother for indemnification in the release for the damages of the injured child.

Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

State: Connecticut; Superior Court of Connecticut

Plaintiff: Cindy Cannon PPA Emma Cannon (minor)

Defendant: Rock Climb Fairfield, LLC, Carabiners Fairfield, LLC and Matthew Conroy

Defendant Third Party Plaintiffs: Kate Licata, Indemnifier

Plaintiff Claims: negligent in supervising the rock climbing activities

Defendant Defenses: release and indemnification

Holding: For the Defendant Third Party Plaintiff, Indemnifier

Year: 2020

Summary

When litigating a case, you don’t look to the future effects of what you are doing. You look at winning. That is the only thing, your client and the client’s insurance company want. That is the only thing as an attorney you are allowed to do. You must represent the client and win.

In this case, the defendant used every argument they could to try to win, and not only lost the case, but voided releases for recreation in the state an eliminated any value the indemnification clause might have had in a release.

Facts

The case arises from an incident where the minor plaintiff, Emma Cannon, fell from a climbing wall at the Rock Climb defendant’s indoor rock climbing facility located in Fairfield, Connecticut. The minor plaintiff claims she sustained personal injuries. On behalf of her minor child, Cindy Cannon instituted the present action alleging the facility, its agents and employees were negligent in supervising the rock climbing activities, thereby causing the minor plaintiff’s injuries. The defendants have filed an answer and eight special defenses to the amended complaint.

Thereafter, the Rock Climb defendants filed an apportionment complaint against the defendant Kate Licata, who brought the minor plaintiff, Emma Cannon, and several other girls to the facility for a group birthday party event. The apportionment complaint is dated February 6, 2019. The apportionment complaint alleges that Licata was negligent in numerous ways and seeks an apportionment of liability and damages as to Licata for the percentage of negligence attributable to her. The apportionment complaint is not the subject of the motion for summary judgment that is presently before the court. The Rock Climb defendants also filed a cross claim against Licata alleging contractual and common-law indemnity. The cross claim, which is the subject of Licata’s motion for summary judgment, is dated February 22, 2019.

The cross claim alleges that the Rock Climb defendants, who are the third-party plaintiffs, require all invitees to its facility to complete a “Release of Liability and Assumption of Risk” form before participating in rock climbing activities. If the participant is a minor, the form must be signed by the minor’s parent or court-appointed guardian, which Licata was not. The release form contains language to the effect that the parent or guardian of the minor has explained the inherent risks of the activity to the minor and the minor understands the said risks and that the minor, nonetheless, wishes to participate in the activities. The release form further provides that “the parent of the minor visitor . . . forever discharge, and agree to indemnify . . . Carabiners Fairfield, LLC, its agents, owners, officers, volunteers, employees, and all other persons or entities acting in any capacity on its behalf . . . from any and all claims, suits, demands, causes of action, which are in any way connected with my or the minor visitor’s visit to the RCF activity site . . . My agreement of indemnity is intended to include claims arising out of losses suffered by me (an adult climber or parent) or the child and losses caused by me or the child. The agreements of indemnity and release include claims of negligence . . . of a Released Party.” The Rock Climb defendants allege that Licata completed an online version of the Release form and electronically signed it on behalf of the minor plaintiff Emma Cannon on October 3, 2016. Thus, Licata is contractually obligated to defend and indemnify the Rock Climb defendants for the injuries and damages resulting from Emma Cannon’s fall at the Rock Climb defendants’ facility pursuant to General Statutes §52-102a.5

The Rock Climb defendants also allege Licata is liable for common-law indemnification, claiming that any injuries sustained by the minor plaintiff were proximately caused, in whole or part, by Licata’s negligence and carelessness in multiple ways. Among these allegations are failing to supervise and monitor the minor; failing to instruct the minor; and failing to warn the minor of the dangerous nature and risks of the activity. Lastly, the Rock Climb defendants argue that a substantial amount of discovery remains outstanding and various issues of fact are yet to be settled, and therefore, it argues that Licata’s summary judgment motion should be denied.

The defendant argued on appeal that:

Licata argues that she was not given any opportunity to negotiate the terms of the Release document, which was presented to her on a “take or leave it” basis.

It was the Rock Climb defendants who were responsible for training Licata and/or the minor plaintiff to ensure safe rock climbing, as Licata claims she did not possess the knowledge, experience or authority to ensure the rock climbing facility was in a safe condition.

Additionally, Licata argues she was not in control of the situation on the date in question, and the cross claim does not even allege she was in control of the situation. Therefore, any claim for common-law indemnification also fails as a matter of law.

These three arguments made by the defendant are critical in how the court viewed the situation and more importantly the realities of using this type of document in a recreation case.

Analysis: making sense of the law based on these facts.

The court first set out the requirements to win a motion for summary judgment. In doing so it defined the term “a material fact.” “A material fact is a fact that will make a difference in the result of the case….”

“[a] genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.

Summary judgment will not be granted if there is a material fact in question. So knowing the definition is important since most summary judgement claims revolve around whether there is a material fact that must be adjudicated.

The court then looked at the indemnification clause in the release; contractual indemnification. Under Connecticut law, indemnification is defined as:

Indemnity involves a claim for reimbursement in full from one who is claimed to be primarily liable.” “A party may bring an indemnification claim based on the terms of an indemnity agreement . . . [A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification

Indemnification agreements are contracts and as such construed under the principles of contract law.

The essential elements for a cause of action based on breach of contract are (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party, and (4) damages . . . [and] causation

Additionally, for a contract to be valid, there must be mutual assent between the parties to create a contract and the parties to the contract must be reasonably clear.

The court then looked at the indemnification language in the release in this case.

Paragraph 3 is titled “Release and Indemnity. That paragraph notes that the signor of the agreement is an adult visitor or parent of a minor visitor and that the signor releases and discharges and agrees to indemnify the RCF defendants from all claims, suits, demands or causes of action, which are connected to the minor’s visit to and participation in, RCF activities. The agreement is intended to include claims arising out of losses suffered by the child and losses caused by the signor or the child. By signing the agreement, the signor agrees to indemnify and release claims of negligence of the RCF defendants.

Lastly, paragraph 5 of the Release notes that the signor acknowledges that if the minor visitor for whom the signor has signed their signature, is hurt and files a lawsuit, the signor will protect the released and indemnified RCF defendants from any claims of the minor visitor.

The court did point out, but did not act upon the issue that release was not signed by anyone at the gym.

The court then looked at release law in Connecticut. The Supreme Court of Connecticut set forth three requirements for a release in a recreational activity to be valid.

(1) the societal expectation that family oriented activities will be reasonably safe; (2) the illogic of relieving the party with greater expertise and information concerning the dangers associated with the activity from the burden of proper maintenance of the snowtubing run; and (3) the fact that the release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and offered to the plaintiff on a “take it or leave it” basis.

The court then found that the release in this case violated public policy in Connecticut.

We conclude that, based on our decision in Hanks, the totality of the circumstances surrounding the recreational activity of horseback riding and instruction that was offered by the defendants demonstrates that the enforcement of an exculpatory agreement in their favor from liability for ordinary negligence violates public policy and is not in the public interest. First, similar to the situation at issue in Hanks, the defendants in the present case provided the facilities, the instructors, and the equipment for their patrons to engage in a popular recreational activity, and the recreational facilities were open to the general public regardless of an individual’s ability level. Indeed, the defendants acknowledged that, although the release required riders to indicate their experience level, it also anticipated a range in skills from between “[n]ever ridden” to “[e]xperienced [r]ider,” and that the facility routinely had patrons of varying ability levels. Accordingly, there is a reasonable societal expectation that a recreational activity that is under the control of the provider and is open to all individuals, regardless of experience or ability level, will be reasonably safe.

Meaning, a release cannot be used to protect the provider of a recreational activity that is open to the public and requires skill because there is a general expectation that those activities are safe. On top of that, the plaintiff lacked any knowledge, experience or skill to determine if the defendants’ facility were in good working order or safe.

To the contrary, it was the defendants, not the plaintiff or the other customers, who had the “expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone [could] properly maintain and inspect their premises, and train their employees in risk management.” In particular, the defendants acknowledged that they were responsible for providing their patrons with safe horses, qualified instructors, as well as properly maintained working equipment and riding surfaces.

The court looked at the statements from the guest’s point of view and found it illogical that the guest could make those judgements.

As we concluded in Hanks, it is illogical to relieve the defendants, as the party with greater expertise and information concerning the dangers associated with engaging in horseback riding at their facility, from potential claims of negligence surrounding an alleged failure to administer properly the activity.

The defendant also argued the release was an adhesion contract.

Specifically, we have noted that the most salient feature of adhesion contracts is that they are not subject to the normal bargaining processes of ordinary contracts, and that they tend to involve a standard form contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who has little choice about the terms.

Because the plaintiff could not negotiate the release provisions, and her only option was not to participate, because of that, the court concluded the contract was an adhesion contract.

The court circled back to the knowledge and skill of the guest by looking at the facts, that the guests and injured child did not bring any equipment or provided any training, guidance and/or supervision to the children under the third party plaintiff’s care.

Neither the minor plaintiff or Licata provided any of the equipment to be used. Licata, herself, did not provide training, guidance or supervision to the minors, including the minor plaintiff. Licata possessed no special knowledge regarding rock climbing or bouldering activities including training and safety procedures other than an initial orientation by RCF employees. Maklad testified at her deposition that the orientation lasted only five to ten minutes. The RCF defendants/third-party plaintiffs admit that there was zero expectation that Licata would “train and guide climbers” or to inspect various facility equipment. RCF argues that they did expect that parents and guardians would supervise children.

Because the third party plaintiff had no knowledge or skill concerning climbing, she could not have been supervising the children while climbing, it does not matter whether or not she was “adequately supervising” the children because she could not. This created another whole in the indemnification argument and another issue that must be decided by the trial court.

This brought the court back to the indemnification issue.

To hold a third party liable to indemnify one tortfeasor for damages awarded against it to the plaintiff for negligently causing harm to the plaintiff, a defendant seeking indemnification must establish that: (1) the third party against whom indemnification is sought was negligent; (2) the third party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting harm; (3) the third party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the third party’s negligence, had no reason to anticipate it, and reasonably could rely on the third party not to be negligent.”

The definition in Connecticut basically ruled out the third party plaintiff as a possible indemnifier for the gym.

“Our Supreme Court has defined exclusive control of the situation, for the purpose of a common-law indemnification claim, as exclusive control over the dangerous condition that gives rise to the accident.”

Since the third party defendant did not have any control over the situation because she lacked the knowledge, experience and skill to climb or supervise anyone else climbing and because she, and the children went to the gym because of the gym’s knowledge, skill, ability to see risks and the gym had the needed equipment, there could not be indemnification.

On top of that, because the court found the climbing gym had done such a poor job of prosecuting it’s indemnification claim the court found the claim had been abandoned.

The third-party plaintiffs, the RCF defendants, have produced little to no credible evidence; nor have they alleged or argued that Licata was in control of the situation to the exclusion. “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.”

That means the indemnification claim could not be brought back up at trial.

So Now What?

There is a dozen interesting statements found in this release that when brought to the light of reality will cause or should cause concern for the way some releases are written. Not legal as much as how the assumptions on how the law would work when applied to the facts which the court rejected.

  1. Having signor of the release accept the equipment and facility as is or to be in good shape, was determined to be a joke. The signor was coming to the facility for their expertise and had no expertise to make that determination on their own.

You don’t want to have your release thrown out because a clause in the release, no matter who it protects is false.

  1. Having the signor of the release agree that they are in control of the children they bring to the gym was found ridiculous for the same reasons.
  2. The Indemnification clause was not written to follow Connecticut law and as such was found to be worthless.
    1. Worse when argued by the defendant gyms, it was found the language, and their arguments were so futile as to be abandoned.
  3. The release placed so many burdens, which the signor could not get around; the release was found to be void because it violated public policy.

I have yet to read a case where an indemnification clause has been upheld in a release, unless the circumstances were very odd and the parties knowledgeable about what they were agreeing too.

Are there situations where there is a need, and you can properly write an indemnification clause in a release. Yes. However, the injured part will be indemnifying you not for your losses, but for the losses you incur when their actions involve a third party.

An example might be you are billed for the cost of search and rescue under your permit or concession agreement to find the lost guest. A well-written indemnification clause can be used to recover for the costs of these expenses, because the defendant did not cause the loss and is not trying to recover for its losses, only the losses the guest has made the defendant liable for.

The three arguments made by the defendant set forth in the summary will soon be present in many third party defenses I predict. They are simple yet set forth the reality of the people signing the indemnification clauses. Uniformly, the courts have struck down indemnification clauses when used to recover money for a plaintiff’s claim.

For more articles on Indemnification Clauses see:

Indemnification between businesses requires a contract outlining the type of indemnification and a certificate of insurance from one party to the other so the insurance company knows it is on the hook.

New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky-diving case.

Indemnification agreements? What are you signing?

One case where an indemnification agreement was upheld:

A federal district court in Massachusetts upholds indemnification clause in a release.

This case will have far reaching effect in other states.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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Collecting accident reports without doing something with the reports guarantees you will lose a lawsuit and in this case possibly for gross negligence.

Climbing gym had a collection of accident reports that were based on the same set of facts. Failure to act on the reports and solve the problem was enough proof for the Utah appellate court to hold the actions of the defendant gym were possibly grossly negligent.

Howe v. Momentum LLC, 2020 UT App 5, 2020 Utah App. LEXIS 1, 2020 WL 34996

State: Utah; Court of Appeals of Utah

Plaintiff: Scott Howe

Defendant: Momentum LLC

Plaintiff Claims: Momentum was grossly negligent. He alleged that Momentum, “with a knowing and reckless indifference and disregard for the safety of [Howe] and other members of [Momentum], concealed, or caused to be concealed, the defects in their floor padding by placing mats over the defective area

Defendant Defenses: the actions of the defendant did not rise to the level of gross negligence.

Holding: For the Plaintiff

Year: 2020

Summary

Incident and Accident reports that have not been acted on and the issues that caused the accidents which had not been fixed, were proof that the defendant climbing gym possibly acted in a grossly negligent way.

Facts

Momentum is an indoor-climbing facility with a separate area for bouldering. The bouldering area’s concrete floor is covered by approximately twelve inches of foam padding overlain by thick vinyl, known as an “impact attenuation surface.” In the years after Momentum’s 2007 opening, some of the vinyl began to tear and separate. In late September 2011, Momentum had “[a]t least one” tear repaired with a welded vinyl patch.

But Momentum’s management team deemed these tear patches a hazard for tripping, so it placed modular one-inch-thick mats over certain areas of the bouldering area floor that were showing signs of wear or damage. The mats are not designed to be anchored to the underlying pad and they would sometimes move when people landed on them. Because the mats tended to move, Momentum staff “monitored the floor regularly to try to keep the [mats] in place.” In addition to this action, a Momentum employee altered the routes above those areas by reconfiguring and reducing the number of foot-and hand-holds to reduce customer use of the areas with worn and damaged padding.

Over the years—and prior to Howe’s injury—Momentum’s patrons had reported incidents, some of which involved injuries, which alerted Momentum to the fact that the padding in the bouldering area was worn and damaged in some places. Before Howe was injured, five incidents were reported before Momentum began using the mats and another eight were reported thereafter. Each of these injuries involved a climber dropping from the bouldering wall or “slab area” to the floor below and, upon landing, pushing a foot through the floor padding, making contact with the concrete floor below, either rolling or twisting an ankle in the process.

In March 2012, Howe was bouldering at Momentum. After finishing his bouldering route, Howe dropped off the wall to the floor below. As he made contact with the floor, his “left foot impacted the mat on top of the padded floor, causing the mat to move. As the mat moved, it exposed the padded floor beneath. Concealed under the mat, the cover of the pad was split in a straight line, exposing the abutting edges of pads below.” When Howe’s “right foot impacted the top of the two abutting pads, [his] foot passed between the two abutting pads to the floor beneath.” As a result of the contact with the concrete, Howe broke his right ankle.

Howe sued, asserting—among other things—that Momentum was grossly negligent. He alleged that Momentum, “with a knowing and reckless indifference and disregard for the safety of [Howe] and other members of [Momentum], concealed, or caused to be concealed, the defects in their floor padding by placing mats over the defective area.”

The defendant Momentum filed a motion for summary judgement to dismiss the gross negligence claims of the plaintiff. The trial court judge ruled the plaintiff had shown enough action and inaction on the part of the gym that the plaintiff could proceed to trial on a claim of gross negligence. The defendant appealed this ruling.

The decision also looks at the qualifications of the plaintiff’s expert witness. However, there is nothing in the decision that warrants review here.

Analysis: making sense of the law based on these facts.

The court’s analysis of the law was quite good and balanced. It’s application of the law to the facts was clear cut. The court defined gross negligence under Utah’s law as “…the failure to observe even slight care….

A broader definition was defined as:

“…the essential evidence needed to survive a defendant’s motion for summary judgment on a gross negligence claim” is “evidence that the defendant’s conduct dramatically magnified the risk of harm to the plaintiff….

The court concluded its review of gross negligence with this statement about the actions of the defendant. “…Momentum’s failure to take further action in the face of eight additional incidents creates questions of fact about whether it was grossly negligent….

The court then followed with this statement.

It is beyond question that a plaintiff who can demonstrate that a defendant has taken no action in response to injury incidents will have likely made out at least a prima facie case of gross negligence,….

At this point, in the opinion it is clear the court looked at Momentum’s failure to act after collecting more than 13 incident reports as gross negligence.

It is also clear that the court believes that failure to act on the defendant’s own incident reports is a major failure of the defendant. Why have accident and incident reports if you do nothing about them.

These acts arguably show that Momentum exercised slight care in the beginning and was therefore not completely indifferent to the consequences of allowing climbers to use the bouldering area given the condition of the padding.

The court gave the climbing gym some benefit because after the first five accidents, they placed additional padding over the torn spots. However, having eight additional incidents, with the torn padding was more than the court would allow.

The court then summed up the accident reports that the defendant compiled.

…onto the floor below, the mat moved, their feet were caught in the crack in the foam padding, and their ankles were injured. Under these circumstances, the question of whether Momentum’s continued use of the mats constituted gross negligence presents a disputed issue of material fact.

The court found that collecting injury reports, which almost identical fact situations and not doing anything about it were proof of gross negligence. The appellate court held the trial court was correct in denying the defendant climbing gym’s motion for summary judgment to dismiss the gross negligence claims.

So Now What?

Incident reports are legal explosives just waiting to go off when a plaintiff’s attorney gets them. If you collect them, then you MUST do something with them.

Each report MUST be analyzed. It must be compared with all other reports to see trends or to determine what the cause or problem is. Then something must be done to correct the problem.

If you decided the report is a rate instance or something outside of your ability to control it, then you must indicate that in your notes or on your response to the report. If a second accident occurs with the same fact situation, then it is not longer a rare case, it is something you must act on.

If not, like in this case, the reports prove foreseeability and in this case, prove that failing to act when the defendant knew a problem existed, was enough to support a claim of gross negligence.

What do you think? Leave a comment.

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By Recreation Law    Rec-law@recreation-law.com    James H. Moss

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Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

No Shepard’s  Signal™
As of: April 9, 2020 8:28 PM Z

Cannon v. Rock Climb Fairfield, LLC

Superior Court of Connecticut, Judicial District of Fairfield At Bridgeport

February 13, 2020, Decided; February 13, 2020, Filed

FBTCV186079642S

Reporter

2020 Conn. Super. LEXIS 261 *

Cindy Cannon PPA Emma Cannon v. Rock Climb Fairfield, LLC et al.

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

Judges:  [*1] Richard E. Arnold, Judge Trial Referee.

Opinion by: Richard E. Arnold

Opinion

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #142

The third-party defendant Kate Licata has moved for summary judgment on Counts One and Two of the Cross Complaint filed by the defendants third-party plaintiffs, Rock Climb Fairfield, LLC, Carabiners Fairfield, LLC and Matthew Conroy.1 Count One of the cross complaint alleges contractual indemnification and Count Two alleges common-law indemnification. The cross complaint is dated February 22, 2019. The third-party defendant Licata’s motion for summary judgment is dated September 9, 2019. The defendant third-party plaintiff’s objection is dated October 14, 2019.2 Licata’s reply to the objection is dated October 17, 2019. The court heard oral argument on October 21, 2019.

The case arises from an incident where the minor plaintiff, Emma Cannon, fell from a climbing wall at the Rock Climb defendant’s indoor rock climbing facility located in Fairfield, Connecticut. The minor plaintiff claims she sustained personal injuries. On behalf of her minor child, Cindy Cannon instituted the present action alleging the facility, its agents and employees were negligent in supervising the rock [*2]  climbing activities, thereby causing the minor plaintiff’s injuries.3 The defendants have filed an answer and eight special defenses to the amended complaint.

Thereafter, the Rock Climb defendants filed an apportionment complaint against the defendant Kate Licata, who brought the minor plaintiff, Emma Cannon, and several other girls to the facility for a group birthday party event. The apportionment complaint is dated February 6, 2019.4 The apportionment complaint alleges that Licata was negligent in numerous ways and seeks an apportionment of liability and damages as to Licata for the percentage of negligence attributable to her. The apportionment complaint is not the subject of the motion for summary judgment that is presently before the court. The Rock Climb defendants also filed a cross claim against Licata alleging contractual and common-law indemnity. The cross claim, which is the subject of Licata’s motion for summary judgment, is dated February 22, 2019.

The cross claim alleges that the Rock Climb defendants, who are the third-party plaintiffs, require all invitees to its facility to complete a “Release of Liability and Assumption of Risk” form before participating in rock climbing [*3]  activities. If the participant is a minor, the form must be signed by the minor’s parent or court-appointed guardian, which Licata was not. The release form contains language to the effect that the parent or guardian of the minor has explained the inherent risks of the activity to the minor and the minor understands the said risks and that the minor, nonetheless, wishes to participate in the activities. The release form further provides that “the parent of the minor visitor . . . forever discharge, and agree to indemnify . . . Carabiners Fairfield, LLC, its agents, owners, officers, volunteers, employees, and all other persons or entities acting in any capacity on its behalf . . . from any and all claims, suits, demands, causes of action, which are in any way connected with my or the minor visitor’s visit to the RCF activity site . . . My agreement of indemnity is intended to include claims arising out of losses suffered by me (an adult climber or parent) or the child and losses caused by me or the child. The agreements of indemnity and release include claims of negligence . . . of a Released Party.” The Rock Climb defendants allege that Licata completed an online version of the Release [*4]  form and electronically signed it on behalf of the minor plaintiff Emma Cannon on October 3, 2016. Thus, Licata is contractually obligated to defend and indemnify the Rock Climb defendants for the injuries and damages resulting from Emma Cannon’s fall at the Rock Climb defendants’ facility pursuant to General Statutes §52-102a.5

The Rock Climb defendants also allege Licata is liable for common-law indemnification, claiming that any injuries sustained by the minor plaintiff were proximately caused, in whole or part, by Licata’s negligence and carelessness in multiple ways. Among these allegations are failing to supervise and monitor the minor; failing to instruct the minor; and failing to warn the minor of the dangerous nature and risks of the activity. Lastly, the Rock Climb defendants argue that a substantial amount of discovery remains outstanding and various issues of fact are yet to be settled, and therefore, it argues that Licata’s summary judgment motion should be denied.

The plaintiff cross claim defendant, Licata, argues that the defendants cross claim plaintiffs’ claims are void as against public policy as a result of the decision in Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005), [*7]  regarding any waiver signed by Licata, and any waiver signed by Licata was a contract of adhesion. Licata argues that she was not given any opportunity to negotiate the terms of the Release document, which was presented to her on a “take or leave it” basis. It was the Rock Climb defendants who were responsible for training Licata and/or the minor plaintiff to ensure safe rock climbing, as Licata claims she did not possess the knowledge, experience or authority to ensure the rock climbing facility was in a safe condition. Additionally, Licata argues she was not in control of the situation on the date in question, and the cross claim does not even allege she was in control of the situation. Therefore, any claim for common-law indemnification also fails as a matter of law.

I

Summary Judgment

The legal standard governing summary judgment motions is well settled. 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.” Practice Book §17-49. “A material fact is a fact that will make a difference in the result of the case . . . The facts [*8]  at issue are those alleged in the pleadings.” (Internal quotation marks omitted.) Morrissey-Manter v. Saint Francis Hospital & Medical Center, 166 Conn.App. 510, 517, 142 A.3d 363, cert. denied, 323 Conn. 924, 149 A.3d 982 (2016). Moreover, “[a] genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.” (Internal quotation marks omitted.) Rickel v. Komaromi, 144 Conn.App. 775, 790-91, 73 A.3d 851 (2013).

“The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 426, 165 A.3d 148 (2017). “Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. [H]e must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” (Internal quotation marks omitted.) [*9]  Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 802-03, 842 A.2d 1134 (2004). Consequently, on a motion by defendant for summary judgment the burden is on the defendant to negate each claim as framed by the complaint. Squeo v. Norwalk Hospital Ass’n, 316 Conn. 558, 594, 113 A.3d 932 (2015). “It necessarily follows that it is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.” (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 229, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).

“A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings.” (Internal quotation marks omitted.) Morrissey-Manter v. Saint Francis Hospital & Medical Center, 166 Conn.App. 510, 517, 142 A.3d 363, cert. denied, 323 Conn. 924, 149 A.3d 982 (2016). Moreover, “[a] genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.” (Internal quotation marks omitted.) Rickel v. Komaromi, 144 Conn.App. 775, 790-91, 73 A.3d 851 (2013). “Because litigants ordinarily have a constitutional right to have issues [*10]  of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. [H]e must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” (Internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 802-03, 842 A.2d 1134 (2004).

II

Additional Discovery Argument

In their objection to summary judgment, the RCF defendants argue several times that summary judgment would be inappropriate because discovery is not complete. The court has before it the scheduling orders submitted by the parties, as signed by legal counsel for the RCF parties and the plaintiff. These scheduling orders filed on February 22, 2019,were approved by the court (Kamp, J.) on March 7, 2019.6 The approved scheduling order listed September 30, 2019, as the date by which all discovery was to be completed. There have been no requests to modify the scheduling order or to extend the dates for the completion of discovery.7 The court has before it the “Rock Climb Fairfield Release of Liability and Assumption of Risk” document and further additional information submitted by the parties to allow the court to move forward, including the transcript of the deposition [*11]  testimony of Nora Maklad and employee of RCF. There is no indication that the defendants have sought more information through the discovery process or that Licata has objected to, obstructed or delayed the discovery process. The court has a one hundred and twenty-day time limitation to issue its decision and the court will do so within that time limit with the information that is available, as a trial date assignment is pending.

III

Contractual Indemnification

Count One of the Rock Climb defendants’ third-party complaint against Licata alleges contractual indemnification. “Indemnity involves a claim for reimbursement in full from one who is claimed to be primarily liable.” Atkinson v. Berloni, 23 Conn.App. 325, 326, 580 A.2d 84 (1990). “A party may bring an indemnification claim based on the terms of an indemnity agreement . . . [A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . . There is no requirement that a party seeking indemnification must assert allegations of exclusive control (or any of the other elements [*12]  of a claim for indemnification based on active-passive negligence) in order to state a legally sufficient claim for contractual indemnification.” (Citations omitted; internal quotation marks omitted.) Kinney v. Gilbane Building Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0276049 (September 21, 2004, Wiese, J.).

“As a general rule, contractual indemnification claims that are based on written agreements are construed in accordance with the principles of contract law.”
Lawrence v. Sodexho, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 06 5001264 (January 25, 2007, Owens, J.T.R.); 42 Conn. L. Rptr. 843, 2007 Conn. Super. LEXIS 245; see also PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 290, 838 A.2d 135 (2004). “The essential elements for a cause of action based on breach of contract are (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party, and (4) damages . . . [and] causation.” Greco Properties, LLC v. Popp, Superior Court, judicial district of Hartford, Docket No. CVH 7628, 2008 Conn. Super. LEXIS 414 (February 15, 2008, Bentivegna, J.), citing McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).

“[I]n order to form a contract, generally there must be a bargain in which there is a manifestation of mutual assent to the exchange between two or more parties . . . and the identities of [*13]  the contracting parties must be reasonably certain.” (Citations omitted.) Ubysz v. DiPietro, 185 Conn. 47, 51, 440 A.2d 830 (1981); BRJM, LLC v. Output Systems, Inc., 100 Conn.App. 143, 152, 917 A.2d 605, cert. denied, 282 Conn. 917, 925 A.2d 1099 (2007). “[A] party is entitled to indemnification, in the absence of a contract to indemnify, only upon proving that the party against whom indemnification is sought either dishonored a contractual provision or engaged in some tortious conduct.” Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990). “[Allegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . .”(Citation omitted; internal quotation marks omitted.) Fisher v. Countrywide Home Loans, Inc., Superior Court, judicial district of Litchfield, Docket No. CV-09-4008690-S, 2011 Conn. Super. LEXIS 32 (January 7, 2011, Roche, J.).

As noted, herein, the contract relied upon by the Rock Climb defendants is the “Rock Climb Fairfield Release of Liability and Assumption of Risk” document that has been submitted for the court’s review. It was admittedly signed by Kate Licata on October 3, 2016, the date of the alleged incident, wherein the minor child was injured. The document bears the name of the minor child [*14]  and her date of birth. It lists the e-mail address of Licata and Licata’s electronic signature.

Paragraph 1 of the document titled “activities and risks” lists indoor wall climbing and bouldering as activities. Risks include, among other things: falling from climbing surfaces; persons climbing out of control or beyond personal limits; over-exertion; inadequate physical conditioning; and the negligence of other persons, including other visitors. The document states that the risks described in the document “are inherent in RCF activities . . . and cannot be eliminated without jeopardizing the essential qualities of the activity.”

Paragraph 2, titled “Assumption of Risks” states:

I accept and assume all the risks of a visit to RCF activity sites, inherent or not and whether or not described above, If the visitor is a minor of whom I am parent or legal guardian, I have explained the risks to the minor visitor, who understands them and wishes to visit and participate in RCF activities in spite of the risks.

Paragraph 3 is titled “Release and Indemnity. That paragraph notes that the signor of the agreement is an adult visitor or parent of a minor visitor and that the signor releases and discharges [*15]  and agrees to indemnify the RCF defendants from all claims, suits, demands or causes of action, which are connected to the minor’s visit to and participation in, RCF activities. The agreement is intended to include claims arising out of losses suffered by the child and losses caused by the signor or the child. By signing the agreement, the signor agrees to indemnify and release claims of negligence of the RCF defendants.

Lastly, paragraph 5 of the Release notes that the signor acknowledges that if the minor visitor for whom the signor has signed their signature, is hurt and files a lawsuit, the signor will protect the released and indemnified RCF defendants from any claims of the minor visitor.

The Release bears a signature line and date line for the “parent or legal court appointed guardian. As stated, it is signed by Kate Licata and dated October 3, 2016. The document is not signed by the RCF defendants or any agent, servant or employee of the RCF defendants.

Licata, in moving for summary judgment, argues the “Release of Liability and Assumption of Risk” document is void as against public policy and unenforceable against her. Her argument relies upon the decisions in Hanks v. Powder Ridge Restaurant Corporation, 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, 280 Conn. 153, 905 A.2d 1156 (2006).

In Hanks [*16] , the plaintiff, a patron, brought his three children and another child to Powder Ridge to snow-tube. Neither the plaintiff or the children had ever snow-tubed at Powder Ridge, but the snow-tubing run was open to the public generally, regardless of prior snow-tubing experience, with the restriction that only persons at least six years old or forty-four inches tall were eligible to participate. In order to snow-tube at Powder Ridge, patrons were required to sign a “Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability.” The plaintiff read and signed the agreement on behalf of himself and the four children. While snow-tubing, the plaintiff’s right foot became caught between his snow-tube and the man-made bank of the snow-tubing run, resulting in serious injuries that required multiple surgeries to repair. Id., 316-17. The plaintiff alleged that the defendants negligently caused his injuries in several ways. Id. The defendants denied the plaintiff’s allegations of negligence and asserted two special defenses. “Specifically, the defendants alleged that the plaintiff’s injuries were caused by his own negligence and that the agreement relieved the defendants of liability, “even if the accident was due to the negligence of the defendants.” Id., 318-19.

In Hanks, our Supreme Court determined that even though the exculpatory agreement purporting to release the defendants from prospective liability for personal injuries sustained as a result of the operator’s negligent conduct was well drafted, it nonetheless violated public policy. In finding the agreement violated public policy, the Supreme Court reversed [*17]  the trial court’s granting of summary judgment for the defendants. Id., 321-26.

In Hanks, snowtubing was the recreational activity at issue. Our Supreme Court placed particular emphasis on: (1) the societal expectation that family oriented activities will be reasonably safe; (2) the illogic of relieving the party with greater expertise and information concerning the dangers associated with the activity from the burden of proper maintenance of the snowtubing run; and (3) the fact that the release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and offered to the plaintiff on a “take it or leave it” basis. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. at 331-34. The court recognized the clear public policy in favor of participation in athletics and recreational activities. Id., at 335.

In Reardon v. Windswept Farm, LLC, supra, 280 Conn. 153, the plaintiff was an experienced horseback rider, who was injured while riding one of the defendant’s horses. The plaintiff subsequently challenged the validity of a release document similar to the one in Hanks, and in this case, wherein the defendant sought to insulate itself from liability. Reardon found that the decision in Hanks was controlling in determining the validity of the release and indemnity agreement.

We conclude [*18]  that, based on our decision in Hanks, the totality of the circumstances surrounding the recreational activity of horseback riding and instruction that was offered by the defendants demonstrates that the enforcement of an exculpatory agreement in their favor from liability for ordinary negligence violates public policy and is not in the public interest. First, similar to the situation at issue in Hanks, the defendants in the present case provided the facilities, the instructors, and the equipment for their patrons to engage in a popular recreational activity, and the recreational facilities were open to the general public regardless of an individual’s ability level. Indeed, the defendants acknowledged that, although the release required riders to indicate their experience level, it also anticipated a range in skills from between “[n]ever ridden” to “[e]xperienced [r]ider,” and that the facility routinely had patrons of varying ability levels. Accordingly, there is a reasonable societal expectation that a recreational activity that is under the control of the provider and is open to all individuals, regardless of experience or ability level, will be reasonably safe.

Id., 161.

Additionally, in [*19]  the present case, as in Hanks, the plaintiff “lacked the knowledge, experience and authority to discern whether, much less ensure that, the defendants’ [facilities or equipment] were maintained in a reasonably safe condition. Specifically, although the plaintiff characterized herself as an experienced rider, she was in no greater position then the average rider to assess all the safety issues connected with the defendants’ enterprise. To the contrary, it was the defendants, not the plaintiff or the other customers, who had the “expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone [could] properly maintain and inspect their premises, and train their employees in risk management.” In particular, the defendants acknowledged that they were responsible for providing their patrons with safe horses, qualified instructors, as well as properly maintained working equipment and riding surfaces. In the context of carrying out these duties, the defendants were aware, and were in a position continually to gather more information, regarding any hidden dangers associated with the recreational activity including the [*20]  temperaments of the individual horses, the strengths of the various riding instructors, and the condition of the facility’s equipment and grounds. As we concluded in Hanks, it is illogical to relieve the defendants, as the party with greater expertise and information concerning the dangers associated with engaging in horseback riding at their facility, from potential claims of negligence surrounding an alleged failure to administer properly the activity.

(Internal citations and quotation marks omitted.) Id., 161-62.

Lastly, the Reardon court noted that the release that the plaintiff signed broadly indemnifying the defendants from liability for damages resulting from the defendants’ own negligence was a classic contract of adhesion of the type that this court found to be in violation of public policy in Hanks.

Specifically, we have noted that the most salient feature of adhesion contracts is that they are not subject to the normal bargaining processes of ordinary contracts, and that they tend to involve a standard form contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who has little choice about the terms. In the present case, signing the release [*21]  provided by the defendants was required as a condition of the plaintiff’s participation in the horseback riding lesson, there was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not participate in the activity. As in Hanks, therefore, the plaintiff had nearly zero bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the risk more effectively then the defendants.

(Internal citations and quotation marks omitted.) Id., 162-63.

It is also noted that the court in Reardon did not limit its decision to the sport of horseback riding or the activity of snowtubing which was the activity in Hanks. “The list of recreational activities that we identified in Hanks was meant to be illustrative, not exhaustive. [*22]  Indeed, it would be impossible for us to identify all of the recreational activities controlled by the Hanks decision.” Id., 165-66. The court finds that the factors considered in Hanks v. Powder Ridge Restaurant Corporation, supra, 276 Conn. 314 and Reardon v. Windswept Farm, LLC, supra, 280 Conn. 153 apply to the activities of bouldering and rock climbing which are present in the case before this court.8

In the present case, the defendant’s facility was open to the general public regardless of a patron’s experience level. The minor plaintiff was a ten-year-old female. The defendants have admitted that they provided instruction to the group of minors attending the birthday celebration at the defendants’ facility. Neither the minor plaintiff or Licata provided any of the equipment to be used. Licata, herself, did not provide training, guidance or supervision to the minors, including the minor plaintiff. Licata possessed no special knowledge regarding rock climbing or bouldering activities including training and safety procedures other than an initial orientation by RCF employees.9 Maklad testified at her deposition that the orientation lasted only five to ten minutes. The RCF defendants/third-party plaintiffs admit that there was zero expectation that Licata would “train and guide climbers” [*23]  or to inspect various facility equipment. RCF argues that they did expect that parents and guardians would supervise children. Thus, there is a question of fact as to whether or not Licata was adequately supervising the minor plaintiff Cannon when she fell. The court disagrees.

In this case, signing the release provided by RCF was required as a condition of the plaintiff’s participation in the bouldering and rock climbing activities at the RCF facility. There was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not to allow the minor guests who accompanied her to the birthday party to participate. Licata had no bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. “This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the [*24]  risk more effectively then the defendants.” Reardon v. Windswept Farm, LLC, supra, 280 Conn. 162-63. The RCF release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and offered to the plaintiff on a “take it or leave it” basis. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. at 331-34.10

The RCF parties additionally argue that it is improper to allow Licata to avail herself of arguments based on public policy when she in turn violated public policy by signing the Release and Indemnification Agreement when she was not the parent or legal guardian of the minor plaintiff, Cannon. They argue Licata violated societal expectations and norms in signing the document and now disclaiming responsibility. They declare that Licata is the wrongdoer and should not be allowed to walk away from this issue.

Licata in her reply to the RCF objection to summary judgment argues that the RCF defendants have cited no authority for their position that Licata’s signing of the release document on behalf of the minor, Emma Cannon constituted a violation of public policy; nor have they explained why such a violation would restrict Licata from challenging the validity of the waiver. Licata also questions why the RCF defendants would make this argument, given that the sole basis [*25]  for the contractual indemnification claim against Licata is her signing of the release document is which they now assert violated public policy. The court agrees. If the signing of the release was invalid, then it would stand to reason that the release itself is invalid. The RCF defendants, by their own reasoning would be attempting to enforce an agreement, which they themselves claim is invalid.

For the reasons set forth herein, the court grants Licata’s motion for summary judgment on Count One of the Rock Climb defendants’ third-party complaint against Licata alleging contractual indemnification.

IV Common-Law Indemnification

In Count Two of the cross claim, the RCF defendants allege common-law indemnification. Therefore, the court reviews our law concerning common-law indemnification, as set forth in Valente v. Securitas Sec. Services, USA, Inc., 152 Conn.App. 196, 203-04, 96 A.3d 1275 (2014). Citing, Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 412, 207 A.2d 732 (1965), the Appellate Court in Valente, supra, noted that “[g]enerally, there is no right to indemnification between joint tortfeasors.” Kaplan v. Merberg Wrecking Corp., supra, recognized an exception to this general rule. “Kaplan teaches that indemnification is available from a third party on whom a primary exposure of liability is claimed to rest. To hold a third party liable to indemnify one tortfeasor for damages awarded against [*26]  it to the plaintiff for negligently causing harm to the plaintiff, a defendant seeking indemnification must establish that: (1) the third party against whom indemnification is sought was negligent; (2) the third party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting harm; (3) the third party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the third party’s negligence, had no reason to anticipate it, and reasonably could rely on the third party not to be negligent.” (Citation omitted.) Valente v. Securitas Sec. Services, USA, Inc., supra, 152 Conn.App. 203-04. “Our Supreme Court has defined exclusive control of the situation, for the purpose of a common-law indemnification claim, as exclusive control over the dangerous condition that gives rise to the accident.” (Internal quotation marks omitted.) Id., citing, Pellecchia v. Connecticut Light & Power Co., 139 Conn.App. 767, 775, 57 A.3d 803 (2012) (dangerous condition held to be electric power line which electrocuted plaintiff), cert. denied, 308 Conn. 911, 61 A.3d 532 (2013).

The court has reviewed the objection to the motion for summary judgment filed by the RCF defendants and notes, as pointed out by Licata in her reply brief, that the RCF defendants have [*27]  not addressed Licata’s claim in her motion for summary judgment that she did not control the situation that prevailed at the RCF’s facility on the date of the minor’s injury; nor is it alleged in the cross claim that Licata controlled the situation. An essential element of common-law indemnification is that the third party, Licata, was in control of the situation to the exclusion of the third-party plaintiffs. Valente v. Securitas Sec. Services, USA, Inc., supra, 152 Conn.App. 203-04; Pellecchia v. Connecticut Light & Power Co., supra, 139 Conn.App. 775. The third-party plaintiffs, the RCF defendants, have produced little to no credible evidence; nor have they alleged or argued that Licata was in control of the situation to the exclusion. “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Citations omitted; internal quotation marks omitted.) Merchant v. State Ethics Commission, 53 Conn.App. 808, 818, 733 A.2d 287 (1999). These same principles apply to claims raised in the trial court. Connecticut Light and Power Co. v. Department of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).

For the foregoing reasons discussed, herein, Licata’s motion for summary judgment is granted as to Count Two alleging common-law indemnification.

ORDERS

Licata’s Motion for Summary Judgment is granted as to Count One, which alleges contractual indemnification and Count [*28]  Two, which alleges common-law indemnification.

THE COURT

Judge Richard E. Arnold,

Judge Trial Referee

End of Document


PA Supreme Court determines colleges owe a duty to provide medical care to student-athletes and releases are valid for stopping claims by student athletes.

Court also sets forth requirements for a release to be valid under Pennsylvania law.

Feleccia v. Lackawanna Coll., 215 A.3d 3, 2019 Pa. LEXIS 4615

State: Pennsylvania, Supreme Court of Pennsylvania

Plaintiffs: , Augustus Feleccia and Justin T. Resch

Defendant: Lackawanna College a/k/a Lackawanna Junior College, AD Mecca, Coach Duda, Coach Reiss, Coach Lamagna and Coyne and Bonisese

Plaintiff Claims: negligence, including negligence per se. The complaint also sought punitive damages, alleging appellants acted “willfully, wantonly and/or recklessly

Defendant Defenses: Release

Holding: For the Plaintiff’s

Year: 2017

Summary

In this decision, the Pennsylvania Supreme Court reviews requirements for how a release must be written in Pennsylvania law to be valid. Pennsylvania has no definition of gross negligence, but a release is still not valid to stop a gross negligence claim.

Finally, if you create a duty or make a promise that people rely on to their detriment or injury you are liable. Here a college is liable to its student-athletes who were injured during practice for not having certified athlete trainers on the field.

Facts

Lackawanna had customarily employed two athletic trainers to support the football program.1 However, both athletic trainers resigned in the summer of 2009 and AD Mecca advertised two job openings for the position of athletic trainer. AD Mecca received applications from Coyne and Bonisese, recent graduates of Marywood University who had obtained Bachelor of Science degrees in Athletic Training. AD Mecca conducted telephone interviews with Coyne and Bonisese for the open athletic trainer positions at Lackawanna.

At the time she applied and interviewed for the Lackawanna position, Coyne had not yet passed the athletic trainer certification exam, which she took for the first time on July 25, 2009, and was therefore not licensed by the Board. Bonisese was also not licensed, having failed the exam on her first attempt, and still awaiting the results of her second attempt when she applied and interviewed for the Lackawanna position. Nevertheless, Lackawanna hired both Coyne and Bonisese in August 2009 with the expectation they would serve as athletic trainers, pending receipt of their exam results, and both women signed “athletic trainer” job descriptions. Id. After starting their employment at Lackawanna, Coyne and Bonisese both learned they did not pass the athletic trainer certification exam. Coyne informed AD Mecca of her test results, and AD Mecca also learned Bonisese had failed her second attempt at certification.

AD Mecca retitled the positions held by Coyne and Bonisese from “athletic trainers” to “first responders.” Id. at 1204. AD Mecca notified Coyne and Bonisese via email and written correspondence that due to their failure to pass the certification exam, they would function as “first responders” instead of “athletic trainers.” However, neither Coyne nor Bonisese executed [*7] new job descriptions, despite never achieving the credentials included in the athletic trainer job descriptions they did sign. Appellants were also aware the qualifications of their new hires was called into question by their college professors and clinic supervisors. See Id. More specifically, Shelby Yeager, a professor for Coyne and Bonisese during their undergraduate studies, communicated to AD Mecca her opinion that Coyne and Bonisese were impermissibly providing athletic training services in September 2009. Professor Yeager was aware Lackawanna did not have any full-time athletic trainers on staff2 and noted Coyne and Bonisese, as recent graduates, were inexperienced and did not have the required Board license. Professor Yeager stated that Coyne in particular was “ill-equipped to handle the rigors of a contact sport (like football) as an athletic trainer on her own regardless of whether she managed to pass [the certification] exam and obtain her state license.” Id., quoting Affidavit of Shelby Yeager. With regard to Bonisese, Bryan Laurie, who supervised her as a student, rated her performance as “below average/poor” and provided his assessment that she was not qualified to act as an athletic trainer in March of 2010. Id., citing Affidavit of Bryan Laurie.

Appellee Resch started playing football at the age of six, and continued playing through high school. Id. at 1204-05. Upon graduating from high school in 2008, Resch was accepted at Lackawanna and, hoping to continue playing football, met with Coach Duda prior to arriving for classes. Resch tried out for the Lackawanna football team in the fall of 2008. Resch not only failed to make the roster, but was also placed on academic probation, so he was ineligible to play football in the spring of 2009.

Appellee Feleccia also began playing football as a child at the age of ten, and played through high school. Feleccia was recruited by Coach Duda to play football at Lackawanna. See id. Feleccia did not make the team in the fall of 2008, but practiced with them during that time. During a scrimmage in the fall of 2008, Feleccia tore the labrum in his left shoulder, which was surgically repaired. Feleccia was also placed on academic probation after the fall 2008 semester and temporarily withdrew from Lackawanna. See id.

In mid-January 2010, Resch and Feleccia returned to Lackawanna for the spring semester with the aspiration to make the football team. Id. Lackawanna required appellees to fill out and sign various documents in a “participation packet” before playing with the team, including a “Waiver of Liability and Hold Harmless Agreement” (the Waiver) and a form including an “Information/Emergency Release Consent” (the Consent).

On March 29, 2010, appellees participated in the first day of spring contact football practice. The team engaged in a variation of the tackling drill known as the “Oklahoma Drill.” Appellees had previously participated in the Oklahoma Drill, or a variation of it, either in high school or at Lackawanna football practices, and were aware the drill would take place during practices. While participating in the drill, both Resch and Feleccia suffered injuries. Resch attempted to make a tackle and suffered a T-7 vertebral fracture. Resch was unable to get up off the ground and Coyne attended to him before he was transported to the hospital in an ambulance. See Feleccia, 156 A.3d at 1207. Notwithstanding Resch’s injury, the Lackawanna football team continued practicing and running the Oklahoma Drill. Later that same day, Feleccia was injured while attempting to make his first tackle, experiencing a “stinger” in his right shoulder, i.e., experiencing numbness, tingling and a loss of mobility in his right shoulder. Id. Bonisese attended Feleccia and cleared him to continue practice “if he was feeling better.” Id. Feleccia returned to practice and then suffered a traumatic brachial plexus avulsion while making a tackle with his right shoulder. Id.

The plaintiff’s claims were dismissed based by the trial court on a motion for summary judgment filed by the defendants. The Plaintiff’s then appealed that dismissal of their complaint to the Pennsylvania Superior Court (intermediate appellate court). The Pennsylvania Superior Court reversed the trial court on several issues. The defendants then filed this appeal with the Pennsylvania Supreme Court.

The appeal to the Pennsylvania Supreme Court was based on two issues.

a. Is a Pennsylvania college required to have qualified medical personnel present at intercollegiate athletic events to satisfy a duty of care to the college’s student-athletes?

b. Is an exculpatory clause releasing “any and all liability” signed in connection with participation in intercollegiate football enforceable as to negligence?

That means the decision of the Pennsylvania Supreme Court will only look at the two issues it has decided that need to be reviewed by the Supreme Court and nothing else.

Analysis: making sense of the law based on these facts.

What is interesting are two things.

First, the court allowed a release to be used by a college to prevent lawsuits when a student is injured during practice for an NCAA sport. The analysis did not center around the relationship between the student athlete and the university; it centered around the fact the University had told student athletes they would have trainers and did not.

Sort of a detrimental reliance claim: I relied upon your statements that then injured me. Or as stated in the Restatement (Second) of Torts §323

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other’s reliance upon the undertaking.

The court found the College had created an expectation, relied upon by the students, that there would be athletic trainers available on the field during practice. Because the two trainers on the field were not certified, and possibly, to some extent, the actions of the school in changing the requirements or the people on the field to help the athletes from trainers to medical responders, the court found a legal theory where the college could be liable.

The second issue is the Pennsylvania Supreme Court’s interpretation of Pennsylvania release law. Under Pennsylvania law “Accordingly, exculpatory contracts are valid and enforceable only when “certain criteria are met.” To meet that criteria the court restated four requirements under Pennsylvania law for a release to be valid.

(1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause).

The first issue the court reviewed in determining if the release was valid was the lack of the word negligence in the release. If the release failed to specifically state the release stopped claims for the defendants negligence was it enforceable. The court said the release was valid even if it did not include the word negligence in its wording. To be valid the release must spell “…out the intention of the parties with particularity” and show “the intent to release [appellants] from liability by express stipulation.”

That means the court must review the party’s intentions in creating the agreement between them. Furthermore, the injuries suffered by the plaintiff must be encompassed within the terms of the release. That does not mean a specific list of injuries, just a general idea that the injury suffered was within the contemplation of the release.

The court then looked at ordinary negligence and gross negligence under Pennsylvania law. The court first stated there is a difference between ordinary, gross and reckless conduct or negligence.

However, the court avoided the issue of defining gross negligence or the issue of whether gross negligence was valid in this claim. The court stated, “([A]s gross negligence is not implicated in the instant matter, we leave for another day the question of whether a release for gross negligence can withstand a public policy challenge.”

The court then looked at how both parties in their briefs defined the actions of the defendant college. The court then reviewed public policy requirements to void a release under Pennsylvania law.

A determination that a contract is unenforceable because it contravenes public policy “requires a showing of overriding public policy from legal precedents, governmental practice, or obvious ethical or moral standards. “It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring. . . .”

However, the court then stated that pre-injury contracts, releases, are unenforceable when the liability of the defendant arises from recklessness. So the court refused to define gross negligence and used an old definition of recklessness. The Court then held that recklessness, not necessarily defined in a definition of negligence, could void a release.

Again, the Court repeated that Pennsylvania had not defined gross negligence in a civil liability setting.

Thus, although we have not previously settled on a definitive meaning of the term “gross negligence” as compared to “ordinary negligence” in the civil context, we have recognized there is a difference between the two concepts, and they are distinguished by the degree of deviation from the standard of care.

The court did then define gross negligence but did so in a way that did not set the definition in stone under Pennsylvania law. It just pulled definitions of gross negligence from lower courts and did not adopt any of them as the definition.

…in essence, gross negligence is merely negligence with a vituperative epithet. It constitutes conduct more egregious than ordinary negligence but does not rise to the level of intentional indifference to the consequences of one’s acts. It may also be deemed to be a lack of slight diligence or care comprising a conscious, voluntary act or omission in reckless disregard of a legal duty and the consequences to another party. The term has also been found to mean a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference. The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care.

Gross negligence has thus been consistently recognized as involving something more than ordinary negligence, and is generally described as “want of even scant care” and an “extreme departure” from ordinary care.

As we have seen, gross negligence does not rise to the level of the intentional indifference or “conscious disregard” of risks that defines recklessness, but it is defined as an “extreme departure” from the standard of care, beyond that required to establish ordinary negligence, and is the failure to exercise even “scant care.

The court then repeated that the release would not stop a claim for gross negligence.

Moreover, although the Waiver bars’ recovery for appellees’ damages arising from ordinary negligence, we hold the Waiver does not bar recovery for damages arising from gross negligence or recklessness, and there remain factual questions regarding whether appellants’ conduct constituted gross negligence or recklessness.

Pennsylvania joins the list of states that a release will not stop a claim for gross negligence. A gross negligence claim must be decided by the trier of fact, the jury, in these cases.

So Now What?

First, we have definitive guidelines from the Pennsylvania Supreme Court on how the court wants a release to be written. Second, we know that Pennsylvania joins the majority of states where a release cannot stop a claim for gross negligence.

We also know that recklessness is enough to void a release as well as gross negligence. However, terms we will result in battles by both sides to use the definitions they want applied to the facts of each particular case.

Finally, as in most states, if you make a promise to someone, and they rely on that promise to their detriment, you are going to write a check!

It is an interesting opinion purely from the allowance of the student-athletes to sue their college. However, the reasoning behind how a release must be written in Pennsylvania has great value.

What do you think? Leave a comment.

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Howe v. Momentum LLC, 2020 UT App 5, 2020 Utah App. LEXIS 1, 2020 WL 34996

Howe v. Momentum LLC, 2020 UT App 5, 2020 Utah App. LEXIS 1, 2020 WL 34996

Howe v. Momentum LLC

Court of Appeals of Utah

January 3, 2020, Filed

No. 20190187-CA

Opinion

APPLEBY, Judge:

[*P1]  Scott Howe sued Momentum LLC under a theory of gross negligence1 for injuries he sustained while “bouldering.”2 Momentum moved for summary judgment, which the district court denied because the disputed facts were sufficient to raise a jury question. The district court also ruled that Howe’s expert (Expert) was qualified to testify on the industry standard of care. The matter is before this court on an interlocutory appeal challenging the court’s denial of the summary judgment motion and its decision to permit Expert to testify. We affirm and remand for further proceedings.

BACKGROUND3

[*P2]  Momentum is an indoor-climbing facility with a separate area for bouldering. The bouldering area’s concrete floor is covered by approximately twelve inches of foam padding overlain by thick vinyl, known as an “impact attenuation surface.” In the years after Momentum’s 2007 opening, some of the vinyl [**2]  began to tear and separate. In late September 2011, Momentum had “[a]t least one” tear repaired with a welded vinyl patch.

[*P3]  But Momentum’s management team deemed these tear patches a hazard for tripping,4 so it placed modular one-inch-thick mats over certain areas of the bouldering area floor that were showing signs of wear or damage. The mats are not designed to be anchored to the underlying pad and they would sometimes move when people landed on them. Because the mats tended to move, Momentum staff “monitored the floor regularly to try to keep the [mats] in place.” In addition to this action, a Momentum employee altered the routes above those areas by reconfiguring and reducing the number of foot-and hand-holds to reduce customer use of the areas with worn and damaged padding.

[*P4]  Over the years—and prior to Howe’s injury—Momentum’s patrons had reported incidents, some of which involved injuries, which alerted Momentum to the fact that the padding in the bouldering area was worn and damaged in some places. Before Howe was injured, five incidents were reported before Momentum began using the mats and another eight were reported thereafter. Each of these injuries involved a climber dropping [**3]  from the bouldering wall or “slab area” to the floor below and, upon landing, pushing a foot through the floor padding, making contact with the concrete floor below, either rolling or twisting an ankle in the process.

[*P5]  In March 2012, Howe was bouldering at Momentum. After finishing his bouldering route, Howe dropped off the wall to the floor below. As he made contact with the floor, his “left foot impacted the mat on top of the padded floor, causing the mat to move. As the mat moved, it exposed the padded floor beneath. Concealed under the mat, the cover of the pad was split in a straight line, exposing the abutting edges of pads below.” When Howe’s “right foot impacted the top of the two abutting pads, [his] foot passed between the two abutting pads to the floor beneath.” As a result of the contact with the concrete, Howe broke his right ankle.

[*P6]  Howe sued, asserting—among other things—that Momentum was grossly negligent. He alleged that Momentum, “with a knowing and reckless indifference and disregard for the safety of [Howe] and other members of [Momentum], concealed, or caused to be concealed, the defects in their floor padding by placing mats over the defective area.”

[*P7]  Howe designated [**4]  a liability Expert. Expert has a bachelor’s degree in chemical engineering and petroleum refining, as well as a master’s degree in metallurgical and materials engineering. His professional experience includes research and development engineering as well as forensic engineering. Expert owns a forensic engineering company that specializes in “metallurgical, materials, and mechanical failure analysis”; “materials evaluation and testing”; “product liability and analysis”; “fire and explosion cause and origin”; “industrial, recreational, and construction accident analysis”; and “chemical and mechanical systems failure analysis.” Expert has been an expert witness in numerous cases, one of which involved a mechanical failure that caused an indoor climbing accident. He has also had professional experience with evaluating impact attenuation surfaces in the ski industry.

[*P8]  Expert opined that Momentum did not take appropriate steps to protect climbers in the bouldering area. Indeed, Expert concluded that

Momentum significantly elevated the risk of injury to climbers in the bouldering area by (1) failing to repair, restrict access, clearly mark, cordon off, close walls, or close areas around and [**5]  near the areas where the vinyl padding cover was damaged, and by (2) placing the [mats] over the damaged areas of the padding cover, thus concealing the hazard created by the damage.

In Expert’s opinion, appropriate steps to remedy the problem could have included using “warning signs, closing the sections of the floor or wall near damaged areas,” removing the hand-and foot-holds above the damaged padding, making inaccessible the damaged padding areas, or repairing the damaged padding. During deposition testimony, Expert explained that “those are ways to prevent the public from interacting with the obvious hazard created by the opening in the pads.” This approach was based on his “engineering background and experience in dealing with hazards.” In short, his opinion is that “gluing and adhering . . . a large patch of vinyl over the tear” would have been safer than using the mats.

[*P9]  Momentum moved for summary judgment, arguing the undisputed facts established that it exercised at least slight care to protect climbers using its facility, which meant Howe could not demonstrate gross negligence. Momentum also moved to exclude Expert, claiming he was unqualified to opine upon the standard of [**6]  care in the indoor-climbing industry. The district court denied these motions, and Momentum successfully petitioned this court for an interlocutory appeal.

ISSUES AND STANDARDS OF REVIEW

[*P10]  Momentum raises two issues on appeal. First, it claims the district court erred when it denied Momentum’s motion for summary judgment. HN1[] Denials of summary judgment are questions of law reviewed for correctness. Glenn v. Reese, 2009 UT 80, ¶ 6, 225 P.3d 185.

[*P11]  Second, Momentum claims the district court erred when it denied Momentum’s motion to exclude Expert. HN2[] A district court’s determination regarding the admissibility of expert testimony is reviewed for abuse of discretion. Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 16, 269 P.3d 980.

ANALYSIS

I. Summary Judgment

[*P12]  HN3[] Summary judgment shall be granted “if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). In this case, the district court denied Momentum’s motion for summary judgment on Howe’s claim for gross negligence, based on its finding that there were “numerous genuine issues of disputed material fact.”

[*P13] 
HN4[] In reviewing a district court’s summary judgment decision, appellate courts “must evaluate all the evidence and all reasonable inferences fairly drawn from the evidence [**7]  in a light most favorable to the party opposing summary judgment to determine whether there is a material issue of fact to be tried.” Horgan v. Industrial Design Corp., 657 P.2d 751, 752 (Utah 1982). “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. Summary judgment is proper where reasonable minds could reach only one conclusion based on the applicable material facts.” Penunuri v. Sundance Partners, Ltd., 2017 UT 54, ¶ 35, 423 P.3d 1150 (quotation simplified).

[*P14]  Citing Penunuri and Blaisdell v. Dentrix Dental Systems, Inc., 2012 UT 37, 284 P.3d 616, Momentum argues that “the undisputed material facts of this case show that [it] exercised care, far more than even slight care, and was not careless or reckless, let alone to a degree that shows utter indifference,” and that therefore “the district court erred in denying Momentum’s motion for summary judgment.” (Quotation simplified.) Momentum points out that it “[u]ndisputedly . . . took steps to protect climbers from being injured by the wear and tear damage that had developed in its primary padding,” including using welded patches, “thinn[ing] out” the climbing routes, and, “[a]fter determining that the . . . patches created tripping hazards,” using the mats and monitoring their positioning. In Momentum’s view, these steps [**8]  demonstrate that it took at least slight care and was not utterly indifferent to the consequences that could result from a failure to take care.

[*P15]  Howe acknowledges that Momentum took these steps, but argues they were inadequate. He further asserts that Momentum’s use of the pads to cover the defective flooring concealed the risk and rendered the climbers “defenseless against the dangerous conditions known to Momentum,” and claims that his “inability to see the dangerous flooring over which he was climbing contributed to his injuries.” At oral argument before this court, Howe argued this concealment “dramatically magnified” the risk of harm.

[*P16]  We note the tension between our supreme court’s recent articulation of the elements of gross negligence as “the failure to observe even slight care,” Penunuri, 2017 UT 54, ¶ 35, 423 P.3d 1150 (quotation simplified), and the language of a subsequent paragraph suggesting that “the essential evidence needed to survive a defendant’s motion for summary judgment on a gross negligence claim” is “evidence that the defendant’s conduct dramatically magnified the risk of harm to the plaintiff,” id. ¶ 37. We can envision situations in which the straightforward application of the elements identified [**9]  in paragraph 35 might dictate a grant of summary judgment in favor of the defendant while the application of the elements identified in paragraph 37 might dictate the denial of summary judgment. But we need not explore this tension further here because Momentum’s failure to take further action in the face of eight additional incidents creates questions of fact about whether it was grossly negligent, even assuming that paragraph 35 sets forth the correct formulation of the elements of gross negligence.

[*P17]  Although Momentum took certain steps to remedy the problem created by the deterioration of the foam padding, injury incidents continued to occur even after implementation of Momentum’s injury-avoidance strategy. HN5[] It is beyond question that a plaintiff who can demonstrate that a defendant has taken no action in response to injury incidents will have likely made out at least a prima facie case of gross negligence, one sufficient to withstand summary judgment. See id. ¶ 16 (“Summary judgment dismissing a gross negligence claim is appropriate where reasonable minds could only conclude that the defendant was not grossly negligent under the circumstances . . . .”). We cannot see much of a distinction [**10]  between that situation and the case Howe brings here: a defendant takes some action in response to injury incidents, and therefore arguably demonstrates slight care in the beginning, but takes no additional action after injury incidents continue to occur following implementation of its original strategy. Stated another way, we are not persuaded that a defendant who simply relies on a repeatedly-failed strategy to avert injury from a known risk is entitled to judgment as a matter of law on the “slight care” question.

[*P18]  In this case, five incidents, some of which involved injuries, motivated Momentum to take steps to address the problem and ultimately to place mats over the cracked foam padding. These acts arguably show that Momentum exercised slight care in the beginning and was therefore not completely indifferent to the consequences of allowing climbers to use the bouldering area given the condition of the padding. But by the time Howe was injured, eight more injuries had been reported to Momentum, even after it had thinned the routes and put down the extra pads. These eight additional climbers were injured in roughly the same manner as Howe: when they dropped from the bouldering wall [**11]  onto the floor below, the mat moved, their feet were caught in the crack in the foam padding, and their ankles were injured. Under these circumstances, the question of whether Momentum’s continued use of the mats constituted gross negligence presents a disputed issue of material fact.

[*P19]  Because a reasonable finder of fact could determine, on this record, that Momentum was grossly negligent, the district court’s denial of summary judgment was appropriate.

II. Expert Testimony

[*P20]  HN6[] The Utah Rules of Evidence allow “a witness who is qualified as an expert by knowledge, skill, experience, training, or education” to “testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Utah R. Evid. 702(a). Furthermore, “[s]cientific, technical, or other specialized knowledge may serve as the basis for expert testimony only if there is a threshold showing that the principles or methods that are underlying in the testimony (1) are reliable, (2) are based upon sufficient facts or data, and (3) have been reliably applied to the facts.” Id. R. 702(b).

[*P21]  Momentum argues the district court [**12]  abused its discretion in denying its motion to exclude Expert. First, it contends Expert’s experience as an engineer did not qualify him to testify as to the applicable standard of care in the indoor-climbing industry. Second, Momentum contends that, because Expert did not evaluate or test vinyl floor padding or the mats used to cover the damaged areas, Expert’s opinions did not meet the reliability standard imposed by rule 702 of the Utah Rules of Evidence.

[*P22]  But as Howe points out, Expert’s training as a professional engineer with experience in “forensic engineering and accident analysis in recreational settings,” “slip and fall accident analysis,” and “warnings, design, and standard of care issues” qualifies him to assist the finder of fact in making a determination of the standard of care in the indoor-climbing industry.

[*P23]  Expert’s proposed testimony is that Momentum acted with indifference toward the safety of its members when it placed mats over the damaged padding; Expert opines that Momentum could have and should have taken alternative steps to mitigate the effects of the worn padding. As Howe points out, and the district court agreed, this testimony “will be helpful to the jury to understand the options Momentum had [**13]  in addressing the damaged vinyl” and to avoid speculation regarding its options.

[*P24] 
HN7[] Further, as to reliability, Expert’s opinion is based “upon [his] engineering education, experience, and training” and “knowledge . . . gained from being a forensic engineer . . . and studying padding and other types of accidents.” In determining whether to allow an expert to offer an opinion, the district court’s role is that of a “gatekeeper,” meant “to screen out unreliable expert testimony.” Gunn Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012 UT App 20, ¶ 28, 269 P.3d 980 (quotation simplified). The court is afforded “broad discretion” when making this determination, and we “will reverse its decision only when it exceeds the bounds of reasonability.” Id. ¶ 31 (quotation simplified). Here, the court’s determination that Expert’s opinion was sufficiently reliable does not “exceed[] the bounds of reasonability,” and we decline to reverse it. See id. (quotation simplified). Expert’s opinion meets the threshold showing of reliability and “will help the trier of fact to understand the evidence or to determine a fact in issue.” Utah R. Evid. 702(a). Therefore the district court did not abuse its discretion in denying Momentum’s motion to exclude his testimony.

CONCLUSION

[*P25]  Because there are material facts in [**14]  dispute, the district court properly denied Momentum’s summary judgment motion. Furthermore, the court did not abuse its discretion in denying Momentum’s motion to exclude Expert. We affirm the district court’s rulings on these points and remand for further proceedings.