New Hampshire: Search and Rescue Response Expenses; Recovery

Posted: June 6, 2023 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

New Hampshire Statutes

Title 18. FISH AND GAME

Chapter 206. FISH AND GAME COMMISSION

Conservation Officers, Superintendents of Hatcheries, and Other Employees

Current through Chapter 91 of the 2021 Legislative Session

§ 206:26-bb. Search and Rescue Response Expenses; Recovery

I. Any person determined by the department to have acted negligently in requiring a search and rescue response by the department shall be liable to the department for the reasonable cost of the department’s expenses for such search and rescue response, unless the person shows proof of possessing a current version of any of the following:

(a) A hunting or fishing license issued by this state under title XVIII.

(b) An OHRV registration under RSA 215-A, a snowmobile registration under RSA 215-C, or a vessel registration under RSA 270-E.

(c) A voluntary hike safe card. The executive director shall adopt rules under RSA 541-A for the issuance to purchasers on the department’s Internet site, and subsequent annual renewals, of a hike safe card prior to a person’s need for a search and rescue response. The annual fee for a hike safe card shall be $25 for an individual or $35 for a family. A “family” shall consist of the purchaser, the purchaser’s spouse, and the purchaser’s minor children or stepchildren. In addition, if the purchaser or the purchaser’s spouse has been appointed as a family guardian for an individual under RSA 464-A, that individual shall be considered part of the purchaser’s family. A transaction fee determined by the department shall be for the Internet license agent as provided in RSA 214-A:2. The executive director shall forward to the state treasurer the sum collected from each individual hike safe card purchased and each family hike safe card purchased, less the amount of such transaction fee, for deposit in the fish and game search and rescue fund under RSA 206:42.

I-a. The executive director shall bill the responsible person for such costs. Payment shall be made to the department within 30 days after the receipt of the bill, or by some other date determined by the executive director. If any person shall fail or refuse to pay the costs by the required date, the department may pursue payment by legal action, or by settlement or compromise, and the responsible person shall be liable for interest from the date that the bill is due and for legal fees and costs incurred by the department in obtaining and enforcing judgment under this paragraph. All amounts recovered, less the costs of collection and any percentage due pursuant to RSA 7:15-a, IV(b), shall be paid into the fish and game search and rescue fund established in RSA 206:42.

II. If any person fails to make payment under paragraph I, the executive director of the fish and game department may:

(a) Order any license, permit, or tag issued by the fish and game department to be suspended or revoked, after due hearing.

(b) Notify the commissioner of the department of health and human services of such nonpayment. The nonpayment shall constitute cause for revocation of any license or certification issued by the commissioner pursuant to RSA 126-A:20 and RSA 151:7.

(c) Notify the director of motor vehicles of such nonpayment and request suspension of the person’s driver’s license pursuant to RSA 263:56.

III. Regardless of a person’s possession of a document satisfying subparagraph I(a), (b), or (c), a person shall be liable to the department for search and rescue response expenses if the person is judged to have done any of the actions listed in RSA 153-A:24, I.

Cite as (Casemaker) RSA 206:26-bb

History. Amended by 2016, 166: 2, eff. 6/3/2016.

Amended by 2016, 166: 1, eff. 6/3/2016.

Amended by 2016, 165: 1, eff. 6/3/2016.

Amended by 2014, 230: 1, eff. 1/1/2015.

Note:

2008, 167:2, eff. June 6, 2008.

Title 12. PUBLIC SAFETY AND WELFARE Chapter 153-A. EMERGENCY MEDICAL AND TRAUMA SERVICES

Reimbursement for Public Agency Response Services Current through Chapter 91 of the 2021 Legislative Session

§ 153-A:24. Responsibility for Public Agency Response Services

I. A person shall be liable for response expenses if, in the judgment of the court, such person:

(a) Negligently operates a motor vehicle, boat, off highway recreational vehicle, or aircraft while under the influence of an alcoholic beverage or controlled drug and thereby proximately causes any incident resulting in a public agency response;

(b) Takes another person or persons hostage or threatens to harm himself or another person, thereby proximately causing any incident resulting in an appropriate public agency response; or

II. A person’s liability under this subdivision for response expenses shall not exceed $10,000 for any single public agency response incident.

Cite as (Casemaker) RSA 153-A:24 Note: 1999, 345:6, eff. July 1, 1999.

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City of Philadelphia liable to a bike ride in a charity event who was injured due to a large pothole.

Posted: June 6, 2023 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

Neither governmental immunity nor a release could stop the lawsuit.

Degliomini v. ESM Prods., Inc. (Pa. 2021)

State: Pennsylvania, Supreme Court of Pennsylvania Eastern District

Plaintiff: Anthony Degliomini and Karen Degliomini

Defendant: Esm Productions, Inc. and City of Philadelphia

Plaintiff Claims: negligence, tort claims act

Defendant Defenses: Governmental Immunity and Release

Holding: For the Plaintiff

Year: 2021

Summary

Plaintiff hit a pothole on a charity ride that rendered him a quadriplegic. He sued the event promoter and the City of Philadelphia for his injuries. Because his injuries occurred on a city street, the release was void under Pennsylvania law because it violated public policy.

The case proceeded to a jury trial, and the plaintiff recovered $3,086,833.19. The Appellate court dismissed the plaintiffs’ claims based on the release. The case was then appealed to the Supreme Court of Pennsylvania.

Prior to trial, the plaintiff settled with Esm Productions and dismissed all other defendants except the city.

Facts

Appellant Anthony Degliomini participated in the May 2015 Philadelphia Phillies Charity Bike Ride (Bike Ride), a twenty-mile ride along a designated route through the streets of South and Center City Philadelphia. During the Bike Ride, Degliomini crashed when he rode into an unmarked and un-barricaded sinkhole on Pattison Avenue in South Philadelphia, which measured sixteen square feet in area and six inches deep. As a result of the crash, Degliomini suffered severe and extensive injuries, including spinal cord injuries leading to incomplete quadriplegia, and multiple bone fractures which required surgical procedures and extensive and ongoing medical treatment. Degliomini and his wife, Karen Degliomini (appellants), filed a negligence action against the City of Philadelphia (the City), event planner ESM Productions, and several other defendants.

The parties litigated pre-trial motions seeking, inter alia, to dismiss appellants’ claims against the City due to governmental immunity pursuant to the Political Subdivision Tort Claims Act, and to bar appellants’ claims of negligence on the basis of the 2015 Phillies Charities Bike Ride Release (the Release), an exculpatory contract prepared by ESM Productions and signed by Mr. Degliomini.

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

Whenever you sue a government entity, city, county, state or the Federal Government, the government entity has the defense of governmental immunity. The Federal Government has one act, and each state has enacted government immunity, and a subsequent tort claims act for each state. The state governmental immunity and tort claims acts usually apply to any political subdivision in that state such as a city or county. Unless the lawsuit fits into one of the exceptions in the state tort claims act, you cannot sue a government entity.

In this case, the plaintiff had to prove the Pennsylvania tort claims act allowed the plaintiff to sue the city and that the release was not valid.

The court started by examining releases under Pennsylvania law.

A valid exculpatory contract fully immunizes a person or entity from any consequences of its negligence. Disfavored under Pennsylvania law, exculpatory contracts are subject to close scrutiny, strictly construed against the party seeking their protection, and enforced only provided certain criteria are met. Our courts have recognized that “lying behind these contracts is a residuum of public policy which is antagonistic to carte blanche exculpation from liability[.]”

The courts analysis ended up much like other states, as long as the release did not violate public policy the release would probably be valid.

Thus, our longstanding precedent explains that an exculpatory provision is enforceable, but only if it “does not contravene public policy, is between parties relating entirely to their private affairs, and where each party is a free bargaining agent so that the contract is not one of adhesion.”

A release does not violate public policy in Pennsylvania if:

An exculpatory contract contravenes public policy when it violates an obvious, “overriding public policy from legal precedents, governmental practice, or obvious ethical or moral standards.

Pennsylvania does not allow a release to protect against reckless or gross negligence.

…However, we have also held that pre-injury exculpatory releases immunizing parties from liability for their reckless or grossly negligent conduct firmly violate public policy — and are therefore not enforceable — because “such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct.”

Releases are also void if the acts were negligent per se.

An exculpatory clause is similarly void as against public policy where it immunizes a party from the consequences of violating a statute or regulation intended to preserve health or safety.

Public policy in Pennsylvania has been defined as:

…i]n the employer-employee relationship[;]” “in situations where one party is charged with a duty of public service,” e.g., public utilities, common carriers, hospitals, airports; in “agreements which attempt to exculpate one from liability for the violation of a statute or regulation designed to protect human life”; and in contracts involving “the limitation of consequential damages for injury to the person in the case of consumer goods[.]”

Releases cannot protect a public policy was supported because:

The issue then turned on whether the city of Philadelphia had a duty to repair the streets.

The parties agreed the city did have a duty to repair the streets and maintain them for the safety of the citizens of Pennsylvania.

The analysis then proceeded to look at the defenses to the claims. First would be whether or not governmental immunity precluded the claim, unless there was an exception in the Tort Claims Act.

The court then looked at the Pennsylvania governmental immunity statute and the Tort Claims Act and found the city could be liable for failing to repair the street.

Since the city had a duty to repair the street, the next defense was the release. Because the city had a duty to repair the street and the street was for the public good, the release was void for violating public policy.

Accordingly, we hold it is contrary to public policy to enforce an exculpatory contract immunizing the City from its essential duty of public service, which exists notwithstanding the context of a recreational event. Any other application of the Release would elevate the City’s private exculpatory contract over the public duties assigned to it and the authority afforded to it by the General Assembly. Under these discrete circumstances, enforcement of the Release would jeopardize the health, safety and welfare of the public at large, and the Release is thus rendered invalid as it violates public policy principles. We therefore reverse the decision of the Commonwealth Court.

So Now What?

Releases are an intricate and complicated law on their own. Throw in the issues of dealing with a political sub-division and protections afforded by government immunity and the loss of protection specifically numerated in a Tort Claims Act, and the case is complicated.

There the release attempted to protect the parties from a duty the City of Philadelphia could not abrogate or avoid. The duty was also based on public transportation, a city street. As such the release was void because it violated public policy, and the suit continued because there was an exception to government immunity afforded by the tort claims act.

Probably there are not going to be any charities using city streets for a while in Philadelphia.

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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

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Degliomini v. ESM Prods., Inc. (Pa. 2021)

Posted: June 6, 2023 | Author: Recreation Law | Filed under: Uncategorized | Leave a comment

ANTHONY DEGLIOMINI AND KAREN DEGLIOMINI, Appellants
v.
ESM PRODUCTIONS, INC. AND CITY OF PHILADELPHIA, Appellees

J-69-2020
No. 5 EAP 2020

SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

ARGUED: September 15, 2020
June 22, 2021

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

Appeal from the Order of Commonwealth Court dated 06/25/2019 at No. 1573 CD 2018, reversing the 10/24/2018 Order of the Court of Common Pleas, Philadelphia County, Civil Division at No. 01601 April Term, 2016.

OPINION

JUSTICE DOUGHERTY

We granted discretionary review to consider the validity of an exculpatory release signed by a participant in a charity bike ride that purports to immunize the City of Philadelphia from liability for breaching its duty to repair and maintain public streets. We hold such a release is unenforceable because it violates public policy, and we therefore reverse.

I. Factual and Procedural Background

Appellant Anthony Degliomini participated in the May 2015 Philadelphia Phillies Charity Bike Ride (Bike Ride), a twenty-mile ride along a designated route through the streets of South and Center City Philadelphia. During the Bike Ride, Degliomini crashed when he rode into an unmarked and un-barricaded sinkhole on Pattison Avenue in South Philadelphia, which measured sixteen square feet in area and six inches deep. As a result of the crash, Degliomini suffered severe and extensive injuries, including spinal cord injuries leading to incomplete quadriplegia,1 and multiple bone fractures which required surgical procedures and extensive and ongoing medical treatment. Complaint at ¶¶3-4. Degliomini and his wife, Karen Degliomini (appellants), filed a negligence action against the City of Philadelphia (the City), event planner ESM Productions, and several other defendants.2

The parties litigated pre-trial motions seeking, inter alia, to dismiss appellants’ claims against the City due to governmental immunity pursuant to the Political Subdivision Tort Claims Act, 42 Pa.C.S. §§8541-8564 (Tort Claims Act), and to bar appellants’ claims of negligence on the basis of the 2015 Phillies Charities Bike Ride Release (the Release), an exculpatory contract prepared by ESM Productions and signed by Mr. Degliomini. The Release states, in relevant part:

I know that participating in an organized bike ride such as the 2015 Phillies Charities Bike Ride is a potentially hazardous activity. I should not enter and bike unless I am medically able and properly trained. I understand that bicycle helmets must be worn at all times while participating in the event and I agree to comply with this rule. I further understand and agree that consumption of alcoholic beverages while operating a bicycle is a violation of the law and strictly prohibited. I know that there will be traffic on the course route and I assume the risk of biking in traffic. I also assume any and all other risks associated with participating in the event, including but not limited to falls; contact with other participants; the effects of the weather; the condition of the roads; and unsafe actions by other riders, drivers, or non-participants. I consent to emergency medical care and transportation in the event of injury, as medical professionals deem appropriate.

All such risks being known and appreciated by me, and in consideration of the acceptance of my entry fee, I hereby, for myself, my heirs, executors, administrators and anyone else who might claim on my behalf, promise not to sue and I release and discharge The Phillies, Phillies Charities, Inc., any and all sponsors of the event, the City of Philadelphia, Philadelphia Authority for Industrial Development, Philadelphia Industrial Development Corporation, ESM Productions, and each of their respective affiliates, owners, partners, successors and assigns and each of their respective officers, employees, agents, and anyone acting for or on their behalf, and all volunteers (collectively, the “Releasees”), from any and all claims of liability for death, personal injury, other adverse health consequence, theft or loss of property or property damage of any kind or nature whatsoever arising out of, or in the course of, my participation in the event even if caused by the negligence of any of the Releases. This Release extends to all claims of every kind or nature whatsoever.

* * *

I, intending to be legally bound, represent that I am at least eighteen years old; either I am registering to enter this event for myself or as a parent or guardian of a minor who is at least thirteen years old; I have carefully read and voluntarily agree to this Release on behalf of myself and, if applicable, the minor who is being registered to participate, and I understand its full legal effect.

Trial Court Exhibit D-4. Appellants responded the City was not entitled to statutory immunity because an exception for dangerous conditions on City-owned streets applied;3the City breached its duty to maintain and repair City streets as provided in Philadelphia’s Home Rule Charter;4 the Release should not apply to bar their claims because the sinkhole existed well before the Bike Ride and therefore the City’s negligence occurred before the Release was ever signed; and the Release was unenforceable because it violates public policy by improperly immunizing the City from any consequence of breaching its duty of public safety imposed by the Home Rule Charter.

The trial court rejected the City’s argument that the negligence action was barred by the Release, and the matter proceeded to a jury trial. Appellants presented civil engineering and roadway management expert testimony from Richard Balgowan, a forensic engineer and certified public works manager, who stated the sinkhole existed in October 2014, approximately eight months prior to the Bike Ride. See N.T. 2/27/2018 at 26, 45-47. Appellants’ evidence further demonstrated the City had knowledge of the sinkhole as it had previously applied patching material to fill it months prior to the Bike Ride, but did not block the area or complete the repair to the subterranean void causing the pavement to sink. See id. at 30-35 (expert testimony discussing different texture and color of material in sinkhole indicated someone from streets department attempted to temporarily fill the sinkhole but did not complete a standard repair). The jury concluded the City was negligent and awarded $3,086,833.19 in damages to Mr. Degliomini and $100,000 to Mrs. Degliomini for her loss of consortium.5

The parties filed post-trial motions. Appellants sought and were awarded delay damages; the City moved for judgment notwithstanding the verdict (JNOV) based on the Release, which was denied. The trial court explained the Tort Claims Act specifically imposes an exception to immunity when the City has actual or constructive notice of a dangerous condition of the streets, and, under the Home Rule Charter, the City has a mandatory duty to maintain and repair City streets, which was breached and caused damages to appellants. Degliomini v. Philadelphia Phillies, 2018 WL 11243021 at *2-4. Specifically, relying on appellants’ unrebutted expert evidence that the City placed patch material in an attempt to fill the sinkhole without repairing the underground void that created the sinkhole, the trial court determined the City’s actions in negligently undertaking to repair the sinkhole resulted in a non-waivable “catalyst for liability” which existed months prior to preparations for the Bike Ride. Id. at *3 (internal quotations and citation omitted). The court thereby concluded the Release was not valid as it violated public policy by exculpating the City from liability for conduct that breaches its exclusive duty to the public set forth in the Home Rule Charter. See id. at *6-8, quoting Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010) (“It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy.”). The trial court entered judgment on the verdict which was molded to include delay damages, and a reduction to reflect the statutory cap.6 The City filed an appeal.

A three-judge panel of the Commonwealth Court reversed. Degliomini v. ESM Prods., Inc., No. 1573 C.D. 2018, 2019 WL 2587696 (Pa. Cmwlth., June 25, 2019) (unpublished memorandum). Though the panel agreed the dispositive issue regarding the validity of the Release was whether it contravenes public policy, it also observed Pennsylvania courts have consistently upheld exculpatory releases pertaining to recreational activities as non-violative of public policy, and therefore valid and enforceable. See id. at *3 (collecting cases). Rather than considering Section 5-500 of the Philadelphia Home Rule Charter as establishing a mandatory duty, the panel regarded it instead as an “organizational section” mandating the creation of the Department of Streets to perform certain functions, but providing no standard of care or guidelines for how the Department must accomplish its road repair duties; thus, the panel reasoned the City’s street maintenance obligation under the Charter was no different than any common law duty of reasonable care, which can be waived via a valid release. Id. at *4. The panel relied on its decisions in Vinikoor v. Pedal Pa., Inc., 974 A.2d 1233, 1240 (Pa. Cmwlth. 2009) (release precluded recovery against self-inflicted injuries caused by known risks on road during bike race and did not violate public policy), and Scott v. Altoona Bicycle Club, No. 1426 C.D. 2009, 2010 WL 9512709 at *4-5 (Pa. Cmwlth., July 16, 2010) (unpublished memorandum) (exculpatory agreement between bike race participant and municipality was a private agreement and did not violate public policy), to conclude: the Release was a private agreement between appellant Degliomini and various entities including the City; appellant was under no obligation to sign the Release or participate in the Bike Ride; and the Bike Ride was a private event on public roads and the City’s involvement was akin to that of a private property owner. Id. The Commonwealth Court therefore held, because the Release did not violate public policy, it was valid and enforceable to bar appellants’ claims against the City, and the trial court erroneously denied the City’s request for JNOV. Id.

Upon appellants’ petition, we granted review of the following questions:

1. Can the City of Philadelphia contractually immunize itself from tort liability for breaching a mandatory public safety duty which has existed for decades under common law, and which is now codified and/or imposed under Pennsylvania’s Tort Claims Act and Philadelphia’s Home Rule Charter?

2. Does the Phillies’ exculpatory Release immunize the City from liability for negligently repairing its road hazard before the parties drafted or entered the Release, and long before the event covered by the Release?

Degliomini v. ESM Prods., Inc., 223 A.3d 670 (Pa. 2020) (per curiam). These are pure questions of law over which our standard of review is de novo and our scope of review is plenary. See Reott v. Asia Trend, Inc., 55 A.3d 1088, 1093 (Pa. 2012). For the most part, the parties treat the two issues as intertwined, and we proceed to consider their arguments mindful of the applicable standard.

II. Arguments

In support of the trial court’s determination the Release is unenforceable as against public policy, appellants argue that only the legislature has the authority to confer immunity upon political subdivisions and, by enacting the Tort Claims Act, the legislature expressly determined cities “shall be liable for damages” resulting from known dangerous street conditions; therefore, according to appellants, the City cannot immunize itself by contract for conduct where the legislature has expressly waived its immunity. Appellants’ Brief at 12-17, quoting 42 Pa.C.S. §8542(a). See id., citing, inter alia, Carroll v. York Cty., 437 A.2d 394, 396 (Pa. 1981) (extent of a municipality’s powers is determined by the legislature); Dorsey v. Redman, 96 A.3d 332, 340 (Pa. 2014) (legislature is the exclusive body with authority to confer immunity upon political subdivisions); City of Philadelphia v. Gray, 633 A.2d 1090, 1093-94 (Pa. 1993) (city ordinance cannot waive immunity conferred by Tort Claims Act). Recognizing the purpose of the Tort Claims Act’s immunity provision is to protect against public fiscal risks, appellants observe the Judicial Code explicitly provides both a statutory limitation on damages against a local agency, and the authority for local agencies to purchase liability insurance and enter joint insurance contracts in order to mitigate risk exposure. Appellants further note, however, the Code does not mention exculpatory contracts. Id. at 16-17 n.5. See 42 Pa.C.S. §§8553, 8564. Appellants contend there is an important distinction between permissible indemnity contracts wherein another party agrees to bear cost of damages if the government is held liable, and exculpatory contracts wherein the government would be immunized from being held liable at all, which is not permissible under these circumstances because the legislature foreclosed the defense of tort immunity via the Act’s exception for known dangerous street conditions. Id. at 17.

In addition, appellants indicate exculpatory clauses have been found to violate public policy when, inter alia, they release a party charged with a duty of public service, release a party for violating a statute or regulation designed to protect human life, or “‘would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct.'” Id. at 19-22, quoting Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190, 1203 (Pa. 2012). See id., citing, inter alia,; Boyd v. Smith, 94 A.2d 44, 45-46 (Pa. 1953) (lease contract exculpating landlord from liability “caused by any fire” violated public policy where landlord did not comply with fire safety legislation “intended for the protection of human life”); Leidy v. Deseret Enters., Inc., 381 A.2d 164, 167-68 (Pa. Super. 1977) (“courts have found contracts against liability contrary to public policy . . . in situations where one party is charged with a duty of public service”) (additional citations omitted). They assert the City has a mandatory, non-delegable “public safety” duty to repair street hazards upon actual or constructive notice of them, and this duty has existed at common law for decades. See id. at 18, citing, inter alia, Drew v. Laber, 383 A.2d 941, 943 (Pa. 1978) (“Under Pennsylvania law a municipality is required to construct and maintain its highways in such a manner as to protect travelers from dangers which, by the exercise of normal foresight, careful construction and reasonable inspection, can be anticipated and avoided.”) (internal quotation omitted). They further assert this duty was later preserved and codified in the Philadelphia Home Rule Charter — which has the force of statute and expressly states the City’s Department of Streets has the duty to repair and maintain city streets — and the Tort Claims Act — which contains the exception to governmental immunity for dangerous street conditions. See id. at 27-29, citing Harrington v. Carroll, 239 A.2d 437, 438 (Pa. 1968) (“That the [Philadelphia Home Rule] Charter constitute[s] legislation no less than does a statute of the legislature to like end is too plain for even cavil.”); Philadelphia Home Rule Charter §5-500(a)(1); 42 Pa.C.S. §8542(b)(6)(i). Appellants indicate this duty is not a sweeping source of liability for all dangerous street conditions, but, per the statutes, is instead a bare minimum duty of care that attaches to liability only when the City “‘had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.'” Id. at 21-22, quoting 42 Pa.C.S. §8542(b)(6)(i). They argue that allowing ad hoc contract exceptions to the legislative waiver of immunity would disincentivize the City from discharging its bare minimum duty of care at the precise time when the City’s known or reasonably knowable street hazards pose the most danger — i.e., during events, when streets are congested with onlookers and event participants — and would thereby “jeopardize the health, safety, and welfare of the people[.]” Id. at 22, quoting Tayar, 47 A.3d at 1203.

Appellants further emphasize the City’s duty to maintain public streets is distinct from the duty of owners of private property such as a race track or ski resort hosting a non-essential sporting event, contending the legislature stripped the City of tort immunity for breaching this specific duty under the Tort Claims Act streets exception. And, in contrast to other cases where exculpatory contracts conditioning recreational use of private property upon the execution of a release did not violate public policy, the City’s duty to maintain and repair the street does not arise from use of the property conditioned upon execution of the Release, but exists independently from the Release and the Bike Ride event to ensure public safety. As a result, argue appellants, the duty cannot be waived by contract. See id. at 23-25, comparing Boyd, 94 A.2d at 45-46 (liability for breaching public safety duty to provide fire escape could not be waived by contract between a landlord and tenant) with, e.g., Chepkevich, 2 A.3d 1174 (alleged duty arose from plaintiff’s use of defendant’s ski facility which was conditioned upon her first signing an exculpatory release); Appellants’ Reply Brief at 10.

Lastly, appellants argue that exculpatory releases are strictly construed against the party seeking immunity, and the text of this Release is not sufficiently clear to immunize the City for negligence that occurred before the Bike Ride and before the parties entered the Release. See id. at 29-30, citing, inter alia, Emp’rs Liability Assur. Corp. v. Greenville Bus. Men’s Assoc., 224 A.2d 620, 623-24 (Pa. 1966) (exculpatory clauses construed against party seeking immunity; “If a party seeking immunity from liability for negligent conduct intends exculpation for past as well as future negligent conduct it is his obligation to express in the agreement such intent in an unequivocal manner; absent a clear expression of intent, the clause of exculpation will not be so construed.”). Appellants focus on language in the second paragraph, which releases the City of liability from “claims of liability for . . . personal injury . . . arising out of, or in the course of, . . . participation in the event even if caused by the negligence of any of the Releasees.” Id. at 30, quoting the Release (emphasis added by appellants). Appellants view the City’s negligence as occurring long before the Bike Ride, when the City patched but failed to complete repair of the sinkhole. Though recognizing the Release contains language that participants assume risks associated with “the condition of roads,” appellants contend the phrase cannot reasonably be construed to cover hazardous road conditions for which the City was on notice and which were caused by the City’s prior negligent repair of a known dangerous condition that, at a minimum, should have been marked with paint or barriers along the route, consistent with Mr. Degliomini’s experience in similar charity bike ride events. See id. at 31-32.

In response, the City concedes it has a longstanding duty to maintain its streets for ordinary and essential use, such as everyday walking, bicycling, or driving, but emphasizes the duty was created by common law, not the Tort Claims Act or Home Rule Charter, and — just as any private landowner would be able to do — the City can release itself from liability for breach of that duty by an exculpatory contract involving non-essential, recreational use of the streets. See City’s Brief at 18-19, 24-25. In support of this position, the City raises two key elements to its argument. First, it argues not enforcing such a release would be contrary to the overriding purpose of the Tort Claims Act, which is to limit municipal liability and preserve the public fisc by providing absolute immunity for acts of negligence subject to a few, narrowly-construed exceptions. Id. at 19, 21 (emphasis provided by the City); see id. at 22-23, citing Dorsey, 96 A.3d at 341 (“exceptions to the absolute rule of immunity expressed in the statute must be narrowly interpreted given the expressed legislative intent to insulate political subdivisions from tort liability”) (internal citations and quotations omitted). Second, by the express terms of the Act, the General Assembly deliberately placed municipalities on equal footing with private defendants, allowing for liability only if “[t]he damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under [governmental or official immunity].” See id. at 24, quoting 42 Pa.C.S. §8542(a)(1). The City contends these public policy principles are evident from the explicit text of the Act as well as its legislative history. It was enacted to codify the principle of governmental immunity shortly after this Court abrogated its common law predecessor.7 The enactment was based upon recommendations of the Joint State Government Commission tasked with the study of sovereign immunity laws, which described, inter alia, the rejection of a general waiver of immunity in favor of the enumeration of limited specific waivers, the difficulty municipalities face in obtaining insurance against risks, the intention to retain immunity as the rule while specific waivers would be the exception, and the intention that these waivers “‘merely [ ] remove the bar from suit where the cause of action already exists in the enumerated areas,'” to allow existing causes of action to play out before the courts just as they would against a private defendant. Id. at 22-24, 26 quoting “Sovereign Immunity,” Pennsylvania General Assembly, Joint State Government Commission at 11 (May 1978). As there is no explicit statutory text prohibiting municipalities from limiting their liability through exculpatory contracts, the City contends the Release is consistent with the Tort Claims Act’s central goal of limiting liability, and not antagonistic to public policy. See id. at 20-21, 25-26.

The City further argues Pennsylvania courts express “great reluctance” to disrupt parties’ freedom of contract on public policy grounds, having consistently upheld waivers of liability for ordinary negligence in connection with recreational events like the Bike Ride, and invalidating private contractual agreements only when a “‘dominant public policy'” found in “‘long governmental practice or statutory enactments, or [ ] obvious ethical or moral standards,'” id. at 12-14, quoting Williams v. GEICO Gov’t Emps. Ins. Co., 32 A.3d 1195, 1200 (Pa. 2011), sufficiently justifies invalidating the contract, and this is not the case when a policy is merely consistent with one of several competing goals of a statute, but rather demands “‘a public policy overriding every other consideration in contract construction.'” Id. at 26, quoting Heller v. Pa. League of Cities & Muns., 32 A.3d 1213, 1221 (Pa. 2011) (internal quotation omitted). See id. at 13-14, citing, inter alia, Tayar, 47 A.3d at 1200 (“exculpatory clauses that release a party from negligence generally are not against public policy”). The City emphasizes that liability waivers for recreational activities do not concern public policy because such activities are voluntary and the signer is under no obligation to participate in the activity. Id. at 14-15, citing, inter alia, Chepkevich, 2 A.3d at 1191 (“signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity. . . . The signer is a free agent who can simply walk away without signing the release and participating in the activity”) (citations omitted).8 In the City’s view, Mr. Degliomini had complete freedom to reject the Release, and the City was not performing an essential service by hosting the Bike Ride, which did not involve the public’s ordinary, essential use of the streets such as an everyday bicycle commute — instead, the Bike Ride was a time-limited event involving hundreds of cyclists moving steadily in a pack without having to stop for traffic lights or stop signs, making it more difficult to see and avoid road hazards. Id. at 15-16. The City submits its role in the Bike Ride was identical to that of a host of a private recreational, non-essential event. See id. at 16.

The City further asserts there is no broad public policy exception against contracts affecting public safety or reducing incentives to act with due care, and such an exception would cause nearly all exculpatory clauses to violate public policy. Instead, according to the City, non-waivable essential duties or entities “charged with a duty of public service” includes employer-employee relationships and the essential, ordinary use of public utilities, common carriers, and hospitals, but not recreational use of grounds for events such as charity bike rides. See id. at 15, citing RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY §2 cmt. e (2000); id. at 16-18 & 17 n. 4, citing Toro, 150 A.3d at 973; RESTATEMENT (SECOND) OF CONTRACTS §195 cmt. a (1981). Additionally, the City suggests non-waivable violations of health and safety statutes apply only to regulations setting specific standards of care such that violation of the statute would constitute negligence per se. See id. at 17 n.5, citing, inter alia, Boyd, 94 A.2d at 46; Warren City Lines, Inc. v. United Ref. Co., 287 A.2d 149 (Pa. Super. 1971) (violation of Fire Marshal’s regulation was negligence per se and could not be waived by contract’s exculpatory clause). The City argues enforcing the Release does not implicate any of these public safety concerns; further, cases that have held exculpatory agreements were invalid as violative of public policy for “jeopardiz[ing] the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct” — Tayar, supra, and Feleccia v. Lackawanna Coll., 215 A.3d 3, 20 (Pa. 2019) — involved claims of recklessness or gross negligence rather than ordinary negligence which is at issue here, and the City’s incentive to repair its roads remains intact because an individual can still sue for a sinkhole-related injury arising from ordinary use of the street outside the parameters of the Release. See City’s Brief at 18.

Regarding appellants’ reliance on the Home Rule Charter, the City argues the Charter is merely organizational and provides the City with the role of repairing roads, but does not create any duty to users of the roads or streets. See id. at 27. Because the Home Rule Charter is silent with respect to the question of tort liability and contractual waivers of liability, the City argues the Release does not conflict with any express or implicit policy set forth in the Home Rule Charter. Rather, the City suggests the Release is enforceable because it is an exculpatory contract associated with a voluntary recreational activity.

Finally, the City argues the language of the Release is unambiguous and plainly applies to any personal injury that occurred during the Bike Ride due to a “condition of the roads.” Id. at 28. Disclaiming appellants’ reliance on Employers Liability, the City distinguishes its central holding — i.e., a residential lease’s language was not sufficiently clear to waive liability for a hidden defect that existed prior to the contract — as limited to the context of leases, in which parties are contemplating a status which will be created in the future after the lessee receives a property free of defects; in contrast, the City argues no reasonable cyclist would expect to receive a public road in perfect condition. See id. at 29-30, citing Employers Liability, 224 A.2d at 622-24. Moreover, the City indicates the Release does contain specific language that participants waived “‘any and all claims of liability . . . even if caused by the negligence of any of the Releasees'” and that participants assumed all risks relating to the “‘condition of the roads,'” including all road defects. Id. At 31-32, quoting the Release. The City asserts it is unreasonable to interpret “condition of the roads” to pertain only to potholes that formed after the Release was signed. Id. at 32.9

III. Legal Background

We now turn to our analysis of the issues presented within the context of the applicable legal principles. Importantly, the City does not contest it has a duty derived from common law to maintain its streets for ordinary use by the public; therefore the primary operative question is whether the City may contractually immunize itself against consequences of breaching that duty when the use of the street is a non-essential, voluntary, recreational function. And, because our answer to this question is dispositive, we need not reach the second issue on appeal, regarding the sufficiency of the Release’s language to immunize the City from liability for negligence that pre-existed execution of the Release.

A valid exculpatory contract fully immunizes a person or entity from any consequences of its negligence. See 57A Am. Jur. 2d Negligence §47; Valhal Corp. v. Sullivan Assocs., Inc., 44 F.3d 195, 202 (3d Cir. 1995), citing, e.g., Topp Copy Prods., Inc. v. Singletary, 626 A.2d 98, 99 (Pa. 1993). Disfavored under Pennsylvania law, exculpatory contracts are subject to close scrutiny, strictly construed against the party seeking their protection, and enforced only provided certain criteria are met. See Employers Liability, 224 A.2d at 623 (“[C]ontracts providing for immunity from liability for negligence must be construed strictly since they are not favorites of the law . . . such contracts must be construed with every intendment against the party who seeks the immunity from liability[.]”) (internal quotations and citations omitted); Tayar, 47 A.3d at 1199, 1200 & n.8 (exculpatory clauses “enforceable provided certain criteria are met”), citing, inter alia, Topp Copy, 626 A.2d at 99; Feleccia, 215 A.3d at 16. Our courts have recognized that “lying behind these contracts is a residuum of public policy which is antagonistic to carte blanche exculpation from liability[.]” Phillips Home Furnishings, Inc. v. Cont’l Bank., 331 A.2d 840, 843 (Pa. Super. 1974), rev’d on other grounds, 354 A.2d 542 (Pa. 1976); see also, e.g., Soxman v. Goodge, 539 A.2d 826, 828 (Pa. Super. 1988) (contracts providing “carte blanche” exculpation from liability are disfavored as contrary to public policy and must be strictly construed). Thus, our longstanding precedent explains that an exculpatory provision is enforceable, but only if it “does not contravene public policy, is between parties relating entirely to their private affairs, and where each party is a free bargaining agent so that the contract is not one of adhesion.” Chepkevich, 2 A.3d at 1177, citing Topp Copy, 626 A.2d at 99; see also Feleccia, 215 A.3d at 19; Tayar, 47 A.3d at 1199.

Generally speaking, an exculpatory clause withstands a challenge based on public policy if “‘it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or State.'” Employers Liability, 224 A.2d at 622-23, quoting Dilks v. Flohr Chevrolet, Inc., 192 A.2d 682, 687 (Pa. 1963); see also RESTATEMENT (SECOND) OF TORTS §496B (1965) (“A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.”). An exculpatory contract contravenes public policy when it violates an obvious, “overriding public policy from legal precedents, governmental practice, or obvious ethical or moral standards.” Tayar, 47 A.3d at 1199, citing Williams, 32 A.3d at 1200. An otherwise valid contract will not be voided in favor of a vague public policy goal; rather, this Court requires that to support such a heavy-handed result, the alleged public policy must be:

ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. . . . [T]here must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy[.] . . . Only dominant public policy would justify such action. In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, the Court should not assume to declare contracts . . . contrary to public policy. The courts must be content to await legislative action.

Williams, 32 A.3d at 1200 (citation omitted).

This Court has observed that pre-injury exculpatory clauses releasing a party from ordinary negligence generally are not against public policy, see Tayar, 47 A.3d at 1199-1200, citing, e.g., Chepkevich; however, we have also held that pre-injury exculpatory releases immunizing parties from liability for their reckless or grossly negligent conduct firmly violate public policy — and are therefore not enforceable — because “such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct.” Id. at 1203 (relating to reckless conduct); Feleccia, 215 A.3d at 20 (relating to gross negligence).

An exculpatory clause is similarly void as against public policy where it immunizes a party from the consequences of violating a statute or regulation intended to preserve health or safety. In Boyd, we determined the General Assembly’s enactment of a statute requiring tenements to be equipped with fire escapes avoided an exculpatory provision in a residential lease that purported to relieve the landlord, who did not supply a fire escape, of liability for negligence when the building’s residents were severely burned in a fire. Boyd, 94 A.2d 44. The Court stated,

in such event public policy does not permit an individual to waive the protection which the statute is designed to afford him. . . . “Statutes grounded on public policy are those which forbid acts having a tendency to be injurious to the public good. . . . Where public policy requires the observance of a statute, it cannot be waived by an individual or denied effect by courts, since the integrity of the rule expressed by the Legislature is necessary for the common welfare.” . . . “Where the legislature has, by definite and unequivocal language, determined the public policy of this Commonwealth with regard to a particular subject, that pronouncement cannot be set aside and rendered unenforceable by a contract between individuals.”

Id. at 46, quoting, respectively, In re McCurdy’s Estate, 154 A. 707, 709 (Pa. 1931) and Bell v. McAnulty, 37 A.2d 543, 544 (Pa. 1944); see also Warren City Lines, Inc. v. United Refining Co., 287 A.2d 149, 151-52 (Pa. Super. 1971) (negligent violation of a regulation intended for the protection of the public renders an exculpatory clause invalid against public policy; contract could not, as a matter of law, relieve oil and gas company of liability for alleged negligent equipment maintenance performed in violation of State Fire Marshal’s safety regulations).

In Leidy, the Superior Court, incorporating a survey of jurisdictions, further identified several categories of exculpatory contracts where releases of liability for negligent conduct violate public policy, including: “[i]n the employer-employee relationship[;]” “in situations where one party is charged with a duty of public service,” e.g., public utilities, common carriers, hospitals, airports; in “agreements which attempt to exculpate one from liability for the violation of a statute or regulation designed to protect human life”; and in contracts involving “the limitation of consequential damages for injury to the person in the case of consumer goods[.]” Leidy, 381 A.2d at 167-68 (internal quotations and citations omitted); see also Hinkal v. Pardoe, 133 A.3d 738, 747-49 (Pa. Super. 2016) (Lazarus, J., dissenting) (emphasizing duty of public service, expressing the view that a gym membership contract involving personal training services implicated public health and safety concerns such that exculpatory release violated public policy); State Farm Fire & Cas. Co. v. PECO, 54 A.3d 921, 931-35 (Pa. Super. 2012) (Wecht, J., concurring and dissenting) (viewing public utility tariff’s limitation of liability as an exculpatory clause that was void as against public policy where utility was “charged with a duty of public service”).

The view that parties charged with a duty of public service cannot contractually exculpate themselves from liability for negligent conduct is consistent with both our precedent generally upholding releases of liability for the ordinary negligence of private parties, and the law across other jurisdictions recognizing a clear public policy violation where the party seeking exculpation is engaged in performing a service of significant importance or practical necessity to members of the public. See RESTATEMENT (SECOND) OF TORTS §496B cmt. g (“Where the defendant is a common carrier, an innkeeper, a public warehouseman, a public utility, or is otherwise charged with a duty of public service, and the agreement to assume the risk relates to the defendant’s performance of any part of that duty, it is well settled that it will not be given effect. Having undertaken the duty to the public, which includes the obligation of reasonable care, such defendants are not free to rid themselves of their public obligation by contract, or by any other agreement.”); 17A C.J.S. Contracts §73 (1963) (“The rule invalidating contracts exempting from liability for negligence is frequently limited to the principle that parties cannot stipulate for protection against liability for negligence in the performance of a legal duty or a duty of public service, where a public interest is involved or a public duty owed, or, when the duty owed is a private one, where public interest requires the performance thereof.”); 57A Am. Jur. 2d Negligence §56 (“No person can, by agreement, exempt himself or herself from liability for negligence in the performance of a duty imposed upon him or her by law, especially a duty imposed upon him or her for the benefit of the public.”); 8 Williston on Contracts §19:31 (4th ed.) (“Generally, whenever there is a relationship involving a necessary public service, an agreement exempting the provider from its duties in that role is invalid.”).

The parties agree the City has a duty, derived from common law, to repair and maintain its streets for their ordinary and necessary use by the public, and the City concedes it may be held liable for injuries caused by its negligent failure to do so. See City’s Brief at 18. The common law cause of action for negligent beach of a municipality’s non-delegable duty to repair dangerous street conditions is perhaps older than most of Philadelphia’s streets themselves; recognized and enforced for over a century, the duty withstood the evolution of governmental immunity in Pennsylvania throughout the late-nineteenth and twentieth centuries, which otherwise shielded municipalities and their employees from tort liability in most circumstances as a rule with few exceptions. See, e.g., Drew v. Laber, 383 A.2d 941, 943 (Pa. 1978) (“Under Pennsylvania law a municipality is required to construct and maintain its highways in such a manner as to protect travelers from dangers which, by the exercise of normal foresight, careful construction and reasonable inspection, can be anticipated and avoided.”) (internal quotation omitted); Good v. Philadelphia, 6 A.2d 101, 102 (Pa. 1939) (“[T]he liability of a municipality for injuries suffered as a result of defects in the highway arises only when it has notice, actual or constructive, of the existence of a dangerous condition.”); Lawrence v. City of Scranton, 130 A. 428, 430 (Pa. 1925) (“The primary duty of keeping its streets in travelable condition is on the city. When public safety is concerned, this duty cannot be delegated to others.”) (internal quotation and citation omitted); Harvey v. City of Chester, 61 A. 118, 118 (Pa. 1905) (“The primary duty of keeping its streets in travelable condition is on the city, and, while it may turn over their control to an independent contractor for specified purposes and limited time, it cannot by contract relieve itself indefinitely from its duty in that regard.”); see also Ayala v. Philadelphia Bd. of Pub. Educ., 305 A.2d 877, 879-81 (Pa. 1973) (describing evolution of common law governmental immunity doctrine).

In 1973, this Court categorically abolished the common law defense of governmental immunity to tort liability in Ayala, 305 A.2d at 878, and similarly abrogated the companion doctrine of sovereign immunity regarding claims against Commonwealth entities in Mayle v. Pa. Dep’t of Highways, 388 A.2d 709, 720 (Pa. 1978). But, in response, the General Assembly enacted the Tort Claims Act, 42 Pa.C.S. §§8541-8564, and the Sovereign Immunity Act, 42 Pa.C.S. §§8521-8528, reinstating the general rule of governmental and sovereign immunity from tort liability with the force of legislation, and enumerating a limited number of exceptions where the protection was waived, including such an exception for certain known or reasonably knowable dangerous conditions of the streets. In its current form, the Tort Claims Act provides, in its first section, “Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” 42 Pa.C.S. §8541. The Act’s second section, titled “Exceptions to governmental immunity,” provides for nine enumerated exceptions to immunity, stating, in relevant part:

(a) Liability imposed.–A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):

(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and
(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, “negligent acts” shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.

(b) Acts which may impose liability.–The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:

* * *

(6) Streets.–

(i) A dangerous condition of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.

Id. §8542. Where an exception to governmental immunity applies, the Act additionally provides a limitation on damages, see id. §8553(b) (damages “shall not exceed $500,000 in the aggregate”), and permission and parameters for the purchase and use of liability insurance policies by municipalities and their employees, see id. §8564. We have interpreted the Tort Claims Act’s immunity provision broadly as an “absolute” and “not waivable” shield to liability, which in turn necessitates the narrow construction of the enumerated, “exclusive” exceptions. Gray, 633 A.2d at 1093; see Dorsey, 96 A.3d at 341 (“[I]n interpreting the Tort Claims Act, exceptions to the absolute rule of immunity expressed in the statute ‘must be narrowly interpreted given the expressed legislative intent to insulate political subdivisions from tort liability.'”) (quoting Mascaro v. Youth Study Ctr., 523 A.2d 1118, 1123 (Pa. 1987)). In ascertaining the Act’s legality and legislative intent, we have repeatedly observed its provisions were based on the report and recommended text prepared by the General Assembly’s Joint State Government Commission tasked with analyzing the benefits and costs of the sovereign immunity defense. See Sovereign Immunity, Pennsylvania General Assembly, Joint State Government Commission (May 1978), http://jsg.legis.state.pa.us/resources/documents/ftp/publications/1978-05-01%201978%20Sovereign%20Immunity.pdf (last visited June 21, 2021); see Carroll, 437 A.2d at 397 (quoting Sovereign Immunity); Zauflik v. Pennsbury Sch. Dist., 104 A.3d 1096, 1121, 1124, 1130 (Pa. 2014) (discussing Sovereign Immunity). The Commission’s report makes clear the Act’s provisions are intended to “assure[] that the Commonwealth will not be required to process and defend various litigation brought against it in areas where risk management is totally uncertain” and “prohibit the creation of any new causes of action and merely [ ] remove the bar from suit where the cause of action already exists in the enumerated areas.” Sovereign Immunity at 10-11.

We have also considered the interplay between the Tort Claims Act and Sovereign Immunity Act with other laws.10 In Dorsey, though mindful of the strictures of the Tort Claims Act’s exclusive immunity exceptions, this Court determined that another statute, depending upon its particular construction and the timing of its enactment, might permissibly allow governmental liability for circumstances outside of Section 8542. Dorsey, 96 A.3d at 341-42 (holding the Tort Claims Act does not provide immunity for cause of action arising from breach of Section 3172 of the Probate, Estates and Fiduciaries Code, which confers liability upon the register of wills). And, in Dep’t of Envtl. Res. v. Auresto, 511 A.2d 815 (Pa. 1986), a case relied upon by the City, the Court considered whether the Recreational Use of Land and Water Act, 68 P.S. §§477-1 – 477-8, which provides tort immunity for landowners who allow public use of their property free of charge, could protect the Commonwealth from liability notwithstanding the Sovereign Immunity Act’s waiver of immunity for injuries caused by a dangerous condition on Commonwealth-owned real estate. Noting the Recreation Act was enacted prior to the Sovereign Immunity Act, at which time sovereign immunity was the blanket rule at common law, the Auresto Court reasoned the legislature would not have anticipated the possibility of Commonwealth liability; in addition, because the Sovereign Immunity Act was intended to expose the Commonwealth to the same liability as a private citizen, and a private citizen would have a statutory immunity defense, the Court determined the Commonwealth also had the protection of the particular immunity defense. Auresto, 511 A.2d at 817.

In contrast to these decisions in Dorsey and Auresto, where this Court approved of particular liability and immunity provisions supplied by other statutes which fell outside the parameters of, but were read in pari materia with, the governmental immunity acts, we have refused to adjust those boundaries to accommodate a local government ordinance: in Gray, we invalidated a Philadelphia ordinance which waived immunity for the negligent acts of police, finding it authorized the imposition of damages in situations not within Section 8542 of the Tort Claims Act, and “[t]herefore, the ordinance permits what the Act expressly prohibits, and it is thus invalid.” Gray, 633 A.2d at 1093; see also Dorsey, 96 A.3d at 340 (“[O]ur Court has recognized that the legislature is the exclusive body with authority to confer immunity upon political subdivisions.”), citing Gray, 633 A.2d at 1093; Carroll, 437 A.2d at 396 (“[M]unicipal corporations are agents of the state, invested with certain subordinate governmental functions for reasons of convenience and public policy. They are created, governed, and the extent of their powers determined by the [l]egislature and subject to change, repeal or total abolition at its will.”) (citations and quotations omitted).

Furthermore, this Court has interpreted the Tort Claims Act Subsection 8542(b)(6) exception to immunity for dangerous conditions of municipally-owned streets consistently with Subsection 8522(b)(4) of the Sovereign Immunity Act (relating to waiver of immunity for Commonwealth real estate, highways and sidewalks), and held a municipality owes a duty of care to those using its property “to make its highways reasonably safe for their intended purpose,” “such as to require that the condition of the property is safe for the activities for which it is regularly used, intended to be used or reasonably foreseen to be used[.]” McCalla v. Mura, 649 A.2d 646, 649 (Pa. 1994), citing Bendas v. White Deer, 611 A.2d 1184, 1186 (Pa. 1992); see also supra n.9.

We further note that, with specific regard to the streets of Philadelphia, the City’s Home Rule Charter provides, in relevant part:

The Department of Streets shall have the power and its duty shall be to perform the following functions:
(a) City Streets. It shall itself, or by contract, design construct, repair and maintain:

(1) City streets, which shall include highways, roads, streets, alleys, footways, bridges, tunnels, overpasses and underpasses, including approaches and viaducts, owned, controlled or operated by the City or designated in accordance with law as streets of the City[.]

Philadelphia Home Rule Charter §5-500(a)(1). A home rule charter, as defined by the Home Rule Charter and Optional Plans Law, 53 Pa.C.S. §§2901-2984, is “[a] written document defining the powers, structures, privileges, rights and duties of the municipal government and limitations thereon.” 53 Pa.C.S. §2902. This Court has recognized the Home Rule Charter “emanated from the relevant provision of the State Constitution . . . and was duly adopted (i.e., enacted) by the affirmative vote of the electors of the City as the organic law of the corporate municipal body.” In re Addison, 122 A.2d 272, 275-76 (Pa. 1956). “That the Charter constituted legislation no less than does a statute of the legislature to like end is too plain for even cavil. . . . Wherefore, upon its due adoption, Philadelphia’s Home Rule Charter took on the force and status of a legislative enactment.” Id. at 275-76.

IV. Analysis

There is a well-defined public interest in the maintenance and safe repair of dangerous conditions existing on government-owned streets, and the municipal owners are thus charged with a duty of public service to perform such maintenance and repairs as a matter of necessity to members of the public. This dominant public policy is derived from over one hundred years of common law, is codified by statute within the Tort Claims Act, and is reflected by the organizational assignment of explicit duties within the Philadelphia Home Rule Charter.

While the clearly established policy of the Tort Claims Act is to provide an absolute rule of governmental immunity from negligence subject to its few, explicit exceptions without creating new causes of action, it is likewise the clear policy of the Act to codify and define the parameters of those excepted, permissible causes of action. Relevant here, the Tort Claims Act provides “[a] local agency shall be liable for damages on account of an injury to a person” where “damages would be recoverable under common law or a statute” if caused by a non-government entity, for “negligent acts of the local agency” consisting of “[a] dangerous condition of streets owned by the local agency” when the condition created a “reasonably foreseeable risk” of the kind of injury suffered, and when “the local agency had actual notice or could reasonably be charged with notice under the circumstances.” 42 Pa.C.S. §8542(a), (b)(6) (emphasis added). Similarly, though whether the Philadelphia Home Rule Charter creates a duty giving rise to a cause of action, or expresses a dominant public policy, is not squarely before us, what it certainly does do is “define” — with the same legal force as a statute, see In re Addison, 122 A.2d at 275-76 — the City’s mandatory and exclusive responsibility, through its Department of Streets, to “design construct, repair and maintain [ c]ity streets[.]” 53 Pa.C.S. §2902 (definition of “home rule charter”); Philadelphia Home Rule Charter §5-500(a)(1). In furtherance of the Tort Claims Act’s expression of policy to protect the public fisc by limiting municipalities’ exposure to liability, for instances where immunity is waived, the General Assembly provided a statutory cap on the amount of damages recoverable, defined the circumstances under which damages shall be recoverable, authorized local agencies to purchase or administer liability insurance, and prescribed permissible payment planning for judgments not fully indemnified by insurance. 42 Pa.C.S. §§8553, 8559, 8564.11 What the General Assembly did not provide, however, is a mechanism for a municipality to immunize itself, through exculpatory contracts or any other means.

The City is a municipality, an agent of the state, “invested with certain subordinate governmental functions for reasons of convenience and public policy[,] . . .and the extent of [its] powers [is] determined by the [l]egislature[.]” Carroll, 437 A.2d at 396 (citations and quotations omitted). “[T]he legislature is the exclusive body with authority to confer immunity upon political subdivisions” for claims arising out of exceptions to the Tort Claims Act. Dorsey, 96 A.3d at 340 (citation omitted). Because the Release would allow the City to confer immunity upon itself for such claims, the Release prohibits what the Act expressly allows, and would achieve for the City what our jurisprudence plainly prohibits. Id.; cf. Gray, 633 A.2d at 1093-94. “Where the legislature has, by definite and unequivocal language, determined the public policy of this Commonwealth with regard to a particular subject,” — here, the definitive policy to remove the shield of immunity for a municipality’s negligence in the maintenance or repair of dangerous street conditions for which they have proper notice — “that pronouncement cannot be set aside and rendered unenforceable by a contract between individuals.” Boyd, 94 A.2d at 46 (internal quotations omitted). Thus, the Release is invalid because it contravenes public policy.12

We disagree with the City’s position its role is identical to any private host of a recreational or non-essential event that may immunize itself from liability for breach of its duty to maintain safe premises. Though we recognize a plaintiff’s ordinary negligence claims may generally be barred where he voluntarily executes an exculpatory contract in order to participate in such activities, the recreational, non-essential nature of the event is not dispositive in this instance. A private host is not assigned the same mandatory duty of public service as is the City, to maintain its public streets in a condition that is “reasonably safe for their intended purpose,” that is, “safe for the activities for which [they are] regularly used, intended to be used or reasonably foreseen to be used” by the travelling public under the conditions specified by the Tort Claims Act. McCalla, 649 A.2d at 648-49.13 Though the event’s use of the City’s streets may have been time-limited and non-essential, the City’s duty to exercise reasonable care in discharging its independently-derived and essential function of street repair arose long before the Bike Ride. The City’s duty materialized when the City had actual notice or could reasonably be charged with notice of the existence of the sinkhole. Under these circumstances — where the City was charged with an essential public-service duty, and the fact-finder determined the requisite elements of the statutory exception to immunity (including proper notice of a dangerous condition and a reasonably foreseeable risk of injury) had been established — enforcing the Release to immunize the City would jeopardize health, safety, and welfare of the people by removing any incentive for parties to exercise minimal standards of care due to maintain public streets in reasonably safe condition for their reasonably foreseeable uses, such as a planned charity bike ride, where known or knowable dangerous conditions pose great and reasonably preventable risks.14
See Tayar, 47 A.3d at 1203; Feleccia, 215 A.3d at 21; McCalla, 649 A.2d at 648-49; 42 Pa.C.S. §8542(b)(6).

V. Conclusion

Order reversed. Jurisdiction relinquished.

Justices Donohue, Wecht and Mundy join the opinion.

Chief Justice Baer files a dissenting opinion in which Justices Saylor and Todd join.

——–

Footnotes:

1. Incomplete quadriplegia is a condition defined by partial damage to the spinal cord resulting in weakness and decreased sensation in the arms and legs, but the injured person retains some function below the level of the injury. See N.T. 2/26/2018 at 123, 140.

2. Prior to trial, appellants settled with ESM and dismissed the additional defendants; the trial proceeded against the City as the sole remaining defendant. See Degliomini. v. Philadelphia Phillies, No. 1601, 2018 WL 11243021 at *1 (C.P. Philadelphia, Oct. 24, 2018).

3. The Tort Claims Act provides, in relevant part, as follows:

(b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:

* * *

(6) Streets. —

42 Pa.C.S. §8542(b)(6)(i).

4. Philadelphia’s Home Rule Charter provides, in pertinent part, as follows:

The Department of Streets shall have the power and its duty shall be to perform the following functions:

(a) City Streets. It shall . . . repair and maintain:

(1) City streets, which shall include highways, roads, streets, alleys . . . owned, controlled or operated by the City or designated in accordance with law as streets of the City;

* * *

Philadelphia Home Rule Charter §5-500(a)(1).

5. The jury allocated 90% of the negligence to the City and 10% to ESM. See Degliomini v. Philadelphia Phillies, 2018 WL 11243021 at *1.

6.
See 42 Pa.C.S. §8553(b) ($500,000 limitation on damages against local agencies). The final judgment entered was $521,544.52 in damages against the City. Degliomini v. Philadelphia Phillies, No. 1601, 2018 WL 11243022 at *1 (C.P. Philadelphia, Nov. 20, 2018) (amended order).

7.
See Ayala v. Philadelphia Bd. of Pub. Educ., 305 A.2d 877, 881-83 (Pa. 1973) (abolishing common law defense of governmental immunity).

8. The City additionally references a collection of intermediate appellate court cases which uphold the validity of releases of liability for ordinary negligence in connection with recreational activities, including the two cases relied upon by the Commonwealth Court below relating specifically to organized bicycling events. See City’s Brief at 14, citing Toro v. Fitness Int’l LLC, 150 A.3d 968, 974 (Pa. Super. 2016) (using a fitness club); McDonald v. Whitewater Challengers, Inc., 116 A.3d 99, 120-21 (Pa. Super. 2015) (whitewater rafting); Wang v. Whitetail Mountain Resort, 933 A.2d 110, 113-14 (Pa. Super. 2007) (snow tubing); Nissley v. Candytown Motorcycle Club, Inc., 913 A.2d 887, 891 (Pa. Super. 2006) (motorcycle riding); Seaton v. E. Windsor Speedway, Inc., 582 A.2d 1380, 1383 (Pa. Super. 1990) (working in pit crew at auto racing track); Valeo v. Pocono Int’l Raceway, Inc., 500 A.2d 492, 493 (Pa. Super. 1985) (automobile racing); Scott, 2010 WL 9512709 at *4-5 (bicycling event); Vinikoor, 974 A.2d at 1240 (same).

9. The position articulated by Chief Justice Baer in his dissenting opinion aligns substantially with the arguments advanced by the City, specifically: a municipality may be liable only to the extent that a private defendant would be liable, and a private defendant is free to execute an exculpatory release to limit its risk, see Dissenting Opinion at 3; the purpose of the Tort Claims Act is to limit, not expand, municipal liability, see id. at 3-4; it is the immunity, not the liability, that is non-waivable, see id. at 4; the Home Rule Charter is organizational and expresses no dominant public policy or standard of care nor does it have a remedial purpose, see id.; the City’s general duty to repair and maintain streets is not akin to a non-waivable health and safety regulation, see id. at 5; and, because the City otherwise has a common law duty to maintain and repair its streets, and would remain liable for reckless or grossly negligent conduct, exculpation under the Release for particular enumerated conduct during the event does not jeopardize public safety and welfare, see id. at 5-6. There are several points made by the dissent and the City with which our analysis may coexist, and given the similarity of their positions, we primarily address them together.

10. Because of the similarities of their provisions, the Tort Claims Act and Sovereign Immunity Act are interpreted consistently. Finn v. City of Philadelphia, 664 A.2d 1342, 1344 (Pa. 1995) (“[T]his court has held that the two statutes dealing with governmental and sovereign immunities, viz., the Political Subdivision Tort Claims Act and the Sovereign Immunity Act, are to be interpreted consistently, as they deal with indistinguishable subject matter.”), citing, inter alia, Kiley by Kiley v. City of Philadelphia, 645 A.2d 184, 186 (Pa. 1994), Snyder v. Harmon, 562 A.2d 307, 312 n.7 (Pa. 1989); see also McCalla v. Mura, 649 A.2d 646, 648-49 (Pa. 1994) (analogizing the Court’s interpretation of Sovereign Immunity Act Subsection 8522(b)(4), regarding waiver of immunity for Commonwealth real estate, highways and sidewalks, to interpret Tort Claims Act Subsection 8542(b)(6), regarding waiver of immunity for municipality-owned streets).

11. Though the dissent suggests we have not identified statutory language expressing an “intent to prevent the City from limiting its liability by contractual release[,]” Dissenting Opinion at 2, we conclude these provisions of the Act prescribing both the terms of payment plans and limitations on liability via a damages cap and indemnity agreements, in conjunction with the Act’s pronouncement a municipality “shall be liable for damages” resulting from certain known conditions of the roads, indicate the General Assembly has considered the parameters for limiting municipal liability “in areas where risk management is totally uncertain[,]” and applied them; the provisions thus do express an intent to prevent a municipality from complete exculpation of liability by release. 42 Pa.C.S. §8542; see id. §§8553, 8559, 8564; Sovereign Immunity at 10. Furthermore, in holding the fully exculpatory release in this case is invalid, we do not foreclose the possibility the City may devise some other valid limitation on liability, the contours of which are not implicated here. See, e.g., State Farm, 54 A.3d at 933, 939-40 (Wecht, J., concurring and dissenting) (in accordance with RESTATEMENT (SECOND) OF CONTRACTS §195, party charged with duty of public service may not be exempted from tort liability; however a limitation on liability may be valid, but must be reasonable “‘and not so drastic as to remove the incentive to perform with due care'”), quoting Valhal Corp., 44 F.3d at 204 (emphasis added).

12. The dissent observes, consistent with our decision in Williams, it is the General Assembly’s role “to determine what policy aims are important enough to justify overturning a private contract.” Dissenting Opinion at 2, citing Williams, 32 A.3d at 1200. We agree, and acknowledge the aims of the Tort Claims Act are not the same as a mandatory health and safety statute the violation of which constitutes negligence per se. See id. at 4-5. However, contrary to the dissent and as explained in greater detail throughout this analysis, the General Assembly has conferred limited powers to municipalities, and prescribed limitations on both municipal liability and municipal immunity. Thus, rather than “conflat[ing] statutory governmental immunity with a private contractual release of liability” as the dissent describes, id. at 3, we conversely view the immunity afforded by the exculpatory release in this case as impermissibly conflating a private contract with the status of those statutory provisions defining the parameters of governmental immunity. See supra n.11; see also Valhal Corp., 44 F.3d at 206-07 (under Pennsylvania law, party’s charge with duty to the public would “elevate its private contracts to matters of public concern” and therefore violate public policy).

13. To the extent the City argues its duty related to the Bike Ride is not in the same category as entities found to be charged with a duty of public service, see City’s Brief at 15, it draws our attention to RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY §2 comment e (2000), presumably to indicate the category is limited to the entities expressly listed therein. More completely, comment e states, “An agreement purporting to exculpate a person charged with the public duty to perform a service — such as a common carrier, an innkeeper, a public warehouse, or a public utility — is normally not effective unless the terms of the agreement have been approved by a public regulatory body.” Id. (emphasis added). The Reporter’s Note to comment e further provides, “In some situations, exculpatory contracts are against public policy and are unenforceable. The most common situation is when the defendant is performing a public-service duty.” Id. We do not view these examples as providing a complete list of types of entities charged with public duty. Nor do we herein adopt this restatement of the law, but note it supports the proposition that an entity performing a duty of public service cannot exculpate itself by contract.

14. We do not herein address injuries related to risks associated with the event itself, but only those related to the particular conditions of the streets for which the City “had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.” 42 Pa.C.S. §8542(b)(6)(i).

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Confusing underlying reason for filing a lawsuit against a gymnastics’ studio for questionable injuries gets slammed by the Ohio Appellate court.

Posted: June 5, 2023 | Author: Recreation Law | Filed under: Minors, Youth, Children, Ohio, Release (pre-injury contract not to sue), Uncategorized | Tags: Diva Gymnastics Academy, Gymnastics, Gymnastics Academy, minors, Ohio, Release, Release Law, Waiver | Leave a comment

Plaintiffs argued the injuries to their children were caused by the gym instructors attempting to get back at the parents.

Campagna-McGuffin v. Diva Gymnastics Acad., Inc., 199 N.E.3d 1034 (Ohio App. 2022)

State: Ohio; Court of Appeals of Ohio, Fifth District, Stark County

Plaintiff: Angela Campagna-McGuffin, as legal guardian of Macy McGuffin, Dawn Bagnola, as legal guardian of Heaven Ward, and Shelly Benson, as legal guardian of Jocelynn Benson

Defendant: Diva Gymnastics Academy, Inc., Travis Seefried

Plaintiff Claims: Negligence

Defendant Defenses: Release, Assumption of the Risk

Holding: For the Defendant

Year: 2022

Summary

Parents of kids studying at a gymnastic studio were thrown out of the gym. The parents sued claiming the gym was getting back at the kids by exercising them for too long and hard causing injuries. However, in deposition the kids said they were sore but not injured. The parents also signed a release which stops claims by minors in Ohio.

Facts

On June 25, 2020, appellants Angela Campagna-McGuffin, as legal guardian of Macy McGuffin, Dawn Bagnola, as legal guardian of Heaven Ward, and Shelly Benson, as legal guardian of Jocelynn Benson, filed a complaint against appellee Diva Gymnastics Academy, Inc., alleging negligence, negligent supervision, bodily injury with mental anguish, and loss of consortium. Diva is owned and operated by Dr. Lisa Ford (“Ford”).

Appellants McGuffin, Bagnola, and Benson filed their first amended complaint on September 23, 2020, adding appellee Travis Seefried, the head coach at Diva, as a defendant, and alleging the following claims: negligence, negligent supervision, intentional infliction of emotional distress, negligent infliction of emotional distress, and loss of consortium.

Appellants, who brought these claims on behalf of their daughters, alleged that, between 2017 and 2019, their daughters were injured as a result of excessive conditioning they were made to do by Seefried and Diva. Specifically, appellants allege they had to do excessive frog jumps, excessive butt scoots, excessive v-ups, and hang on the bars for long periods of time. They allege this extra conditioning amounted to a form of punishment, which breached appellees’ duty to teach, train, and instruct according to United States of America Gymnastics (“USAG”) rules, and the duty of ordinary care for conducting gymnastics activities. There are no allegations of any sexual misconduct against appellees.

On November 20, 2020, appellant Felisha Waltz, as legal guardian of Abeka Fouts, filed a complaint under a separate case number, alleging similar conduct and causes of action against appellees. In the second case, appellant Waltz filed a second amended complaint, adding appellant Courtney Hawk, as legal guardian of Samantha Hawk, as a plaintiff in the case.

Appellees filed answers in each of the cases, denying the allegations against them, and arguing appellants filed their cases as a way to seek revenge on appellees. Specifically, appellees argue that four of the five appellant gymnasts were asked to leave Diva due to inappropriate conduct, such as harassing other gymnasts and disobeying coaches.

…the trial court granted appellees’ motion for summary judgment. The court found: (1) the deposition testimony of appellants contradicts their claims that they suffered physical injury, and appellants have provided no evidence that they suffered a physical injury as a result of appellees’ conduct; (2) appellants’ claims are barred by the Ohio Recreational Activity Doctrine because appellants accepted the risks inherent in the sport by engaging in competitive gymnastics; and (3) appellants acknowledged the inherent risk and expressly assumed the risk by signing “Release, Indemnification, and Hold Harmless Agreements.”

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

This was an interesting case to read and is still puzzling as to the real motive for the lawsuit. Where the lawsuit failed is the complaint said the students were injured by the actions of the defendants, yet in testimony during depositions, the students stated they were not injured.

This also extended to the affidavits filed by the plaintiffs supporting those injury claims. The affidavits were excluded from the record (struck) because they conflicted with the testimony in the depositions. Meaning the depositions of the plaintiffs were taken. The defendant filed a motion for summary judgement and in response to the defendant’s motion for summary judgment; they supplied affidavits supporting their response. The court found the affidavits were conflicting (and obviously self-serving) so the affidavits were struck.

Affidavits that are inconsistent with earlier deposition testimony are subject to being stricken. “An affidavit of a party opposing summary judgment that contradicts former deposition testimony of that party may not, without sufficient explanation, create a genuine issue of material fact to defeat the motion for summary judgment.” Byrd v. Smith. Further, “[w]hen determining the effect of a party’s affidavit that appears to be inconsistent with the party’s deposition and that is submitted either in support of or in opposition to a motion for summary judgment, a trial court must consider whether the affidavit contradicts or merely supplements the deposition.”

This is an extremely rare action on behalf of the court. Thus, the court found the action of the plaintiff’s in doing this to be beyond reasonable. The court went so far as to review the depositions and point out the inconsistencies in the affidavits.

The trial court provided a detailed description of how each of the affidavits contradicts the affiant’s deposition testimony. Appellants contend the affidavits were merely condensed versions of each affiant’s deposition testimony, and the affidavits did not contradict the deposition testimony. This Court has reviewed each of the depositions and affidavits at issue. We find the trial court did not abuse its discretion in determining the affidavits contradict the depositions, and concur with the trial court’s analysis in striking each of the affidavits.

The courts’ actions were fully supported by the appellate court.

The court then dived into the legal issues of the appeal. The court held that in Ohio, there were three ways to sue for injuries that arose from recreational sporting activities. “Three standards are used to permit recovery for injuries received during sports and recreation activities: (1) intentional tort; (2) willful or reckless misconduct, and (3) negligence.”

Here the plaintiff claimed the defendant was negligent. Ohio, like most other states has the following requirements to prove negligence.

In order to establish a cause of action for negligence, a plaintiff must demonstrate: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) and the plaintiff suffered injury proximately caused by the defendant’s breach of duty.

Ohio has the same defenses as most other states to negligence claims for sport and recreational activities. Assumption of the risk is a defense to a claim of negligence.

However, when a defendant shows the plaintiff assumed the risk of injury through participating in an inherently dangerous activity, the duty of care is eliminated.

Ohio recognizes three types of assumption of the risk: express, primary, and implied assumption of the risk. Primary assumption of the risk is:

Primary assumption of the risk is a defense of extraordinary strength because it essentially means “that no duty was owed by the defendant to protect the plaintiff from that specific risk,” so a “court must proceed with caution when contemplating whether primary assumption of the risk completely bars a plaintiff’s recovery.” A successful primary assumption of the risk defense means that the duty element of negligence is not established as a matter of law. Thus, the defense prevents the plaintiff from making a prima facie case of negligence. The applicability of the primary-assumption-of-the-risk defense presents an issue of law for the court to decide.

If no duty is owed there can be no breach of a duty, therefore, no negligence. To prove negligence the plaintiff must prove all the elements to win their case. When applied to sport or recreational cases, this relieves the burden on the defendant to protect the players from the risks of the sport.

When individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either reckless or intentional.

The primary assumption of risk doctrine defense relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity, because such risks cannot be eliminated. “The types of risks associated with [an] activity are those that are foreseeable and customary risks of the * * * recreational activity.”

Ohio has a test to determine if the risks encountered by the plaintiff were inherent in the sport.

The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires: (1) the danger is ordinary to the game; (2) it is common knowledge the danger exists; and (3) the injury occurs as a result of the danger during the course of the game. “The nature of the sporting activity is highly relevant in defining the duty of care owed by a particular defendant: what constitutes an unreasonable risk, under the circumstances, of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participant’s idea of foreseeable conduct in the course of the game.”

The court must determine for each sport, game or activity if the injury was a risk of the sport. An example would be badminton. There is probably a risk of being hit by a badminton racquet in the sport, but there is no risk of being injured by being tackled by an opposing badminton player. Football would be just the opposite. A football player assumes the risk of being tackled; however, nothing in the rules or the sport would allow a football player to be hit by a racquet.

The next argument raised by the plaintiff was the activities which gave rise to the injuries in the complaint were not inherent in the sport. The injuries incurred because of excessive conditioning, which was a to punish the participants and their mothers.

The court did not agree with the plaintiff’s arguments.

We first note that not every violation of a sport’s rules meets the negligence standard, and the focus for what constitutes an unreasonable risk of harm under the circumstances involves the examination of both the “rules and customs” associated with the sport that shape the participants’ ideas of foreseeable conduct.

Additionally, none of the testimony or proof offered by the plaintiff supported this argument.

The fact that appellants submitted an expert affidavit opining that appellees engaged in violations of the Safe Sport Policy and that their conduct is “not inherent” in gymnastics activities does not create a genuine issue of material fact in this case.

Since the affidavits were found to be “inconsistent” with the deposition testimony, the affidavits did not prove the injuries caused by excessive training were not inherent to the sport. Meaning the depositions are given more weight because they are taken under oath and the questions are asked by opposing counsel. Affidavits are sworn statements prepared by the party presenting them and not questioned by opposing counsel.

The appellate court then looked to the defense of express assumption of the risk. The plaintiff’s argued the releases, the express assumption of the risk documents, only covered inherent risks of the sport and did not identify the actual risks causing the injuries to the plaintiffs.

Appellants argue the trial court committed error in applying the express assumption of the risk doctrine to bar their claims because the release the parents signed only covers “inherent” risks, and the risks in this case are not inherent to gymnastics; further, that the release failed to identify the precise activity which resulted in injury.

Each appellant-mother signed a document entitled “Release, Indemnification, and Hold Harmless Agreement” (“Release”) prior to any of the incidents alleged in the complaint. Each appellant-mother in this case admitted in their deposition to signing the Release when registering their appellant-daughter for gymnastics at Diva.

A release is a separate defense to primary assumption of the risk. Although a well-written release can also be used to prove primary assumption of the risk. A release must have the legal language or wording needed to meet the requirements in most states of making sure the person signing the release knows and understands they are giving up their right to sue for their injuries. An assumption of the risk document is an acceptance of the risks identified in the document or easily identified by the signor based on education, experience and knowledge. Consequently, a release can be both a release and an express assumption of the risk.

Ohio allows a parent to sign a release on behalf of a minor, waiving the minor’s right to sue as well as the parents.

Express assumption of the risk is a separate and independent bar to recovery from the doctrine of primary assumption of the risk.

Valid exculpatory clauses or releases constitute express assumption of risk, and is the same as waiving the right to recover. A participant in a recreational activity is free to contract with the proprietor of such activity to relieve the proprietor of responsibility for damages or injuries to the participant caused by negligence, except when it is caused by wanton or willful misconduct. Appellants do not allege wanton or willful misconduct in this case. Parents have the authority to bind their minor children to exculpatory agreements in favor of sponsors of sports activities where the cause of action sounds in negligence.

The court then reviewed the requirements under Ohio’s law for the release to be enforceable. These requirements are the same as most other states.

For express assumption of the risk to operate as a bar to recovery, the party waiving his or her right to recover must make a conscious choice to accept the consequences of the other party’s negligence. The waiver must be clear and unequivocal. Releases from liability are narrowly construed; however, courts routinely apply such releases to bar future tort liability as long as the intent of the parties, with regard to exactly what kind of liability and what persons and/or entities are being released, is stated in clear and unambiguous terms.

Then the court explained how the release signed by the parents met the requirements under Ohio’s law.

In this case, the Release clearly specified the kind of liability released, as the Release contains the word “negligence” multiple times. It also clearly specifies the persons and/or entities being released (Diva, its owners, directors, officers, employees, agents, volunteers, participants, and all other persons or entities acting for them). The language contained in the Release is sufficiently clear and unambiguous such that the express assumption of the risk defense bars recovery.

What is interesting is there is very little discussion in Ohio anymore about whether the release signed by a parent stops a minor from suing.

The plaintiffs then tried to argue that because the word “conditioning” was not in the release, the release should fail for not identifying the risk causing the injury to the youth.

Appellants contend since the word “conditioning” does not appear in the Release, their claims are not barred. However, appellants expressly assumed the risk for “gymnastics, tumbling, cheering, high bars, low bars, beam training, activities, exhibitions, demos and open gym.” Further, the language in the Release states that “risks include, but are not limited to,” the list above. In the second paragraph of the Release, appellants expressly “assume[d] all of the risk inherent in this activity.” By signing the Release, appellants acknowledged gymnastics involves “known and unanticipated risks which could result in physical or emotional injury.”

However, Ohio, like most other states does not need a release to be a specific list of the possible ways someone can get hurt engaging in a sport or recreational activity. That list would make releases thousands of pages long. The release must just identify the fact that there is a risk.

The plaintiffs then argued that the release did not identify the risk of “excessive conditioning” which is not inherent in the sport of gymnastics.

Appellants additionally argue they did not expressly assume liability because the risks suffered by appellants during “excessive conditioning” are not inherent risks within the sport of gymnastics. As noted above, the Release specifically includes “known and unanticipated risks,” including risks that “could result in physical or emotional injury.” Further, as detailed above, the exercises, drills, and conditioning alleged by appellants were normal, routine, and customary during high-level competitive gymnastics training.

Not only did the court find that language was not necessary in the release, the court found came back to the point that earlier the plaintiff had not proven there was excessive conditioning.

We find the language contained in the Release is sufficiently clear and unambiguous. Appellants expressly assumed the risks they describe in their depositions. Accordingly, the express assumption of the risk defense is a separate and independent bar to recovery in this case.

The final issue was the trial court found the plaintiffs did not prove they had suffered any injury.

As an alternative and independent basis for granting summary judgment, the trial court found appellants could not meet the third part of the negligence test, i.e., that appellants suffered an injury proximately caused by appellees’ breach of duty.

The affidavits in support of the cross motions probably did not make the trial court or the appellate court happy when they were so contradictory to the depositions. So, it was easy to rule the plaintiffs did not make their case when they could not prove the actions taken were outside of the normal actions of a gymnastic gym or the fact the youth suffered no injury.

So Now What?

Usually, once an appellate court finds one way to support the trial court’s decision, it ignores the other arguments made by an appellant or appellee. When the appellate court reviews all the issues, it means the legal issues were not properly identified or applied below or the facts of the case are such that the appellant court wants to eliminate any additional attempts to make baseless arguments again.

The court showed how not every possible risk must be in a release. However, the more risk identified in a release, the greater the chance the release can be used as an express assumption of the risk document to stop a lawsuit if the release is found to be void.

For other cases on Ohio law.

In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night

Ohio adopts the requirement that a skier assumes the risk of a collision with another skier.

Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.

Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.

Poorly written release on a sign-in sheet barely passes protecting Ohio defendant swimming area from suit.

Release upheld in Ohio to stop negligence claims for indoor ski jumping. However, gross negligence claims survived.

For other case law on a parent’s right to sign away a minor’s right to sue see:

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

Adult volunteer responsibility ends when the minor is delivered back to his parents.

An example of adults and money getting in the way of kids has fun

As long as there are laws, there will be people trying to get around them.

BSA Summer Camp was able to have punitive damages claim dismissed prior to trial

Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims? Maybe, but only by omission, not by intent I believe. http://rec-law.us/2qTjjBw

First of a kind! A release written so badly the assumption of risk language stopped the release from working for one defendant and did not cover the minors because the release did not name them.

Iowa does not allow a parent to sign away a minor’s right to sue.

Is being overprotective putting our kids at risk

Mississippi decision requires advance planning and knowledge of traveling in a foreign country before taking minors there.

New Jersey does not allow a parent to sign away a minor’s right to sue so a binding arbitration agreement is a good idea, if it is written correctly.

New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue. http://rec-law.us/2r7ls9l

North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations

North Dakota decision allows a parent to sign away a minor’s right to sue.

Paranoia can only get you so far, and then you get into the absurd.

Poorly written release on a sign-in sheet barely passes protecting Ohio defendant swimming area from suit.

Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause.

The Boy Scouts of America are not liable because they owed no duty, they did not own the camp

This article takes a real look at the risks parents allow their children to face

Virgin Islands court upholds release to stop claims by a minor against a program providing benefits for youth

You’ve got to be kidding: Chaperone liable for the death of girl on a trip

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

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

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Campagna-McGuffin v. Diva Gymnastics Acad., Inc., 199 N.E.3d 1034 (Ohio App. 2022)

Posted: June 5, 2023 | Author: Recreation Law | Filed under: Activity / Sport / Recreation, Minors, Youth, Children, Ohio, Release (pre-injury contract not to sue) | Tags: Diva Gymnastics Academy, Gymnastics, Gymnastics Academy, minors, Negligence, Ohio, Ohio Release law, Release, Waiver | Leave a comment

199 N.E.3d 1034

Angela CAMPAGNA-MCGUFFIN, et al., Plaintiffs-Appellants
v.
DIVA GYMNASTICS ACADEMY, INC., et al., Defendants-Appellees

No. 2022 CA 00057

Court of Appeals of Ohio, Fifth District, Stark County.

Date of Judgment Entry: October 31, 2022

DAVID C. PERDUK, 3603 Darrow Road, Stow, OH 44224, LAWRENCE J. SCANLON, JAMES R. GALLA, 57 S. Broadway St., 3rd Fl., Akron, OH 44308, For Plaintiffs-Appellants.

JUSTIN A. DUBLIKAR, KYLE A. CRAMER, Cincinnati Insurance Co., 50 S. Main Street, Ste. 615, Akron, OH 44308, FRANK G. MAZGAJ, FRANK G. MAZGAJ, JR., 3737 Embassy Parkway, Ste. 100, Akron, OH 44333, For Defendants-Appellees.

JUDGES: Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon. Craig R Baldwin, J.

OPINION

Gwin, P.J.

{¶1} Appellants appeal the April 5, 2022 judgment entry of the Stark County Court of Common Pleas granting appellees’ motion for summary judgment.

Facts & Procedural History

{¶2} On June 25, 2020, appellants Angela Campagna-McGuffin, as legal guardian of Macy McGuffin, Dawn Bagnola, as legal guardian of Heaven Ward, and Shelly Benson, as legal guardian of Jocelynn Benson, filed a complaint against appellee Diva Gymnastics Academy, Inc., alleging negligence, negligent supervision, bodily injury with mental anguish, and loss of consortium. Diva is owned and operated by Dr. Lisa Ford (“Ford”).

{¶3} Appellants McGuffin, Bagnola, and Benson filed their first amended complaint on September 23, 2020, adding appellee Travis Seefried, the head coach at Diva, as a defendant, and alleging the following claims: negligence, negligent supervision, intentional infliction of emotional distress, negligent infliction of emotional distress, and loss of consortium.

{¶4} Appellants, who brought these claims on behalf of their daughters, alleged that, between 2017 and 2019, their daughters were injured as a result of excessive conditioning they were made to do by Seefried and Diva. Specifically, appellants allege they had to do excessive frog jumps, excessive butt scoots, excessive v-ups, and hang on the bars for long periods of time. They allege this extra conditioning amounted to a form of punishment, which breached appellees’ duty to teach, train, and instruct according to United States of America Gymnastics (“USAG”) rules, and the duty of ordinary care for conducting gymnastics activities. There are no allegations of any sexual misconduct against appellees.

{¶5} On November 20, 2020, appellant Felisha Waltz, as legal guardian of Abeka Fouts, filed a complaint under a separate case number, alleging similar conduct and causes of action against appellees. In the second case, appellant Waltz filed a second amended complaint, adding appellant Courtney Hawk, as legal guardian of Samantha Hawk, as a plaintiff in the case.

{¶6} Appellees filed answers in each of the cases, denying the allegations against them, and arguing appellants filed their cases as a way to seek revenge on appellees. Specifically, appellees argue that four of the five appellant gymnasts were asked to leave Diva due to inappropriate conduct, such as harassing other gymnasts and disobeying coaches.

{¶7} Appellees filed a motion to consolidate the cases in February of 2021. Appellants did not oppose the motion. Accordingly, the trial court consolidated the cases on February 19, 2021.

{¶8} Appellees filed a motion for summary judgment on October 29, 2021. Appellants filed a memorandum in opposition on November 29, 2021. Appellees filed a reply brief on December 8, 2021. In their reply brief, appellees moved the trial court to strike the affidavits filed with appellants’ memorandum in opposition because the affidavits contradict the affiants’ deposition testimony.

{¶9} After appellees filed their motion for summary judgment, appellants filed a motion to file a third amended complaint in order to delete and/or dismiss certain counts of the complaint. The trial court granted appellants’ motion to file a third amended complaint. The third amended complaint deleted/dismissed the following cases of actions: Count Four (intentional infliction of emotional distress), Count 5 (negligent infliction of emotional distress) and Count 7 (loss of consortium). Accordingly, the remaining claims against appellees were negligence, negligent supervision, and “bodily injury with mental anguish.”

{¶10} The trial court issued a judgment entry on March 23, 2022, stating it was granting appellees’ motion for summary judgment, and stating it would issue a final judgment entry with the court’s findings and analysis. The trial court issued its final judgment entry on April 5, 2022. First, the trial court granted appellees’ motion to strike the affidavits submitted by appellants in response to appellees’ motion for summary judgment. The trial court provided, in detail, how and why each of the affidavits conflicted with the testimony each affiant gave during their deposition testimony. The trial court stated it would not consider the affidavits when ruling on the motion for summary judgment.

{¶11} Next, the trial court granted appellees’ motion for summary judgment. The court found: (1) the deposition testimony of appellants contradicts their claims that they suffered physical injury, and appellants have provided no evidence that they suffered a physical injury as a result of appellees’ conduct; (2) appellants’ claims are barred by the Ohio Recreational Activity Doctrine because appellants accepted the risks inherent in the sport by engaging in competitive gymnastics; and (3) appellants acknowledged the inherent risk and expressly assumed the risk by signing “Release, Indemnification, and Hold Harmless Agreements.”

{¶12} Appellants appeal the April 5, 2022 judgment entry of the Stark County Court of Common Pleas and assign the following as error:

{¶13} “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY FINDING THAT OHIO’S RECREATIONAL DOCTRINE BARS APPELLANTS’ CLAIMS.

{¶14} “II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY FINDING THAT THERE WAS NO EVIDENCE OF PHYSICAL INJURY CAUSED BY APPELLEE.

{¶15} “III. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BY STRIKING THE APPELLANTS’ AFFIDAVITS.”

{¶16} For ease of discussion, we will discuss appellants’ assignments of error out of sequence.

III.

{¶17} In their third assignment of error, appellants contend the trial court committed error in striking their affidavits. Appellants submitted affidavits of themselves (mothers) and their daughters in response to appellees’ motion for summary judgment. The trial court struck the affidavits, finding they conflicted with the affiants’ deposition testimony.

{¶18} Appellants first contend the trial court could not strike the affidavits because the proper procedure was not followed, as appellees never filed a motion to strike. However, in the reply brief dated December 8, 2021, appellees specifically state, “[t]he contradictions, discrepancies, and self-serving intent behind these Affidavits warrants the Affidavits of Macy McGuffin, Angela Campagna-McGuffin, Heaven Ward, Dawn Bagnola, Jocelynn Benson, Shelly Benson, Abeka Fouts, Felisha Waltz, Samantha Hawk, and Courtney Hawk be stricken from the record.”

{¶19} Appellants also contend that since the issue was raised in a reply brief, they did not have a “procedural mechanism” to respond. However, appellants did not attempt to strike the allegedly improper portion of the reply brief, nor did they seek leave to file a sur-reply. This Court has previously held that when an appellant does not attempt to strike the allegedly improper portion of the brief or seek leave to file a sur-reply, appellant waives any error. Edwards v. Perry Twp. Board of Trustees , 5th Dist. Stark No. 2015CA00107, 2016-Ohio-5125, 2016 WL 4062842 ; Carrico v. Bower Home Inspection, LLC , 5th Dist. Knox No. 16CA21, 2017-Ohio-4057, 2017 WL 2350951.

{¶20} Appellants also contend this Court should review the trial court’s granting of the motion to strike under a de novo review because the striking of the affidavits took place within the summary judgment pleading process. However, this Court has consistently reviewed entries striking affidavits, including entries striking affidavits within the summary judgment pleading process, under an abuse of discretion standard. Curtis v. Schmid, 5th Dist. Delaware No. 07 CAE 11 0065, 2008-Ohio-5239, 2008 WL 4493307 ; Campbell v. WEA Belden,
LLC , 5th Dist. Stark No. 2006CA00206, 2007-Ohio-1581, 2007 WL 969415 ; see also Pickens v. Kroger Co. , 10th Dist. Franklin No. 14AP-215, 2014-Ohio-4825, 2014 WL 5493882. Pursuant to our established precedent, we review the trial court’s striking of the affidavits under an abuse of discretion standard. In order to find an abuse of discretion, we must find that the trial court’s decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment. Blakemore v. Blakemore , 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶21} Affidavits that are inconsistent with earlier deposition testimony are subject to being stricken. “An affidavit of a party opposing summary judgment that contradicts former deposition testimony of that party may not, without sufficient explanation, create a genuine issue of material fact to defeat the motion for summary judgment.” Byrd v. Smith , 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47. Further, “[w]hen determining the effect of a party’s affidavit that appears to be inconsistent with the party’s deposition and that is submitted either in support of or in opposition to a motion for summary judgment, a trial court must consider whether the affidavit contradicts or merely supplements the deposition.” Id.

{¶22} The trial court provided a detailed description of how each of the affidavits contradicts the affiant’s deposition testimony. Appellants contend the affidavits were merely condensed versions of each affiant’s deposition testimony, and the affidavits did not contradict the deposition testimony. This Court has reviewed each of the depositions and affidavits at issue. We find the trial court did not abuse its discretion in determining the affidavits contradict the depositions, and concur with the trial court’s analysis in striking each of the affidavits.

{¶23} In each of the affidavits of the appellant-daughters in this case, they averred they were forced to do excessive conditioning as a form of punishment, and that such conditioning hurt physically and emotionally, causing pain and injury. However, the testimony in each of their depositions is inconsistent with or contradictory to their deposition testimony.

{¶24} Macy McGuffin stated in her deposition that there was no part of the conditioning at Diva she didn’t like, she did all the things she was asked to do, other than being yelled at, she could not remember anything wrong or inappropriate before she fell off the bars during a meet, she did not have panic attacks, and she was not treated for physical injury. While she first mentioned a knee injury after doing frog jumps, she then stated she did not feel pain in her knee after the frog jumps, she did not know which knee hurt, and she could not remember if she told anyone about knee pain that subsequently developed. Heaven Ward testified that the physical injuries she sustained while at Diva were “just part of the sport,” her trauma involved people blaming her for “stuff [she] didn’t do, the extra conditioning “hurt [my] feelings” and made her upset because she thought she didn’t deserve it; and nothing with the coaching at Diva resulted in her being physically hurt. Jocelynn Benson stated her injuries, like a sprained ankle and callouses were “just normal things that happened in gymnastics,” her panic attacks and anxiety may have been caused by the general pressure put on her because expectations were really high and she was nervous she would not meet these expectations, and it was horrible for her at Diva because she could not handle the pressure put on her and didn’t know what to do. The only other physical injury Benson testified to was asthma attacks, which was a pre-existing condition that she still has today. Abeka Fouts testified the injuries she suffered at Diva consisted of callouses on her hands after several years of gymnastics, and an injury she sustained when she fell off the balance beam when another gymnast threw a dodgeball at her, and that she had a counselor for other issues, but never talked or discussed anything about Diva with the counselor. During Samantha Hawk’s deposition testimony, there was no testimony that she received any injury from doing pull-ups or frog jumps. Rather, she stated she sprained an ankle at practice and hurt her toe on the bar, neither of which involved the coaches.

{¶25} Similarly, each of the appellant-mothers’ affidavits alleged they had personal knowledge that the excessive conditioning caused pain and injury to their daughter. However, their deposition testimony is inconsistent with or contradicts these averments.

{¶26} Courtney Hawk stated she never observed any conditioning used as punishment, and her daughter never received treatment for any injuries sustained at Diva. Felisha Waltz testified her daughter was “mentally tortured.” When asked about physical injuries, Waltz stated she believed excessive exercises could be torture, but that she never observed any of the excessive exercises. Waltz testified that, in the time she spent in the gym, she never observed anything improper regarding her daughter by the coaches, and the issue her daughter has that was caused by the coaches at Diva is that her daughter “struggled with trusting adults.” Shelly Benson testified her daughter had anxiety prior to enrolling at Diva, and she never had any hesitation leaving her daughter at Diva, even though she saw other girls there crying. Benson stated she never observed any inappropriate disciplining of her daughter by the coaches at Diva. The only physical injury Benson noted was when her daughter sprained her ankle during a vault. Dawn Bagnola, who attended practice regularly, testified she had no complaints while she was there about the way the coaches were treating her daughter, she never observed the coaches treat her daughter badly while she was there, and other than her ankle and knee injury (incurred on a landing off the balance beam), her daughter did not injure any other part of her body while at Diva. When asked what conduct of Seefried constituted “torture,” Bagnola stated, “it was just a mental game with him.” Angela Campagna-McGuffin testified she did not witness any of the incidents of extra conditioning, and the physical injuries Macy sustained consisted of an injury to her wrist and a sore back after she fell at a meet.

{¶27} We find the trial court did not abuse its discretion in striking the affidavits of appellant-mothers and appellant-daughters; and in finding appellants could not rely on these affidavits to create a genuine issue of material fact. Appellants’ third assignment of error is overruled.

Summary Judgment Standard

{¶28} Civil Rule 56 states, in pertinent part:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

{¶29} A trial court should not enter summary judgment if it appears a material fact is genuinely disputed, nor if, construing the allegations most favorably towards the non-moving party, reasonable minds could draw different conclusions from the undisputed facts. Hounshell v. Am. States Ins. Co. , 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc. , 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the applicable substantive law. Russell v. Interim Personnel, Inc. , 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist. 1999).

{¶30} When reviewing a trial court’s decision to grant summary judgment, an appellate court applies the same standard used by the trial court. Smiddy v. The Wedding Party, Inc. , 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter de novo. Doe v. Shaffer , 90 Ohio St.3d 388, 738 N.E.2d 1243 (2000).

{¶31} In their first assignment of error, appellants contend the trial court committed error in determining the express and implied assumption of risk doctrines applied to bar appellants’ claims.

{¶32} Three standards are used to permit recovery for injuries received during sports and recreation activities: (1) intentional tort; (2) willful or reckless misconduct, and (3) negligence. Marchetti v. Kalish , 53 Ohio St.3d 95, 559 N.E.2d 699 (1990). In this case, appellants do not allege an intentional tort or willful or reckless misconduct.

{¶33} In order to establish a cause of action for negligence, a plaintiff must demonstrate: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) and the plaintiff suffered injury proximately caused by the defendant’s breach of duty. Mussivand v. David , 45 Ohio St.3d 314, 544 N.E.2d 265 (1989). However, when a defendant shows the plaintiff assumed the risk of injury through participating in an inherently dangerous activity, the duty of care is eliminated. Gallagher v. Cleveland Browns Football Co. , 74 Ohio St.3d 427, 659 N.E.2d 1232 (1996).

{¶34} It is well-settled that Ohio law recognizes three separate types of the defense of assumption of the risk: express, primary, and implied. Gentry v. Craycraft , 101 Ohio St.3d 141, 2004-Ohio-379, 802 N.E.2d 1116 (2004). Each of these types of assumption of risk provides an independent defense to a negligence claim. Id.

Primary Assumption of the Risk

{¶35} Primary assumption of the risk is a defense of extraordinary strength because it essentially means “that no duty was owed by the defendant to protect the plaintiff from that specific risk,” so a “court must proceed with caution when contemplating whether primary assumption of the risk completely bars a plaintiff’s recovery.” Gallagher v. Cleveland Browns Football Co. , 74 Ohio St.3d 427, 659 N.E.2d 1232 (1996). A successful primary assumption of the risk defense means that the duty element of negligence is not established as a matter of law. Id. Thus, the defense prevents the plaintiff from making a prima facie case of negligence. Id. The applicability of the primary-assumption-of-the-risk defense presents an issue of law for the court to decide. Id.

{¶36} “When individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant’s actions were either reckless or intentional.” Marchetti v. Kalish , 53 Ohio St.3d 95, 559 N.E.2d 699 (1990).

{¶37} The primary assumption of risk doctrine defense relieves a recreation provider from any duty to eliminate the risks that are inherent in the activity, because such risks cannot be eliminated. Simmons v. Quarry Golf Club , 5th Dist. Stark, 2016-Ohio-525, 60 N.E.3d 454. “The types of risks associated with [an] activity are those that are foreseeable and customary risks of the * * * recreational activity.” Pope v. Willey , 12th Dist. Clermont No. CA2004-10-077, 2005-Ohio-4744, 2005 WL 2179317.

{¶38} The test for applying the doctrine of primary assumption of the risk to recreational activities and sporting events requires: (1) the danger is ordinary to the game; (2) it is common knowledge the danger exists; and (3) the injury occurs as a result of the danger during the course of the game. Simmons v. Quarry Golf Club , 5th Dist. Stark, 2016-Ohio-525, 60 N.E.3d 454. “The nature of the sporting activity is highly relevant in defining the duty of care owed by a particular defendant: what constitutes an unreasonable risk, under the circumstances, of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participant’s idea of foreseeable conduct in the course of the game.” Harting v. Dayton Dragons Professional Baseball Club, LLC , 171 Ohio App.3d 319, 2007-Ohio-2100, 870 N.E.2d 766 (2nd Dist.), quoting Thompson v. McNeill , 53 Ohio St.3d 102, 559 N.E.2d 705 (1990).

{¶39} Appellants contend the trial court committed error in applying the primary assumption of the risk doctrine to bar their claims in this case because the activities they cited in their depositions (100 butt scoots, frog jumps, hanging on the bars, excessive conditioning) is not ordinary and inherent to the sport. Appellants cite this Court’s case of Simmons v. Quarry Golf Club in support of their argument. 5th Dist. Stark, 2016-Ohio-525, 60 N.E.3d 454. In Simmons , we held that falling into a large, uncovered drain hole is not one of the foreseeable or inherent risks of the game of golf, nor is it a danger ordinary to or which commonly exists in the game of golf. We noted that while a golfer could foresee a rabbit hole may be on the golf course, a golfer could not foresee an uncovered drain. Id.

{¶40} However, in this case, unlike in Simmons , the exercises, drills, and conditioning alleged by appellants were normal, routine, and customary during high-level competitive gymnastics training. Seefried and Ford described conditioning that is essential to gymnastics, specifically frog jumps and butt scoots, for core, upper body, and leg strength. Samantha Hawk testified the Level 6 and higher gymnasts regularly did three sets of 25 pull-ups as part of conditioning. Courtney Hawk stated her daughter had “rips” on her hands when she first started competitive gymnastics. Jocelynn Benson testified that, at her current gym that she likes, they spend thirty to forty minutes each gymnastics training session conditioning, including doing leg workouts, squats, lunges, push-ups, plank holds, v-ups, running suicides, and running endurance routines. Macy McGuffin testified they sometimes did frog jumps as part of their daily conditioning, usually two sets of 25, and she had no trouble doing 100 of them. Brandi Vetrone stated that she observed the gymnasts doing butt scoots most days during conditioning. The gymnasts described their physical injuries such as callouses, “rips” in hands, ankle injuries, muscle soreness, and knee pain, as being “part of the sport.” A reasonable participant in high-level competitive gymnastics would expect to encounter these risks or hazards.

{¶41} Appellants argue that, because the excessive conditioning is a violation of the Safe Sport Policy of the USAG, the assumption of the risk doctrine does not apply. Appellants cite the affidavit of their expert Michael Jacki (“Jacki”), which states that appellees “engaged in numerous violations of the USAG Safe Sport Policy resulting in abusive behavior towards gymnasts” and the “conduct is not inherent in gymnastic activities.”

{¶42} We first note that not every violation of a sport’s rules meets the negligence standard, and the focus for what constitutes an unreasonable risk of harm under the circumstances involves the examination of both the “rules and customs” associated with the sport that shape the participants’ ideas of foreseeable conduct. Thompson v. McNeill , 53 Ohio St.3d 102, 559 N.E.2d 705 (1990) (emphasis added); see also Kumar v. Sevastos , 8th Dist. Cuyahoga, 2021-Ohio-1885, 174 N.E.3d 398 (“violation of safety rule, by itself, is an insufficient basis by which to attach liability”); Brown v. Harris, 2nd Dist. Montgomery No. 27069, 2017-Ohio-2607, 2017 WL 1592636 (“it is clear that some actions which are outside of the rules or customs of the sport do not create an unreasonable risk of harm”); Kalan v. Fox , 187 Ohio App.3d 687, 2010-Ohio-2951, 933 N.E.2d 337 (11th Dist.) (“even if physical conduct violates a rule of sport, and could potentially subject the violator to internal sanctions prescribed by the sport itself * * * rule infractions, deliberate or unintentional, are almost inevitable * * *”).

{¶43} Further, Felisha Waltz, Dawn Bagnola, and Angela Campagna-McGuffin testified they reported Diva and Seefried to USAG. On June 30, 2020, USAG sent a letter to Seefried stating they “received a report alleging violations of USA Gymnastics Safe Sport policy regarding verbal/emotional misconduct and bullying behaviors.” (Deposition of Seefried, Exhibit 1 to Affidavit of Donald McPherson). In the letter, USAG stated it was ending the informal inquiry, not filing a formal complaint on the safe sport matter, and was administratively closing the matter.

{¶44} The fact that appellants submitted an expert affidavit opining that appellees engaged in violations of the Safe Sport Policy and that their conduct is “not inherent” in gymnastics activities does not create a genuine issue of material fact in this case. Jacki states in the affidavit attached to his report that he reviewed and relied upon, for the opinions stated in the affidavit, “the affidavits of the plaintiffs, and their mothers,” and the depositions of Ford, Seefried, Jose Alvarez, Brian Strickmaker, and Brandi Vetrone. Jacki did not review the depositions of either the appellant-mothers or the appellant-daughters in order to form the opinions in the affidavit. He did review the affidavits of appellants; however, as detailed above, these affidavits were inconsistent and/or conflicted with the depositions of appellants, specifically with regards to the types of injuries suffered and as to what the appellant-mothers actually witnessed. “It is well-established that a court may disregard conclusory allegations in an affidavit unsupported by factual material in the record.” H&H Properties v. Hodkinson , 10th Dist. Franklin No. 10AP-117, 2010-Ohio-5439, 2010 WL 4514775.

{¶45} We find the trial court did not commit error by holding the primary assumption of the risk doctrine applies to bar appellants’ negligence claims against appellees.

Express Assumption of the Risk

{¶46} Appellants argue the trial court committed error in applying the express assumption of the risk doctrine to bar their claims because the release the parents signed only covers “inherent” risks, and the risks in this case are not inherent to gymnastics; further, that the release failed to identify the precise activity which resulted in injury.

{¶47} Each appellant-mother signed a document entitled “Release, Indemnification, and Hold Harmless Agreement” (“Release”) prior to any of the incidents alleged in the complaint. Each appellant-mother in this case admitted in their deposition to signing the Release when registering their appellant-daughter for gymnastics at Diva. Angela Campagna-McGuffin signed the release on June 7, 2016, Dawn Bagnola signed the Release on June 3, 2017, Shelly Benson signed the Release on April 27, 2017, Felisha Waltz signed the Release on June 2, 2017, and Courtney Hawk signed the Release on July 13, 2019.

{¶48} The Release states as follows:

* * * I hereby agree to release and discharge from liability arising from negligence DIVA GYMNASTICS ACADEMY, INC. and its owners, directors, officers, employees, agents, volunteers, participants, and all other persons or entities acting for them (hereinafter collectively referred to as “Releasees”) on behalf of myself and

[199 N.E.3d 1046]

my children * * *, and also agree as follows:

1. I acknowledge that GYMNASTICS involves known and unanticipated risks which could result in physical or emotional injury * * * risks include, but are not limited to, gymnastics, tumbling, cheering, high bars, low bars, beam training activities, exhibitions, demos and open gym, resulting in injuries and other medical conditions from physical activity; and damaged clothing or other property. I understand such risks simply cannot be eliminated, despite the use of safety equipment, without jeopardizing the essential qualities of the activity.

2. I expressly accept and assume all of the risks inherent in this activity or that might have been caused by the negligence of the Releasees. My participation in this activity is purely voluntary and I elect to participate despite the risks. In addition, if at any time I believe that event conditions are unsafe or that I am unable to participate due to physical or mental conditions, then I will immediately discontinue participation.

3. I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless Releasees from any and all claims, demands, or causes of action which are in any way connected with my participation in this activity, or my use of their equipment or facilities, arising from negligence. This release does not apply to claims arising from intentional conduct. * * * By signing this document, I agree that if I am hurt or my property is damaged during my participation in this activity, then I may be found by a court of law to have waived my rights to maintain a lawsuit against the parties being released on the basis of any claim for negligence. I have had sufficient time to read this entire document and, should I choose to do so, consult with legal counsel prior to signing. Also, I understand that this activity might not be made available to me or that the cost to engage in this activity would be significantly greater if I were to choose not to sign this release, and agree that the opportunity to participate at the stated cost in return for the execution of this release is a reasonable bargain. I have read and understood this document and I agree to be bound by its terms.

PARENT OR GUARDIAN ADDITIONAL AGREEMENT

In consideration of [minor’s name] being permitted to participate in this activity, I further agree to indemnify and hold harmless Releasees from any claims alleging negligence which are brought or on behalf of minor or are in any way connected with such participation by [minor].

{¶49} Express assumption of the risk is a separate and independent bar to recovery from the doctrine of primary assumption of the risk. Hague v. Summit Acres Skilled Nursing & Rehabilitation , 7th Dist. Noble No. 09 NO 364, 2010-Ohio-6404, 2010 WL 5545386.

{¶50} Valid exculpatory clauses or releases constitute express assumption of risk, and is the same as waiving the right to recover. Anderson v. Ceccardi , 6 Ohio St.3d 110, 451 N.E.2d 780 (1983). A participant in a recreational activity is free to contract with the proprietor of such activity to relieve the proprietor of responsibility for damages or injuries to the participant caused by negligence, except when it is caused by wanton or willful misconduct. Lamb v. University Hospitals Health Care Enterprises, Inc. , 8th Dist. Cuyahoga No. 73144, 1998 WL 474183. Appellants do not allege wanton or willful misconduct in this case. Parents have the authority to bind their minor children to exculpatory agreements in favor of sponsors of sports activities where the cause of action sounds in negligence. Zivich v. Mentor Soccer Club, Inc. , 82 Ohio St.3d 367, 696 N.E.2d 201 (1998).

{¶51} For express assumption of the risk to operate as a bar to recovery, the party waiving his or her right to recover must make a conscious choice to accept the consequences of the other party’s negligence. Lamb v. University Hospitals Health Care Enterprises, Inc. , 8th Dist. Cuyahoga No. 73144, 1998 WL 474183. The waiver must be clear and unequivocal. Id. Releases from liability are narrowly construed; however, courts routinely apply such releases to bar future tort liability as long as the intent of the parties, with regard to exactly what kind of liability and what persons and/or entities are being released, is stated in clear and unambiguous terms. Glaspell v. Ohio Edison Co. , 29 Ohio St.3d 44, 505 N.E.2d 264 (1987) ; Hague v. Summit Acres Skilled Nursing & Rehabilitation , 7th Dist. Noble No. 09 NO 364, 2010-Ohio-6404, 2010 WL 5545386.

{¶52} In this case, the Release clearly specified the kind of liability released, as the Release contains the word “negligence” multiple times. It also clearly specifies the persons and/or entities being released (Diva, its owners, directors, officers, employees, agents, volunteers, participants, and all other persons or entities acting for them). The language contained in the Release is sufficiently clear and unambiguous such that the express assumption of the risk defense bars recovery. See Geczi v. Lifetime Fitness , 10th Dist. Franklin, 2012-Ohio-2948, 973 N.E.2d 801 (use of word “negligence” and parties being released sufficient for express assumption of risk); Goss v. USA Cycling, Inc. , 8th Dist. Cuyahoga, 2022-Ohio-2500, 193 N.E.3d 599 (use of words “release” and “negligence” sufficient for express assumption of risk); Grange Mut. Cas. Co. v. Buckeye Lake Marina, Inc. , 5th Dist. Fairfield No. 2011-CA-00027, 2011-Ohio-6465, 2011 WL 6306552.

{¶53} Appellants contend since the word “conditioning” does not appear in the Release, their claims are not barred. However, appellants expressly assumed the risk for “gymnastics, tumbling, cheering, high bars, low bars, beam training, activities, exhibitions, demos and open gym.” Further, the language in the Release states that “risks include, but are not limited to,” the list above. In the second paragraph of the Release, appellants expressly “assume[d] all of the risk inherent in this activity.” By signing the Release, appellants acknowledged gymnastics involves “known and unanticipated risks which could result in physical or emotional injury.”

{¶54} Appellants additionally argue they did not expressly assume liability because the risks suffered by appellants during “excessive conditioning” are not inherent risks within the sport of gymnastics. As noted above, the Release specifically includes “known and unanticipated risks,” including risks that “could result in physical or emotional injury.” Further, as detailed above, the exercises, drills, and conditioning alleged by appellants were normal, routine, and customary during high-level competitive gymnastics training.

{¶55} We find the language contained in the Release is sufficiently clear and unambiguous. Appellants expressly assumed the risks they describe in their depositions. Accordingly, the express assumption of the risk defense is a separate and independent bar to recovery in this case.

{¶56} Appellants’ first assignment of error is overruled.

II.

{¶57} In their second assignment of error, appellants contend the trial court committed error in granting summary judgment by finding there was no evidence of physical injury caused by appellees. Appellants argue the trial court improperly focused only on the lack of medical treatment in its analysis and that, even if appellants received no medical treatment for their injuries, they could still produce evidence of physical injury.

{¶58} As an alternative and independent basis for granting summary judgment, the trial court found appellants could not meet the third part of the negligence test, i.e., that appellants suffered injury proximately caused by appellees’ breach of duty. Appellants claim the trial court based its decision solely on the lack of medical treatment. However, the trial court did not base its decision solely on the lack of medical treatment of appellants; rather, the trial court based its decision on lack of injury proximately caused by appellees. The trial court specifically stated, “the deposition testimony of appellants contradicts their claims that they suffered physical injury, and appellants have provided no evidence that they suffered a physical injury as a result of appellees’ conduct.”

{¶59} Appellants argue a plaintiff can recover damages for emotional distress and mental anguish associated with a contemporaneous physical injury. However, the cases cited by appellants in support of this argument are cases where the claim at issue was negligent infliction of emotional distress, not ordinary negligence. Paugh v. Hanks , 6 Ohio St.3d 72, 451 N.E.2d 759 (1983) (“a cause of action may be stated for negligent infliction of serious emotional distress without the manifestation of a resulting physical injury” if the emotional injuries are severe, debilitating, and reasonably foreseeable); Heiner v. Moretuzzo , 73 Ohio St.3d 80, 652 N.E.2d 664 (1995) (Ohio does not recognize a claim for negligent infliction of emotional distress where the distress is caused by the plaintiff’s fear of a non-existent physical peril); Loudin v. Radiology & Imaging Services, Inc. , 128 Ohio St.3d 555, 2011-Ohio-1817, 948 N.E.2d 944 (courts have allowed recovery for emotional distress accompanied by injury); see also C.R. Withem Enterprises v. Maley , 5th Dist. Fairfield No. 01 CA 54, 2002-Ohio-5056, 2002 WL 31116720 (affirming trial court’s determination that compensatory damages for mental anguish must accompany a physical injury and must stem from a negligent act).

{¶60} In a negligent infliction of emotional distress claim, a plaintiff can recover for negligently inflicted emotional and psychiatric injuries accompanied by contemporaneous physical injury, and may include damages for mental anguish, emotional distress, anxiety, grief, or loss. Binns v. Fredendall , 32 Ohio St.3d 244, 513 N.E.2d 278 (1987). Negligent infliction of emotional distress is a separate and distinct cause of action, requiring different elements than an ordinary negligence claim. In their third amended complaint, appellants deleted/dismissed their claims of intentional and negligent infliction of emotional distress. During their depositions, the harm described by appellants included struggling to trust adults, general pressure, nervousness from high expectations, being pushed past their limit, anxiety, treating them with disrespect, being “too much,” and crying. Appellant-daughters did not identify any physical injury that was proximately caused by appellees’ conduct. Rather, the physical injuries they described were legitimate sporting injuries inherent to high-level gymnastics training, and were not caused by appellees’ conduct. Appellant-mothers did not witness any physical injuries proximately caused by appellees’ conduct.

{¶61} Appellants contend Jacki’s affidavit is sufficient to create a genuine issue of material fact as to physical injury caused by appellees’ conduct because Jacki opines that, “as a direct and proximate result of this failure by the Defendants to comply and oversee, the Plaintiffs * * * were subjected to unreasonable and unnecessary over-conditioning that would cause girls their age physical discomfort as well as unnecessary injury and emotional distress.” However, as detailed above, Jacki did not review the depositions of appellants in rendering his opinion. He only reviewed appellants’ affidavits, which contained contradictory information about the injuries appellants’ claimed in their affidavits.

{¶62} We find the trial court did not commit error in determining appellants could not meet the third part of the negligence test, i.e., that appellants suffered injury proximately caused by appellees’ breach of duty. Appellants’ second assignment of error is overruled.

{¶63} Based on the foregoing, appellants’ assignments of error are overruled.

{¶64} The April 5, 2022 judgment entry of the Stark County Court of Common Pleas is affirmed.

Wise, John, J., and Baldwin, J., concur

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Ohio Appellate court upholds release for injury from bicycle race reviewing the steps needed to analysis the release by the courts.

Posted: May 22, 2023 | Author: Recreation Law | Filed under: Cycling, Ohio, Racing, Release (pre-injury contract not to sue) | Tags: Bicycle Race, Bicycle Racing, Case Western Reserve University, Greater Cleveland Sports Commission, Ohio, Release, USA Cycling, Waiver | Leave a comment

Ohio is a state that supports the use of a release and this is a great decision to show you how to make sure your release is viable under Ohio law.

Goss v. USA Cycling, Inc., 193 N.E.3d 599 (Ohio App. 2022)

State: Ohio, Court of Appeals of Ohio, Eighth District, Cuyahoga County

Plaintiff: Heather Goss

Defendant: USA Cycling, Inc., et al. (USA Cycling, Inc. (“USAC”), Case Western Reserve University (“CWRU”), and Greater Cleveland Sports Commission (the “GCSC”))

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For Defendants

Year: 2022

Summary

The court upheld the USA cycling release for the claims of an injured bicycle racer. The plaintiff argued the release did not cover the claims of the plaintiff and that releases should be void because the use of a release allows a business owner to be lax in its safety concerns for patrons and guests. The court found neither of the plaintiff’s arguments to be valid.

Facts

In 2016, the GCSC organized NEOCycle, a multi-day cycling festival featuring criterium races, where cyclists race numerous laps around a closed-loop race. The GCSC partnered with CWRU Cycling, a student-led cycling club, to organize the criterium races sanctioned by USAC.

Individuals involved in the logistical organization of the event included GCSC’s operation manager, Matthew Sajna (“Sajna”); CWRU staff-advisor, Ryan Pierce (“Pierce”); and CWRU students, Henry Bermet (“Bermet”), Jasper Stallings (“Stallings”), and Matthew Swartout (“Swartout”). With the exception of Swartout, the event organizers had minimal experience in designing criterium-race courses. More significantly, the event organizers did not receive specialized training in criterium-race course safety or design prior to the 2016 event. Id. Despite their lack of training, however, members of the CWRU Cycling club were directly involved in the design of the race course and the measures taken to ensure safe racing conditions.

As part of the registration process for the NEOCycle event, Goss executed a release form titled, “2016 USA Cycling Event Release Form AND One Day License Application” (the “Event Release”).

Goss had previously executed an agreement with USAC on April 14, 2016, in order to obtain a license from USAC to participate in USAC-sanctioned events in 2016. This agreement, titled “Acknowledgment of Risk, Release of Liability, Indemnification Agreement and Covenant Not to Sue” (the “Licensing Release”), contained substantially similar language to that set forth in the Event Release.

On September 10, 2016, Goss participated in two separate criterium races at the NEOCycle event. In the morning event, Goss completed a 30-minute ride. Later that afternoon, Goss returned to the same course to participate in her second race. On the final lap of the second race, a cyclist in front of Goss unexpectedly fell on the final turn of the race. The crash caused many cyclists, including Goss, to lose control of their bicycles. Ultimately, Goss crashed into a barrier, causing injuries to her neck, thyroid, larynx, and trachea.

On April 2, 2020, Goss filed a civil complaint against the appellees, setting forth separate causes of action for negligence. In pertinent part, Goss alleged that USAC, CWRU, and GCSC each breached their duty to “exercise ordinary and reasonable care for the safety of [Goss]; to maintain said race course in a reasonably safe condition; to give warning of latent or concealed perils thereon, of which [they] knew or should have known; and not to expose such persons to unreasonable or foreseeable risk of severe bodily harm and injury.” Regarding the course conditions that allegedly led to Goss’s injuries, Goss asserted that “the race course design did not conform to USAC’s own safety standards, insomuch as there was insufficient distance from the race course’s final corner to the finish area. This insufficient distance caused racers to begin their ‘final sprint’ to the finish line before the final turn, thereby greatly increasing the chance for slide-outs and collisions.”

In the first assignment of error, Goss argues the trial court erred in finding that negligence as to race course safety and design was within the contemplation of the parties at the time the event release was executed. Consistent with the arguments posed before the trial court, Goss contends the Event Release was “too ambiguous or general to effectively waive the negligent conduct of the appellees.”

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

As in most cases the court started its analysis with a review of negligence in the state. Under Ohio law, to prove negligence the plaintiff must prove:

To establish a negligence claim, the plaintiff must demonstrate a duty owed by the defendant to the plaintiff, a breach of that duty, and that the plaintiff’s injury proximately resulted from the defendant’s breach of duty.

This four-part test is the same as in the vast majority of other states who define negligence. The court then reviewed the Ohio law claimed by the defendants to stop the claims of the plaintiff.

It is well-established that Ohio law recognizes three types of assumption of risk as defenses to negligence: express, primary, and implied or secondary. Pertinent to this case, express assumption of the risk is applicable when the parties expressly agree to release liability. For express assumption of risk to operate as a bar to recovery, the party waiving his right to recover must make a conscious choice to accept the consequences of the other party’s negligence

The requirement for a conscious choice to be made by the plaintiff is a different way of looking at the requirement that the release must clearly express the intent of the parties.

It follows that in order for a conscious acceptance to be made, an agreement purporting to constitute an express assumption of risk must state a clear and unambiguous intent to release the party from liability for its negligence.”

Conscious choice in Ohio, when interpreting a release, means the release must be written to show the person signing the release understand that the person is giving up certain legal rights and cannot sue for their injuries.

The court then quoted the classic statement that releases are not favored under the law of the state. Which means nothing legally, it just reenforces the legal requirement that the burden to prove the release is valid is on writer of the release or the defendant.

Releases from liability for future tortious conduct are generally not favored by the law and are narrowly construed. Nonetheless, “courts routinely apply such releases to bar future tort liability as long as the intent of the parties, with regard to exactly what kind of liability and what persons and/or entities are being released, is stated in clear and unambiguous terms.

The court then explains this “not favored” status further as the release must be written in a way that it is clearly understood by the plaintiff as to its purpose, the plaintiff is giving up his or her right to sue. If the release is ambiguous, if the language of the release does not clearly show to the plaintiff they are giving up their right to sue, then the release language is defined as ambiguous and possibly void.

On the other hand, where the language of the release is ambiguous or too general, courts have held that the intent of the parties is a factual matter for the jury. “The pivotal inquiry is whether it is clear from the general terms of the entire contract, considered in light of what an ordinary prudent and knowledgeable party of the same class would understand, that the proprietor is to be relieved from liability for its own negligence.”

If the release, under Ohio law, is ambiguous, then the jury must decide if the plaintiff understood the purpose of the release. This is different from most states where an ambiguous release is void.

When the language of the release is clear, then the release is a matter of law. That means the release can be interpreted by the court, the case does not need to go to a jury.

When a writing is clear and unambiguous, the interpretation is a question of law. “Ambiguity exists only when a provision at issue is susceptible of more than one reasonable interpretation.”. Moreover, we must read the clauses as a whole, not piecemeal.

Then the release is interpreted by the court. Courts must review contracts, releases, by giving words their ordinary meaning. Does the document state in a way that is understood the intent and purpose of the document.

In interpreting contracts, “[c]ourts must give common words their ordinary meaning unless manifest absurdity would result or some other meaning is clearly evidenced from the face or overall contents of the written instrument. And, although not always explicitly referenced or relied on, the rules of grammar are elemental whenever reading and understanding any writing, especially a contract.

The court then reviewed the plaintiff’s arguments on why the release did not meet the requirements under Ohio law because the course was designed badly.

…that (1) “the race planners were students with no training, knowledge or experience in race course design and safety”; or (2) that “the student planners would ignore the recommendations of [USAC].” Thus, Goss contends that “because of the lack of any specificity regarding [the term] negligence in the Event Release,” “the lower court erred when it failed to find that reasonable minds could differ as to whether the unsafe design of the racecourse by uneducated, untrained and inexperienced students was within the contemplation of the parties * * * at the time of the execution of the Event Release.

It always seems to be a stretch, and in most cases it is, unless the court is going to rule against the defendant, that the facts argued by the plaintiff on what happened can affect the legal requirements of a release. However, plaintiff’s try to show the things that happened to the plaintiff were so bad or the actions of the defendant were so bad that the release should be void. Injuries to the plaintiff do not affect the legal issues of whether the release is valid. Actions by the plaintiff only are an issue if the actions rise to the level those actions were grossly, willfully or wantonly negligent in most states.

Here the court found the release did not contain any missing statements or errors that would provide a hole the plaintiff could use to argue the course design was not covered by the release.

Moreover, the Event Release executed in this case did not include an exception that would permit Goss to pursue a claim for damages arising from the appellees’ sole negligence. To the contrary, the Event Release directly contemplates the appellees’ own negligence and required Goss to acknowledge that she agreed “to waive, release, discharge, hold harmless, and promise to indemnify and not to sue” the appellees for damages arising from said negligence.

The plaintiff had argued that the release should be void because of several other arguments made in other legal decisions where the release was found to be void. However, those arguments were based on the idea that the plaintiff signing the release was not informed the release covered the negligence of the defendant. The language in those other releases the court argued

…the Event Release contained the words “release” and “negligence”; and is sufficiently clear and unambiguous as to both the type of liability being released (negligence) and the persons being released (event organizers). Here, Goss released the event sponsors and organizers from all claims arising from their own negligence to the maximum extent permitted by law, including any and all damages that may be sustained by Goss directly or indirectly in connection with, or arising out of, her participation in the cycling event. In this regard, the contract expressly stated that the release applied to “all races and activities entered at the event,” and further required Goss to acknowledge that “cycling is an inherently dangerous sport.” By signing the Event Release, Goss made the conscious choice to accept that she “fully assume[d] the risks associated with such participation,” including (1) the dangers of collisions with other riders; (2) the dangers arising from surface hazards, equipment failure, inadequate safety equipment, or the releasees’ own negligence; and (3) the possibility of a serious physical injury. Considering these terms collectively and in light of what an ordinary prudent person would understand, it is clear that the appellees were to be relieved from liability for any negligence claims relating to their organization of the cycling event, including pertinent hazards and the design of the racecourse.

The release the plaintiff signed expressly reviewed the possible risks that Goss received or argued in her case. This is another point for writing a release so the plaintiff is put on notice of the actual risks they are facing in the activity.

The court found the release specifically notified the plaintiff of the risks she may encounter in the race.

Under the doctrine of express assumption of risk, the terms of the Event Release prohibited Goss from advancing claims of negligence against the appellees. Accordingly, summary judgment in favor of the appellees was warranted as a matter of law.

The plaintiff then argued that releases should be void in Ohio because they took away the needed incentive to make sure that businesses would keep their activities safe.

In the second assignment of error, Goss argues the trial court erred by failing to adopt her argument that Ohio should void broad, nonspecific, ambiguous waivers of liability as a matter of public policy. Goss contends that by allowing a premises owner or occupier to obtain broad waivers of their own liability, an important incentive for the premises owners to maintain their premises in a reasonably safe condition would be removed, “thus forcing the public to bear the cost of resulting injuries caused by the [owner or occupier’s] own negligence.”

The court went back to the basics of release law. Releases in Ohio are valid unless they are against public policy, unconscionable, vague or ambiguous.

Generally, in Ohio, exculpatory clauses, which relieve a party from its own negligence, are not against public policy despite being disfavored in the law. Thus, “limiting or exculpatory language in a contract will be enforced unless the language is against important public policy concerns, unconscionable, or vague and ambiguous.”

Most courts have looked at this issue and held that recreation, like bicycle racing is not an issue protected such that a release covering it would be void as against public policy.

In this case, the exculpatory clause released the event organizers from liability for negligence claims arising from the cycling event. However, the Event Release did not authorize the appellees to exercise no care whatsoever. Nor did it permit the appellees to engage in willful or wanton misconduct. Given these remaining, meaningful protections afforded to the public, we find no basis to adopt a position that would effectively overturn the well-established position of this court that “a participant in a recreational activity is free to contract with the proprietor of such activity as to relieve the proprietor of responsibility for damages or injuries to the participant caused by the negligence of the proprietor except when caused by wanton or wilful misconduct.

This court found the plaintiff’s arguments were not valid because the release would not stop claims if the plaintiff could prove the actions of the defendant were unsafe to a large extent. The release would not stop claims that the actions of the defendant were wanton or wilful. Since that option was always available under Ohio law, the release was not void as against public policy.

In an interesting aside, the court looked at the validity of the release in question as interpreted by other courts. However, this was done in a footnote, not in the main argument of the case.

Although not specifically considered in the state of Ohio, the language contained in the Event Release generated by USAC has been considered nationally and found to be an adequate and enforceable release of liability where such releases are permissible.

The court uphold the lower court finding the release was valid and stopped the claims of the plaintiff.

So Now What?

First this is an important look at the issues facing releases under Ohio law. This court simply examined the claims of the plaintiff and showed how those claims were not met because the release met the requirements needed to be a valid release in Ohio.

Second the court pointed out an important point that many releases miss. The release is also an assumption of the risk document. In some states releases are termed assumption of the risk documents. To be an assumption of the risk document and stop claims, the release must list the possible risks the plaintiff might encounter and the plaintiff must agree to assume those risks.

Your release must include some of the risks that the plaintiff may encounter on the trip. I always suggest that the accidents and injuries that happen on every trip be listed. I also suggest the odd accidents or injuries that may only happen on your activity as well as the worse possible accidents that may result in paralysis or death.

For more cases looking at releases as interpreted by Ohio law see:

In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night

Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.

Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.

Poorly written release on a sign-in sheet barely passes protecting Ohio defendant swimming area from suit.

Release upheld in Ohio to stop negligence claims for indoor ski jumping. However, gross negligence claims survived.

For more cases looking at releases and public policy see:

185 Running Race release was clear and under Washington, law was sufficient to beat a Public Policy & ambiguous argument by plaintiff

California case examines the relationship between a common carrier and public policy when applied to a ski area chair lift

Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal.

Federal court holds that under Minnesota law, a release signed at a ski area did not violate MN Public Policy

Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.

Wisconsin Supreme Court voids another release because it violates public policy. Public Policy as defined in Wisconsin requires the ability to bargain before signing the release

For more cases reviewing releases and bicycle racing see:

Decision concerning bicycle race clarifies Illinois release law.

PA court upholds release in bicycle race.

Release and proof of knowledge stop claim from bicycle racer.

Release for bicycle tour wins on appeal but barely

Release stops one of the first lawsuits over bicycle racing.

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

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Goss v. USA Cycling, Inc., 193 N.E.3d 599 (Ohio App. 2022)

Posted: May 22, 2023 | Author: Recreation Law | Filed under: Cycling, Ohio, Racing, Release (pre-injury contract not to sue) | Tags: assumption of the risk, Bicycle Race, Bicycle Racing, Case Western Reserve, Cycling Race, foreseeable risk, Greater Cleveland Sports Commission, Negligence, Ohio, Public Policy, Release, USA Cycling, Wanton, Wilful | Leave a comment

Goss v. USA Cycling, Inc., 193 N.E.3d 599 (Ohio App. 2022)

193 N.E.3d 599

Heather GOSS, Plaintiff-Appellant,
v.
USA CYCLING, INC., et al., Defendants-Appellees.

No. 111084

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: July 21, 2022

Barkan Meizlish DeRose Cox, LLP, Sanford A. Meizlish, and Jason C. Cox, Columbus, for appellant.

Marshall Dennehey Warner Coleman & Goggin, David J. Fagnilli, and Jillian L. Dinehart, Cleveland, for appellee USA Cycling, Inc.

Ogletree Deakins, Nash, Smoak & Stewart, P.C., John Gerak, and Amanda T. Quan, Cleveland, for appellee Case Western Reserve University.

Gallagher Sharp LLP, and Joseph Monroe, II, Cleveland, for appellee Greater Cleveland Sports Commission.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, J.:

{¶ 1} Plaintiff-appellant, Heather Goss (“Goss”), appeals from the trial court’s judgment granting summary judgment in favor of defendant-appellees, USA Cycling, Inc. (“USAC”), Case Western Reserve University (“CWRU”), and Greater Cleveland Sports Commission (the “GCSC”) (collectively the “appellees”). Goss raises the following assignments of error for review:

1. The trial court erred in finding that negligence as to racecourse safety and design was within the contemplation of the appellant and the appellees when the event release was executed.

2. The trial court erred by failing to address and adopt appellant’s argument that Ohio should void broad, nonspecific, ambiguous waivers of liability as a matter of public policy.

{¶ 2} After careful review of the record and relevant case law, we affirm the trial court’s judgment.

I. Procedural and Factual History

{¶ 3} In 2016, the GCSC organized NEOCycle, a multi-day cycling festival featuring criterium races, where cyclists race numerous laps around a closed-loop race. The GCSC partnered with CWRU Cycling, a student-led cycling club, to organize the criterium races sanctioned by USAC.

{¶ 4} Individuals involved in the logistical organization of the event included GCSC’s operation manager, Matthew Sajna (“Sajna”); CWRU staff-advisor, Ryan Pierce (“Pierce”); and CWRU students, Henry Bermet (“Bermet”), Jasper Stallings (“Stallings”), and Matthew Swartout (“Swartout”). With the exception of Swartout, the event organizers had minimal experience in designing criterium-race courses. (Pierce depo. at 46-48; Stallings depo. at 23-25, 43; Bermet depo. at 13, 21-22; Swartout depo. at 23-24.) More significantly, the event organizers did not receive specialized training in criterium-race course safety or design prior to the 2016 event. Id. Despite their lack of training, however, members of the CWRU Cycling club were directly involved in the design of the race course and the measures taken to ensure safe racing conditions.

{¶ 5} As part of the registration process for the NEOCycle event, Goss executed a release form titled, “2016 USA Cycling Event Release Form AND One Day License Application” (the “Event Release”). The Event Release provided, in pertinent part:

I acknowledge that by signing this document, I am assuming risks, agreeing to indemnify, not to sue and release from liability the organizer of this event, USA Cycling, Inc. * * * and their respective agents, insurers, employees, volunteers, members, clubs, officials, sponsors, event directors, local associations, and affiliates (collectively “Releasees”), and that I am giving up substantial legal rights. This release is a contract with legal and binding consequences and it applies to all races and activities entered at the event, regardless whether or not listed above. I have read it carefully before signing and I understand what it means and what I am agreeing to by signing.

I ACKNOWLEDGE THAT CYCLING IS AN INHERENTLY DANGEROUS SPORT AND FULLY REALIZE THE DANGERS OF PARTICIPATING IN THIS EVENT * * * and FULLY ASSUME THE RISKS ASSOCIATED WITH SUCH PARTICIPATION INCLUDING, by way of example, and not limitation: * * * the dangers of collision with pedestrians, vehicles, or other riders, and fixed and moving objects; the dangers arising from surface hazards, including pot holes, equipment failure, inadequate safety equipment, * * * THE RELEASEES’ OWN NEGLIGENCE, the negligence of others and weather conditions; and the possibility of serious physical and/or mental trauma or injury, or death associated with the event.

* * * I HEARBY WAIVE, RELEASE, DISCHARGE, HOLD HARMLESS, AND PROMISE TO INDEMNIDY AND NOT SUE the Releasees * * * FROM ANY AND ALL RIGHTS AND CLAIMS INCLUDING CLAIMS ARISING FROM THE RELEASEES’ OWN NEGLIGENCE TO THE MAXIMUM EXTENT PERMITTED BY LAW, which I have or may hereafter accrue to me, and from any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event[.]

* * *

I agree, for myself and my successors, that the above representations are contractually binding, and are not mere recitals, and that should I or my successors assert a claim contrary to what I have agreed to in this contract, the claiming party shall be liable for the expenses (including legal fees) incurred by the Releasees in defending the claims.

(Emphasis sic.) Goss had previously executed an agreement with USAC on April 14, 2016, in order to obtain a license from USAC to participate in USAC-sanctioned events in 2016. This agreement, titled “Acknowledgment of Risk, Release of Liability, Indemnification Agreement and Covenant Not to Sue” (the “Licensing Release”), contained substantially similar language to that set forth in the Event Release.

{¶ 6} On September 10, 2016, Goss participated in two separate criterium races at the NEOCycle event. In the morning event, Goss completed a 30-minute ride. Later that afternoon, Goss returned to the same course to participate in her second race. On the final lap of the second race, a cyclist in front of Goss unexpectedly fell on the final turn of the race. The crash caused many cyclists, including Goss, to lose control of their bicycles. Ultimately, Goss crashed into a barrier, causing injuries to her neck, thyroid, larynx, and trachea. (Goss depo. 117-118.)

{¶ 7} On April 2, 2020, Goss filed a civil complaint against the appellees, setting forth separate causes of action for negligence. In pertinent part, Goss alleged that USAC, CWRU, and GCSC each breached their duty to “exercise ordinary and reasonable care for the safety of [Goss]; to maintain said race course in a reasonably safe condition; to give warning of latent or concealed perils thereon, of which [they] knew or should have known; and not to expose such persons to unreasonable or foreseeable risk of severe bodily harm and injury.” Regarding the course conditions that allegedly led to Goss’s injuries, Goss asserted that “the race course design did not conform to USAC’s own safety standards, insomuch as there was insufficient distance from the race course’s final corner to the finish area. This insufficient distance caused racers to begin their ‘final sprint’ to the finish line before the final turn, thereby greatly increasing the chance for slide-outs and collisions.”

{¶ 8} On July 23, 2021, USAC filed a motion for summary judgment, arguing that Goss released USAC from negligence claims relating to her injuries sustained during the NEOCycle criterium race by executing two valid and binding waivers of liability. USAC asserted that the Event Release and the Licensing Release were each “clear and unambiguous as to the type of liability being released (i.e. negligence claims) and the persons being released (i.e. event organizers).” Alternatively, USAC argued that even if Goss had not expressly assumed the risks associated with the sporting event, the common-law doctrine of primary assumption of the risk required Goss’s claim to fail. In support of its motion for summary judgment, USAC attached copies of the Event Release and the Licensing Release, as well as deposition excerpts from Sajna, Stallings, Pierce, and Goss.

{¶ 9} On the same day, CWRU and GCSC filed a joint motion for summary judgment, arguing that “Goss’s negligence claims are barred as a matter of law because Goss signed a valid release waiving all claims, including negligence claims, against CWRU and GCSC.” In support of their joint motion for summary judgment, CWRU and GCSC attached copies of the Event Release and Licensing Release, as well as the deposition testimony of Sajna, Pierce, Stallings, Bermet, and Goss.

{¶ 10} On August 2021, Goss filed a brief in opposition to summary judgment, arguing that because the language set forth in the Event Release was “so general and ambiguous, reasonable minds could conclude that negligence as to the race course safety and design was not within the contemplation of the [parties] when the Event Release was executed.” Goss asserted that at the time she signed the Event Release she “could not have comprehended the student planners’ lack of training and experience in race-course safety,” or that “the actual race-course safety would be so far beneath USAC’s safety standards.” Alternatively, Goss argued that the broad waiver of liability should be deemed void as a matter of public policy.

{¶ 11} In support of her brief in opposition, Goss attached a copy of the Event Release, as well as deposition excerpts from Sajna, Pierce, Goss, Bermet, Stallings, and Swartout. In addition, Goss attached a copy of the affidavit and report submitted by plaintiff’s expert, Douglas Shapiro (“Shapiro”). Relevant to this appeal, Shapiro opined as follows:

Based on my 40 plus years of cycling experience, both as a bike racer, recreational cyclist and bicycle safety expert, it is my opinion the defendants’ conduct was below the acceptable standard of care required for safe race-course design and rider safety resulting in dangerous conditions not commonly associated with ordinary risks involved in the sport of cycling. The deviations from the standard of care were the proximate cause of Ms. Goss’s crash and injuries.

(Plaintiff’s exhibit G, ¶ 16.)

{¶ 12} On November 18, 2021, the trial court granted summary judgment in favor of the appellees, stating, in pertinent part:

The court finds that Plaintiff executed a valid and binding pre-injury waiver, releasing defendant[s] of liability. Summary judgment is therefore entered in favor of defendant[s] and against Plaintiff.

{¶ 13} Goss now appeals from the trial court’s judgment.

II. Law and Analysis

A. Negligence Safety and Design

{¶ 14} In the first assignment of error, Goss argues the trial court erred in finding that negligence as to race course safety and design was within the contemplation of the parties at the time the event release was executed. Consistent with the arguments posed before the trial court, Goss contends the Event Release was “too ambiguous or general to effectively waive the negligent conduct of the appellees.”

1. Standard of Review

{¶ 15} We review an appeal from summary judgment under a de novo standard of review. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996) ; Zemcik v. LaPine Truck Sales & Equip. Co. , 124 Ohio App.3d 581, 585, 706 N.E.2d 860 (8th Dist.1998).

{¶ 16} Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. , 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995), paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt , 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).

{¶ 17} Once the moving party satisfies its burden, the nonmoving party “may not rest upon the mere allegations or denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Civ.R. 56(E) ; Mootispaw v. Eckstein , 76 Ohio St.3d 383, 385, 667 N.E.2d 1197 (1996). Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992).

2. Negligence

{¶ 18} To establish a negligence claim, the plaintiff must demonstrate a duty owed by the defendant to the plaintiff, a breach of that duty, and that the plaintiff’s injury proximately resulted from the defendant’s breach of duty. Everett v. Parma Hts. , 8th Dist. Cuyahoga No. 99611, 2013-Ohio-5314, 2013 WL 6408693, ¶ 15.

{¶ 19} It is well-established that Ohio law recognizes three types of assumption of risk as defenses to negligence: express, primary, and implied or secondary. Cameron v. Univ. of Toledo , 2018-Ohio-979, 98 N.E.3d 305, ¶ 41 (10th Dist.), citing Schnetz v. Ohio Dept. of Rehab. & Corr. , 195 Ohio App.3d 207, 2011-Ohio-3927, 959 N.E.2d 554, ¶ 21 (10th Dist.), citing Crace v. Kent State Univ. , 185 Ohio App.3d 534, 2009-Ohio-6898, 924 N.E.2d 906, ¶ 10 (10th Dist.). Pertinent to this case, express assumption of the risk is applicable when the parties expressly agree to release liability. Crace at ¶ 11, citing Ballinger v. Leaniz Roofing, Ltd. , 10th Dist. Franklin No. 07AP-696, 2008-Ohio-1421, 2008 WL 802722, ¶ 6.

{¶ 20} “For express assumption of risk to operate as a bar to recovery, the party waiving his right to recover must make a conscious choice to accept the consequences of the other party’s negligence.” State Farm Fire & Cas. Co. v. Scandinavian Health Spa, Inc., 104 Ohio App.3d 582, 586, 662 N.E.2d 890 (1st Dist.1995), citing Anderson v. Ceccardi , 6 Ohio St.3d 110, 114, 451 N.E.2d 780 (1983). “It follows that in order for a conscious acceptance to be made, an agreement purporting to constitute an express assumption of risk must state a clear and unambiguous intent to release the party from liability for its negligence.” Holmes v. Health & Tennis Corp. of Am. , 103 Ohio App.3d 364, 367, 659 N.E.2d 812 (1st Dist.1995), citing Tanker v. N. Crest Equestrian Ctr. , 86 Ohio App.3d 522, 621 N.E.2d 589 (9th Dist.1993).

{¶ 21} “Releases from liability for future tortious conduct are generally not favored by the law and are narrowly construed.” Reo v. Allegiance Admrs. LLC. , 11th Dist. Lake No. 2017-L-112, 2018-Ohio-2464, 2018 WL 3110756, ¶ 20, quoting Brown-Spurgeon v. Paul Davis Sys. of Tri-State Area, Inc. , 12th Dist. Clermont No. CA2012-09-069, 2013-Ohio-1845, 2013 WL 1883214, ¶ 50, citing Glaspell v. Ohio Edison Co. , 29 Ohio St.3d 44, 46-47, 505 N.E.2d 264 (1987).

{¶ 22} Nonetheless, “courts routinely apply such releases to bar future tort liability as long as the intent of the parties, with regard to exactly what kind of liability and what persons and/or entities are being released, is stated in clear and unambiguous terms.” Brown-Spurgeon at ¶ 51 ; see also
Glaspell at ¶ 46-47 (A negligence claim is barred by the plaintiff’s valid execution of a release of liability of future tortious conduct.); Anderson at 114, 451 N.E.2d 780 (Valid exculpatory clauses or releases constitute express assumptions of risk.); Lamb v. University Hosp. Health Care Ents., Inc. , 8th Dist. Cuyahoga No. 73144, 1998 WL 474183, 1998 Ohio App. LEXIS 3740 (Aug. 13, 1998) (clause including word “release” and “negligence” as well as specifically identifying persons released from liability sufficiently clear to release fitness club from liability for injuries); Swartzentruber v. Wee-K Corp. , 117 Ohio App.3d 420, 424-427, 690 N.E.2d 941 (4th Dist.1997) (language releasing livery stable from “any and all claims” that arose out of “any and all personal injuries” was sufficiently clear and specific to bar injured horseback rider’s negligence claims).

{¶ 23} On the other hand, where the language of the release is ambiguous or too general, courts have held that the intent of the parties is a factual matter for the jury. Hague v. Summit Acres Skilled Nursing & Rehab ., 7th Dist. Noble No. 09 NO 364, 2010-Ohio-6404, 2010 WL 5545386, ¶ 21. “The pivotal inquiry is whether it is clear from the general terms of the entire contract, considered in light of what an ordinary prudent and knowledgeable party of the same class would understand, that the proprietor is to be relieved from liability for its own negligence.” Id. at ¶ 22.

{¶ 24} When a writing is clear and unambiguous, the interpretation is a question of law. Pruitt v. Strong Style Fitness , 8th Dist. Cuyahoga No. 96332, 2011-Ohio-5272, 2011 WL 4842485, ¶ 8, citing Alexander v. Buckeye Pipe Line Co. , 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978). “Ambiguity exists only when a provision at issue is susceptible of more than one reasonable interpretation.” Lager v. Miller-Gonzalez , 120 Ohio St.3d 47, 2008-Ohio-4838, 896 N.E.2d 666, ¶ 16. Moreover, we must read the clauses as a whole, not piecemeal. Gomolka v. State Auto. Mut. Ins. Co. , 70 Ohio St.2d 166, 172, 436 N.E.2d 1347 (1982).

{¶ 25} In interpreting contracts, “[c]ourts must give common words their ordinary meaning unless manifest absurdity would result or some other meaning is clearly evidenced from the face or overall contents of the written instrument.” JP Morgan Chase Bank, Natl. Assn. v. Heckler , 3d Dist. Union No. 14-12-26, 2013-Ohio-2388, 2013 WL 2639137, ¶ 20, citing In re All Kelley & Ferraro Asbestos Cases , 104 Ohio St.3d 605, 2004-Ohio-7104, 821 N.E.2d 159, ¶ 29. And, although not always explicitly referenced or relied on, the rules of grammar are elemental whenever reading and understanding any writing, especially a contract. See
Gahanna v. Ohio Mun. Joint Self-Ins. Pool , 10th Dist., 168 N.E.3d 58, 2021-Ohio-445, ¶ 12 (“The court must read words and phrases in context and apply the rules of grammar and common usage.”).

{¶ 26} On appeal, Goss reiterates her position that the Event Release was “too ambiguous or general to effectively waive the negligent conduct of the appellees” because it did not expressly notify her that (1) “the race planners were students with no training, knowledge or experience in race course design and safety”; or (2) that “the student planners would ignore the recommendations of [USAC].” Thus, Goss contends that “because of the lack of any specificity regarding [the term] negligence in the Event Release,” “the lower court erred when it failed to find that reasonable minds could differ as to whether the unsafe design of the racecourse by uneducated, untrained and inexperienced students was within the contemplation of the parties * * * at the time of the execution of the Event Release.”

{¶ 27} In support of her position that the Event Release was so general that it included claims that were not within the contemplation of the parties when it was executed, Goss relies on the Twelfth District’s decision in Brown-Spurgeon , 12th Dist. Clermont No. CA2012-09-069, 2013-Ohio-1845, 2013 WL 1883214, and the Seventh District’s decision in Hague , 7th Dist. Noble No. 09 NO 364, 2010-Ohio-6404.

{¶ 28} In Brown-Spurgeon , plaintiffs Kristina Brown-Spurgeon and Andrew Spurgeon hired defendant Paul Davis Systems of Tri-State Area, Inc. (“PDS”) to complete home repairs after their home was flooded in May 2010. At the time PDS was hired, Kristina signed a “Work Authorization” form that contained an exculpatory clause. The form provided that PDS would not be liable for theft and damages arising out of the services performed pursuant to the contract. However, the clause did allow liability for actions that arise out of the PDS’s sole negligence.

{¶ 29} Once the repair-contract was executed, PDS hired Phil Griffin, the owner of Renovated Solutions, to perform a portion of the remodeling and restoration work. PDS and Griffin signed a “Tradesperson Agreement,” which provided that Griffin would conduct background checks on all persons working on jobs obtained through PDS. Despite these safeguards, however, it was discovered that a repairman hired by Griffin stole prescription drugs, jewelry, electronics, and other personal property from the plaintiffs’ home during the repair process. The value of the stolen items exceeded $18,000. {¶ 30} In May 2011, the plaintiffs filed a lawsuit against PDS and Griffin, setting forth causes of action for vicarious liability, general negligence, and negligent hiring and supervision. Subsequently, the trial court granted summary judgment in favor of PDS and Griffin on each claim.

{¶ 31} On appeal, the Twelfth District reversed the trial court’s judgment in part, finding that there remained genuine issues of material fact as to the plaintiffs’ vicarious liability and general negligence claims against PDS, and the general negligence and negligent hiring and supervision claims against Griffin. Relevant to this appeal, the court determined that the exculpatory clause contained in the “Work Authorization” form did not exempt PDS from liability because (1) the theft involved “willful or wanton” conduct, and (2) the exculpatory clause expressly contained an exception for damages that arise directly from the “contractor’s sole negligence.” Brown-Spurgeon , 12th Dist. Clermont No. CA2012-09-069, 2013-Ohio-1845, at ¶ 54-55.

{¶ 32} In Hague , plaintiffs Ruth and Robert Hague filed a negligence and loss of consortium action against Summit Acres and Summit Acres Skilled Nursing & Rehabilitation after Ruth was injured on a treadmill at Summit Acres’ fitness center. Ultimately, the trial court granted summary judgment in favor of the defendants, finding the negligence claim must be dismissed as a matter of law because Ruth executed a release from liability form. The release provided, in relevant part:

I agree that by using the fitness center, I am responsible for my actions. I agree that summit acres, inc. Is [sic] not liable for any injuries that I might receive by my use of the fitness center. I have checked with my doctor about the exercise program I am commencing upon.

{¶ 33} On appeal, the Seventh District concluded that the trial court erred in entering summary judgment in favor of Summit Acres based solely on the release. The court explained as follows:

Here, the release signed by Ruth does not contain the words, “release” or “negligence,” and does not identify the individuals, company or corporation being released from liability. The release simply states that Summit Acres is not liable for any injuries that Goss might receive “by [her] use of the fitness center.” “For express assumption of risk to operate as a bar to recovery, the party waiving his right to recover must make a conscious choice to accept the consequences of the other party’s negligence.” [ Holmes , 103 Ohio App.3d 364, at 367, 659 N.E.2d 812 ]. Hence, the release in this case is of the type that have been characterized by Ohio courts as too ambiguous and general.

Id. at ¶ 28.

{¶ 34} After careful consideration, we find Brown-Spurgeon and Hague to be factually distinguishable from this case. Significantly, unlike the circumstances presented in Brown-Spurgeon , Goss does not contend that “appellees engaged in willful or wanton conduct.” Moreover, the Event Release executed in this case did not include an exception that would permit Goss to pursue a claim for damages arising from the appellees’ sole negligence. To the contrary, the Event Release directly contemplates the appellees’ own negligence and required Goss to acknowledge that she agreed “to waive, release, discharge, hold harmless, and promise to indemnify and not to sue” the appellees for damages arising from said negligence.

{¶ 35} Similarly, unlike the circumstances presented in Hague , the Event Release contained the words “release” and “negligence”; and is sufficiently clear and unambiguous as to both the type of liability being released (negligence) and the persons being released (event organizers). Here, Goss released the event sponsors and organizers from all claims arising from their own negligence to the maximum extent permitted by law, including any and all damages that may be sustained by Goss directly or indirectly in connection with, or arising out of, her participation in the cycling event. In this regard, the contract expressly stated that the release applied to “all races and activities entered at the event,” and further required Goss to acknowledge that “cycling is an inherently dangerous sport.” By signing the Event Release, Goss made the conscious choice to accept that she “fully assume[d] the risks associated with such participation,” including (1) the dangers of collisions with other riders; (2) the dangers arising from surface hazards, equipment failure, inadequate safety equipment, or the releasees’ own negligence; and (3) the possibility of a serious physical injury. Considering these terms collectively and in light of what an ordinary prudent person would understand, it is clear that the appellees were to be relieved from liability for any negligence claims relating to their organization of the cycling event, including pertinent hazards and the design of the racecourse.

{¶ 36} Construing the evidence most strongly in Goss’s favor, we find reasonable minds can come to but one conclusion and that conclusion is adverse to Goss. Under the doctrine of express assumption of risk, the terms of the Event Release prohibited Goss from advancing claims of negligence against the appellees. Accordingly, summary judgment in favor of the appellees was warranted as a matter of law.1

{¶ 37} Goss’s first assignment of error is overruled.

B. Public Policy Concerns

{¶ 38} In the second assignment of error, Goss argues the trial court erred by failing to adopt her argument that Ohio should void broad, nonspecific, ambiguous waivers of liability as a matter of public policy. Goss contends that by allowing a premises owner or occupier to obtain broad waivers of their own liability, an important incentive for the premises owners to maintain their premises in a reasonably safe condition would be removed, “thus forcing the public to bear the cost of resulting injuries caused by the [owner or occupier’s] own negligence.”

{¶ 39} Generally, in Ohio, exculpatory clauses, which relieve a party from its own negligence, are not against public policy despite being disfavored in the law. Papenfuse v. Toledo Area Regional Transit Auth. , 6th Dist. Lucas No. L-14-1178, 2015-Ohio-3193, 2015 WL 4720556, ¶ 6. Thus, “limiting or exculpatory language in a contract will be enforced unless the language is against important public policy concerns, unconscionable, or vague and ambiguous.” Morantz v. Ortiz , 10th Dist. Franklin No. 07AP-597, 2008-Ohio-1046, 2008 WL 642630, ¶ 27.

{¶ 40} On this record, we are unable to conclude that the Event Release is void and unenforceable due to an overwhelming public policy concern. On appeal, Goss does not contend that the Event Release was procedurally or substantively unconscionable. Moreover, as previously discussed, the Event Release was neither vague nor ambiguous. Finally, while this court agrees that the duties owed by premises owners are supported by legitimate interests in protecting the public from the risk of injury, it is equally true that the concept of freedom to contract is fundamental to our society. See
Hunter v. BPS Guard Servs., Inc. , 100 Ohio App.3d 532, 552, 654 N.E.2d 405. Similarly, there are significant public policy interests in the promotion and organization of recreational activities on public lands. In this case, the exculpatory clause released the event organizers from liability for negligence claims arising from the cycling event. However, the Event Release did not authorize the appellees to exercise no care whatsoever. Nor did it permit the appellees to engage in willful or wanton misconduct. Given these remaining, meaningful protections afforded to the public, we find no basis to adopt a position that would effectively overturn the well-established position of this court that “a participant in a recreational activity is free to contract with the proprietor of such activity as to relieve the proprietor of responsibility for damages or injuries to the participant caused by the negligence of the proprietor except when caused by wanton or wilful misconduct.” Lamb , 8th Dist. Cuyahoga No. 73144, 1998 WL 474183 at 2, 1998 Ohio App. LEXIS 3740 at 5-6 (Aug. 13, 1998) ; see also
Pruitt , 8th Dist. Cuyahoga No. 96332, 2011-Ohio-5272, at ¶ 12 (“Although [plaintiff] claims the release is against public policy, Ohio courts have consistently held to the contrary.”).

{¶ 41} Goss’s second assignment of error is overruled.

{¶ 42} Judgment affirmed.

MARY EILEEN KILBANE, P.J., and MARY J. BOYLE, J., CONCUR

——–

Notes:

1 Although not specifically considered in the state of Ohio, the language contained in the Event Release generated by USAC has been considered nationally and found to be an adequate and enforceable release of liability where such releases are permissible. See
Scott v. Altoona Bicycle Club , No. 1426 C.D.2009, 2010 WL 9512709 (Pa. July 16, 2010) (finding USAC’s event release is clear and unambiguous and released claims of negligence against event organizers and affirming the grant of summary judgment); Hellweg v. Special Events Mgmt. , 2011 IL App (1st) 103604, 956 N.E.2d 954, 958, 353 Ill. Dec. 826 (Ill. App. Ct. 2011) (“This agreement unambiguously absolves defendants of all claims arising out of the event even if caused by their own negligence.”); Milne v. USA Cycling, Inc. , 489 F.Supp.2d 1283, 1287 (D. Utah 2007) (“The Court finds the release to show a clear and unequivocal expression of an intent to release.”).

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G-YQ06K3L262

Case sent back to trial court to determine liability when a rider improperly load’s a chairlift at a ski area and eventually falls, incurring no injuries.

Posted: May 15, 2023 | Author: Recreation Law | Filed under: Arizona, Ski Area, Skiing / Snow Boarding | Tags: Arizona, Arizona Skier Safety Act, Business Invitee, Chair Lift, duty, Duty of care, mental anguish, Negligence, Physical Injury, Skier Safety Act | Leave a comment

Arizona allows lawsuits for mental anguish when there is no physical injury.

McCaw v. Ariz. Snowbowl Resort, 84 Arizona Cases Digest 9, 521 P.3d 381 (Ariz. App. 2022)

State: Arizona; Court of Appeals of Arizona, Division 1.

Plaintiff: Vincent MCCAW; Carly McCaw; Andrew McCaw

Defendant: Arizona Snowbowl Resort

Plaintiff Claims: Negligence causing emotional distress” and “psychiatric injuries

Defendant Defenses: Arizona Ski Safety Act

Holding: For the Plaintiffs

Year: 2022

Summary

Arizona appellate court holds that the Arizona Skier Safety Act does not protect ski areas from claims for injuries from chair lifts. The act covers the inherent risks of skiing/boarding but those acts are under the control of the ski area, and the rider has no control over a chair lift.

Facts

In December 2016, Vincent and his two children, 17-year-old Andrew and 14-year-old Carly, visited Snowbowl for a day of skiing and snowboarding. While they waited to load the ski chair lift, Andrew’s snowboard crossed Carly’s skis, causing her skis to “[go] out [from] underneath her.” Unable to steady herself and sit properly, Carly’s arms caught the approaching lift chair, leaving her “in a very severe slouch” position. With the skis and snowboard still entangled and believing she “would be able to get back on” properly, Carly did not attempt to maneuver away from the chair as it proceeded five to ten feet along a cable wire before beginning its ascent.

Upon realizing Carly’s precarious position, Vincent and Andrew grabbed her arms, turned toward the ski lift operator, and yelled for him to “stop” the ski lift. As other ski lift passengers became aware of the situation, they also began shouting at the operator for help. By that time, however, the operator was attending to other skiers in the load line and could not hear the passengers’ pleas over the sound of blaring music. Andrew and Vincent tried to hold onto Carly, but as she began to slip from their grasp, they determined they would have to let her go. When their chair traveled over powdered snow, Vincent and Andrew dropped Carly, hoping the unpacked snow would provide a safe landing. Carly fell over 34 feet but “popped right up” and waved to Vincent and Andrew upon landing.

After the ski lift incident, the McCaws resumed their normal lives and activities. However, Carly, Vincent, and Andrew began having recurring nightmares.

Alleging the ski lift incident caused them “emotional distress” and “psychiatric injuries,” the McCaws filed a negligence complaint against Snowbowl. Snowbowl answered, denying liability, and moved for summary judgment. Specifically, Snowbowl asserted that it “owed no duty” to the McCaws under the Act. Snowbowl also claimed that the McCaws failed to present evidence they sustained emotional distress “result[ing] in the kind of bodily manifestation of physical injury or illness cognizable under Arizona law.”

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

The court started out looking at Negligence as defined by Arizona’s law.

To establish a claim for negligence, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual damages.”

Arizona’s law is no different than the majority of state laws in the US. The court then looked at duty. Too many times, defendant’s ski “duty” in their review of what the lawsuit is all about. Did you owe a duty to the injured person.

A duty is an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm. “The existence of a duty of care is a distinct issue from whether the standard of care has been met in a particular case.”

“As a legal matter, the issue of duty involves generalizations about categories of cases.” “Thus, a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct.”

Duties of care may arise from special relationships based on contract, family relations, or conduct undertaken by the defendant,” as well as from public policy considerations. “Foreseeability of harm is not a relevant consideration in determining the threshold legal issue of whether a duty exists, nor are case-specific facts.”

The plaintiff argued that the defendant ski area owed them a duty because they were business invitees of the defendant. A business invitee as defined by Arizona’s law is:

In this case, the McCaws assert that Snowbowl owed them a duty of care based on their special relationship and status as Snowbowl’s business invitees. “A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. Under the common law, a business owner has a duty to both maintain its premises in a reasonably safe condition and conduct its business in a reasonably safe manner to avoid causing injury to invitees.

It is undisputed that the McCaws were Snowbowl’s business invitees at the time of the ski lift incident. The question is whether the Act abrogates common-law negligence principles, relieving ski area operators of a duty of care they would otherwise owe to ski lift passengers.

Business invitee is a term used to describe the legal relationship between an injured person on the land and the land owner. Because the resort received value from the plaintiff’s they were a business invitee.

The court then turned to the Arizona Skier Safety Act which was being reviewed for the first time by the courts.

Under the first tier, or “primary assumption of risk,” a ski area operator owes no duty to a skier as a matter of law, and a negligence action cannot stand. (“[P]rimary assumption of the risk is an alternative expression for the proposition that the defendant … owed no duty to the plaintiff.”). The primary assumption of the risk principle applies only when the plaintiff has engaged in a sport, or other activity regarded as dangerous and “the injury suffered arises from an inherent risk in the activity.” (“[F]or inherent hazards, ski area operators owe skiers no duty of care and skiers assume the risk of those hazards in the primary sense.”); (“To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.”). Determining what constitutes an “inherent risk” presents a legal question for the court.

In contrast, under the secondary assumption of the risk tier, both the ski area operator and the skier have reciprocal responsibilities.

Using these definitions and applying the Arizona Skier Safety Act the court differentiated the duties owed to a skier versus those of a rider of the chair lift.

Applied to the Act, the primary assumption of risk tier governs any injury arising from the “inherent dangers and risks of skiing,” as statutorily defined. A.R.S. §§ 5-705(1), -701(5). Because a ski area operator owes no duty to eliminate or guard against risks inherent to skiing, it is only liable for a plaintiff’s injuries arising out of the dangers inherent to skiing if it breached its posting and equipment requirements as delineated in A.R.S. §§ 5-702 through -704, thereby contributing to the injuries sustained.

Because riding a chairlift is not an inherent risk of skiing, a different set of duties arises.

When an injury does not arise out of a risk inherent to skiing, common-law negligence principles apply, including a duty of care owed to business invitees. Because an operational failure with a ski lift is not an “inherent risk” of skiing, as that term is statutorily defined, the Act does not immunize a ski area operator from liability for ski lift negligence.

The rider of a chair lift is a business invitee, and the ski area owes that person different setup duties then someone who wonders upon their land. This analysis was supported by the argument that on the slopes and trails the rider had free will and could control their actions. On a chair lift, the rider was at the control and mercy of the chair lift operator.

This, too, is a rational solution because, unlike the slopes and trails, where a skier has “freedom of movement and choice,” a skier has no control over the movement of a ski lift.

This argument was summed up by the court as follows:

In sum, the Act provides a liability framework that generally maintains common-law negligence principles while immunizing ski area operators from lawsuits for injuries arising from the inherent risks of skiing. By its clear terms, the Act imposes a duty on skiers to have the knowledge and ability to safely load, ride, and unload from a ski lift, but it does not identify passage on a ski lift as an inherent risk of skiing.

After making this determination as to what part of the Arizona Skier Safety Act applied to what parts of skiing and riding, the court made this determination.

Having determined that ski area operators owe a duty of care to maintain and operate ski lifts safely and that passengers owe a duty of care to safely board, ride, and disembark ski lifts, whether Snowbowl or the McCaws, or both, breached their respective duties presents a question of fact.

If you are a skier or boarder, this decision might cause some issues. Was the resort at fault for not stopping the chair lift on time or was the skier at fault for not loading correctly. That question is now in the hands of the trial court again.

So Now What?

The Arizona court did not rule outside the parameters of any other court in a state that has a skier safety act. A higher degree of care is owed to clients in those situations where the act does not protect the ski area and/or the clients have no control of their situation.

One interesting note in the Arizona Skier Safety Act is § 5-706. Release of liability. This section specifically states that a release is valid under Arizona’s law and will take precedence in determining the liability of the ski area.

Another area the court did not touch on, but must be the law in Arizona is the lawsuit is about mental injury with no corresponding physical injury. Very few states allow this type of claim. Normally, there can be no damages for pain and suffering unless the claimant has suffered a physical injury.

For more Arizona decisions see:

Arizona University did not owe student a duty of care during a study abroad program when the students organized an “off campus” trip, which resulted in a student’s death

Arizona limited right for parent to waive child’s right to sue

Indoor trampoline park company held liable for its actions in creating safety rules for its sub-groups creating liability for itself from the sub-group’s customers.

Travel agents have a very limited duty to disclose, unless they know about a hazard. If you book for others, you are a travel agent.

For more decisions concerning lift accidents see:

Colorado Premises Liability act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.

New Jersey decision explains the reasoning why ski areas owe the highest degree of care to people riding chairlifts.

Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?

What happens when the trial judge rules correctly under the law but between the trial motions and the appeal the State Supreme Court Changes things? Things change

California case examines the relationship between a common carrier and public policy when applied to a ski area chair lift.

People including children fall off chair lifts.

Nevada family settles lawsuit over death of son swept off Nevada chair lift by Avalanche

New Jersey decision explains the reasoning why ski areas owe the highest degree of care to people riding chairlifts.

Good record keeping proves defendant ski area did not operate lift improperly

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

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

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Arizona Ski Area Statutes

Posted: May 15, 2023 | Author: Recreation Law | Filed under: Arizona, Skiing / Snow Boarding | Tags: Arizona, Arozona Ski Area Safety Act, Chair Lift, rider, ski area, Ski Area Safety, Skier | Leave a comment

Arizona Ski Area Statutes

§ 5-702. Posting passenger information signs 2

§ 5-703. Posting ski information signs 3

§ 5-704. Additional duties of ski area operators 4

§ 5-705. Duties of skiers in any action against the ski area operator 4

“§ 5-706. Release of liability 5

§ 5-707. Competition 5

§ 5-701. Definitions

In this chapter, unless the context otherwise requires:

1. “Base area lift” means a passenger tramway that skiers ordinarily use without first using another passenger tramway.

2. “Chair lift” means a type of transportation on which passengers are carried on chairs suspended in the air and attached to a moving cable, chain or link belt supported by trestles or towers with one or more spans.

3. “Competitor” means a skier actually engaged in competition or in practice for competition with the permission of a ski area operator on any slope or trail or portion of any slope or trail designated for competition by the ski area operator.

4. “Conditions of ordinary visibility” means daylight and, if applicable, nighttime in nonprecipitating weather.

5. “Inherent dangers and risks of skiing” means those dangers or conditions that are an integral part of the sport of skiing, excluding acts of ordinary or gross negligence, or reckless or intentional conduct on the part of the ski area operator. Inherent dangers and risks of skiing include:

(a) Changing weather conditions.

(b) Existing and changing snow surface conditions, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up and machine-made snow.

(c) Surface or subsurface conditions, whether marked or unmarked, such as bare spots, forest growth, rocks, stumps, streambeds, trees or other natural objects.

(d) Impacts with lift towers, signs, posts, fences or other enclosures, hydrants, water pipes or other man-made structures and their components, whether marked or unmarked.

(e) Variations in steepness or terrain, including roads, catwalks and other terrain modifications, whether natural or as a result of slope design, snowmaking or grooming operations.

(f) Collisions with other skiers.

(g) The failure of skiers to ski within their own abilities.

6. “Passenger tramway” means a device used to transport passengers uphill on skis or in cars on tracks or suspended in the air by the use of steel cables, chains, belts or ropes, usually supported by trestles or towers with one or more spans.

7. “Rope tow” means a mode of transportation that pulls a skier riding on skis as the skier grasps the rope with the skier’s hands.

8. “Ski area” means all ski slopes and trails or other places within the boundary of a ski area operator’s property, administered as a single enterprise in this state.

9. “Ski area operator” means any corporation, company, partnership, firm, association or other commercial entity, including a natural person, and its employees, agents, members, successors in interest, affiliates and assigns that have responsibility for the operations of a ski area.

10. “Ski slopes and trails” means those areas designated by a ski area operator for use by skiers for any of the purposes listed in paragraph 11.

11. “Skier” means a person using a ski area for the purpose of skiing or sliding downhill on snow or ice on skis, a toboggan, sled, tube, skibob or snowboard or any other device, using any of the facilities of a ski area, including ski slopes and trails, or observing any activities in a ski area as a sightseer or visitor.

12. “Surface lift” means a mode of transportation that pulls skiers riding on skis by means of attachment to an overhead cable supported by trestles or towers. Surface lift includes a J-bar, a T-bar, a platter pull and any similar device.

ARS 5-701 Definitions (Arizona Revised Statutes (2023 Edition))

§ 5-702. Posting passenger information signs

A. A ski area operator shall maintain a sign system with concise, simple and pertinent information for the protection and instruction of people on a passenger tramway.

B. A ski area operator shall prominently display signs that are readable in conditions of ordinary visibility and, if applicable, that are adequately lighted for nighttime passengers, as follows:

1. At or near the loading point of each passenger tramway, rope tow and surface lift advising that any person not familiar with the operation of the tramway, rope tow or surface lift should ask ski area personnel for assistance and instruction.

2. In a conspicuous place at the loading area of each two-car or multicar passenger tramway that states the maximum capacity in pounds of the car and the maximum number of persons allowed in the car.

3. In the interior of each car in a two-car or multicar passenger tramway that states the maximum capacity in pounds of the car and the maximum number of persons allowed in the car and that gives instructions for procedures in the case of emergencies.

4. At all chair lifts stating the following:

(a) “Check for loose clothing and equipment”, which shall be posted ahead of the “prepare to unload” sign described in subdivision (c) of this paragraph.

(b) “Keep ski tips up” or “keep tips up”, which shall be posted ahead of any point where skis may come in contact with a platform or the snow surface while a skier is seated in the chair lift.

(d) “Remove pole straps from wrists”, which shall be posted where applicable.

(e) “Stop gate”, which shall be posted where applicable.

(f) “Unload here”, which shall be posted at the point designated for unloading.

5. At all rope tows and surface lifts stating the following:

(a) “Check for loose clothing and equipment”, which shall be posted ahead of the “prepare to unload” sign described in subdivision (b) of this paragraph.

(b) “Prepare to unload”, which shall be posted at least fifty feet ahead of each unloading area.

(d) “Safety gate”, “stay in tracks” or “stop gate”, which shall be posted where applicable.

(e) “Unload here”, which shall be posted at the point designated for unloading or where applicable.

C. At the operator’s discretion a ski area operator may post additional signs not required by subsection B.

D. Before opening a passenger tramway to the public each day, a ski area operator shall inspect the tramway for the presence of the signs required by subsection B or that are posted pursuant to subsection C.

E. The extent of the responsibility of a ski area operator under this section is to post and maintain the signs required by subsection B and to maintain any signs posted pursuant to subsection C. It is a rebuttable presumption that all passengers and skiers saw and understood the signs if evidence exists that the signs required by subsection B or that are posted pursuant to subsection C were posted and the signs were maintained.

ARS 5-702 Posting passenger information signs (Arizona Revised Statutes (2023 Edition))

§ 5-703. Posting ski information signs

A. A ski area operator shall maintain a sign and marking system with concise, simple and pertinent information for the protection and instruction of skiers. The signs required by this section shall be readable in conditions of ordinary visibility and, if applicable, that are adequately lighted for nighttime skiers.

B. A ski area operator shall place a sign that depicts and explains signs and symbols that skiers may encounter in the ski area in a position where all skiers who are proceeding to the uphill loading point of each base area lift will see the sign. The sign shall depict and explain at least the following signs and symbols:

1. A green circle and the word “easier”, which designates the least difficult ski slopes and trails of the ski area.

2. A blue square and the words “more difficult”, which designates the ski slopes and trails of the ski area that have a degree of difficulty between the least difficult and most difficult slopes and trails.

3. A black diamond and the words “most difficult”, which designates the most difficult ski slopes and trails of the ski area.

4. A figure in the shape of a skier with a band running diagonally from corner to corner of the sign with the word “closed” printed beneath the emblem.

C. If applicable, a ski area operator shall place a sign at or near the loading point of a passenger tramway that states one of the following:

1. If the tramway transports passengers only to the more difficult or most difficult ski slopes and trails in the ski area, the sign shall state: “WARNING: This lift services ‘more difficult’ (blue square emblem) and ‘most difficult’ (black diamond emblem) slopes and trails only.”.

2. If the tramway transports passengers only to the most difficult ski slopes and trails in the ski area, the sign shall state: “WARNING: This lift services ‘most difficult’ (black diamond emblem) slopes and trails only.”.

D. If a ski area operator closes a ski slope or trail or a portion of a ski slope or trail to the public, the operator shall place a sign notifying skiers that the slope or trail or portion of the slope or trail is closed at each identified entrance to the slope or trail or closed portion of the slope or trail. In lieu of placing a sign at each identified entrance, the ski area operator may close off the entrance with rope or fences.

E. A ski area operator shall place a sign at or near the beginning of each ski slope or trail that contains the appropriate symbol of the relative degree of difficulty of that slope or trail as set forth in subsection B. The requirements of this subsection do not apply to a ski slope or trail that is designated “easier” if a skier may substantially view the slope or trail in its entirety before beginning to ski the slope or trail.

F. A ski area operator shall mark the ski area boundaries that are designated on the trail map.

G. A ski area operator shall mark all ski lift tickets and season passes that the operator sells or makes available to skiers with the following in clearly readable print:

Warning: Under Arizona law, a skier accepts the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing, including changing weather conditions, existing and changing snow surface conditions, surface or subsurface conditions, whether marked or unmarked, collisions with natural or man-made objects, whether marked or unmarked and the failure of skiers to ski within their own abilities.

H. A ski area operator shall post and maintain signs where ski lift tickets and ski school lessons are sold and in a location that is clearly visible to skiers who are proceeding to the uphill loading point of each base area lift that state the following in clearly readable print:

Warning–important: Under Arizona law, a skier accepts the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing. Some of these risks are listed on your lift ticket or season pass. Please review your ticket or pass and ask the ski area personnel for more information.

ARS 5-703 Posting ski information signs (Arizona Revised Statutes (2023 Edition))

§ 5-704. Additional duties of ski area operators

A. If maintenance equipment is being used to maintain or groom any ski slope or trail that a ski area operator has not designated as closed pursuant to section 5-703, subsection D, the ski area operator shall place a conspicuous notice at or near the beginning of the slope or trail and at any entrance points to the slope or trail that notifies skiers about the presence of the equipment.

B. All snowmobiles operated on the ski slopes or trails of a ski area shall be equipped with at least the following:

1. One lighted head lamp.

2. One lighted red tail lamp.

3. A red or orange flag that is at least forty square inches in size and that is mounted at least five feet above the bottom of the tracks.

C. A ski area operator has no duties to any skier who skis beyond the designated boundaries of the ski area.

ARS 5-704 Additional duties of ski area operators (Arizona Revised Statutes (2023 Edition))

§ 5-705. Duties of skiers in any action against the ski area operator

In any civil action brought by a skier against a ski area operator, the duties of a skier shall be as follows:

1. At all times a skier has the sole responsibility to know the range of the skier’s own ability to negotiate a ski slope or trail and to ski within the limits of that ability. A skier expressly accepts the total risk of and all legal responsibility for injury to person or property resulting from any of the inherent dangers and risks of skiing.

2. Before using a chair lift, passenger tramway, rope tow or surface lift, a skier shall have the knowledge and ability to safely load, ride and unload from the device.

3. A skier shall maintain control of the skier’s speed and course at all times when skiing and shall maintain a proper lookout to enable the skier to avoid collisions with other skiers and with natural and man-made objects, whether marked or unmarked.

4. A skier shall avoid snow maintenance and grooming equipment, vehicles, lift towers, signs and other equipment located on ski slopes and trails.

5. A skier shall heed all posted information, signs and other warnings and shall refrain from acting in a manner that may cause or contribute to the injury of the skier or other persons or property. A skier is presumed to have seen and understood all signs and notices posted pursuant to sections 5-702, 5-703 and 5-704. Under conditions of decreased visibility, the duty rests on the skier to locate and ascertain the meaning of all the signs and notices.

6. A skier shall only use skis, snowboards and other equipment that have been equipped with a functional strap or other device designed to reduce the risk of runaway equipment.

7. A skier shall not ski on a ski slope or trail or a portion of a ski slope or trail that a ski area operator has designated as closed pursuant to section 5-703, subsection D.

8. A skier shall not begin to ski from a stationary position or enter a ski slope or trail from the side unless the skier is able to avoid colliding with moving skiers already on the ski slope or trail.

9. A skier shall not cross the uphill track or place any object in the uphill track of a rope tow or surface lift except at locations that have been designated for crossing by a ski area operator.

10. A skier shall not move uphill on any passenger tramway or use any ski slope or trail while the skier’s ability to do so is impaired by the consumption of alcohol or by the use of any narcotic or other drug.

11. A skier involved in a collision with another skier that results in an injury shall not leave the vicinity of the collision before giving the skier’s name and current address to an employee of the ski area operator or a member of a paid or voluntary ski patrol. This paragraph does not prohibit a skier from leaving the scene of a collision to secure first aid for a person who is injured in the collision. If a skier leaves the scene of a collision to secure first aid, the skier shall leave the skier’s name and current address as required by this paragraph after securing the first aid.

12. A skier shall not knowingly enter the public or private lands of an adjoining ski area if the owner of that land has closed that land to skiers and the landowner or the ski area operator has designated the adjoining land as closed.

ARS 5-705 Duties of skiers in any action against the ski area operator (Arizona Revised Statutes (2023 Edition))

§ 5-706. Release of liability

In any action brought by a skier against a ski area operator, if the ski area operator proves that the skier signed a valid release, the ski area operator’s liability shall be determined by the terms of the release.” ARS 5-706 Release of liability (Arizona Revised Statutes (2023 Edition))

§ 5-707. Competition

A. Before the beginning of any competition, a ski area operator shall allow any competitor a reasonable visual inspection of the course or area where the competition is to be held.

B. A competitor accepts the risk of all course conditions, including weather and snow conditions, course construction or layout and obstacles that a visual inspection immediately before the run could have revealed.

C. In any action brought by a competitor against any ski area operator, if the ski area operator proves that the participant in the competition signed a valid release, the ski area operator’s liability shall be determined by the terms of the release.

ARS 5-707 Competition (Arizona Revised Statutes (2023 Edition))

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McCaw v. Ariz. Snowbowl Resort, 84 Arizona Cases Digest 9, 521 P.3d 381 (Ariz. App. 2022)

Posted: May 15, 2023 | Author: Recreation Law | Filed under: Arizona, Legal Case, Ski Area, Skiing / Snow Boarding | Tags: Arizona, Arizona Snowbowl, Business Invitee, Chair Lift, duty, Duty Owed, rider, Skier, Skier Safety Act, Snowbowl | Leave a comment

McCaw v. Ariz. Snowbowl Resort, 84 Arizona Cases Digest 9, 521 P.3d 381 (Ariz. App. 2022)

84 Arizona Cases Digest 9
521 P.3d 381

Vincent MCCAW; Carly McCaw; Andrew McCaw, Plaintiffs/Appellants,
v.
ARIZONA SNOWBOWL RESORT, Defendant/Appellee.

No. 1 CA-CV 21-0585

Court of Appeals of Arizona, Division 1.

Filed November 22, 2022

Fuller Law Group PC, San Diego, CA, By Craig D. Fuller, Counsel for Plaintiffs/Appellants

Jones Skelton & Hochuli, Phoenix, By Jack Klecan, Kristin W. Basha, Eileen Dennis GilBride, Elizabeth B.N. Garcia, Co-Counsel for Defendant/Appellee

McClaugherty and Silver PC, Santa Fe, NM, By Joe L. McClaugherty, admitted pro hac vice, Co-Counsel for Defendant/Appellee

Judge Jennifer B. Campbell delivered the opinion of the Court, in which Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.

CAMPBELL, Judge:

¶1 Vincent, Carly, and Andrew McCaw (the McCaws) appeal from the superior court’s ruling granting summary judgment in favor of Arizona Snowbowl Resort (Snowbowl). Because the Arizona Ski Safety Act (the Act) does not shield a ski area operator from liability for injuries arising from ski lift accidents, it does not bar the McCaws’ negligence claims. Accordingly, we vacate the superior court’s summary judgment ruling and remand for proceedings consistent with this opinion.

BACKGROUND

¶2 In December 2016, Vincent and his two children, 17-year-old Andrew and 14-year-old Carly, visited Snowbowl for a day of skiing and snowboarding. While they waited to load the ski chair lift, Andrew’s snowboard crossed Carly’s skis, causing her skis to “[go] out [from] underneath her.” Unable to steady herself and sit properly, Carly’s arms caught the approaching lift chair, leaving her “in a very severe slouch” position. With the skis and snowboard still entangled and believing she “would be able to get back on” properly, Carly did not attempt to maneuver away from the chair as it proceeded five to ten feet along a cable wire before beginning its ascent.

¶3 Upon realizing Carly’s precarious position, Vincent and Andrew grabbed her arms, turned toward the ski lift operator, and yelled for him to “stop” the ski lift. As other ski lift passengers became aware of the situation, they also began shouting at the operator for help. By that time, however, the operator was attending to other skiers in the load line and could not hear the passengers’ pleas over the sound of blaring music. Andrew and Vincent tried to hold onto Carly, but as she began to slip from their grasp, they determined they would have to let her go. When their chair traveled over powdered snow, Vincent and Andrew dropped Carly, hoping the unpacked snow would provide a safe landing. Carly fell over 34 feet but “popped right up” and waved to Vincent and Andrew upon landing.

¶4 After the ski lift incident, the McCaws resumed their normal lives and activities. However, Carly, Vincent, and Andrew began having recurring nightmares.

¶5 Alleging the ski lift incident caused them “emotional distress” and “psychiatric injuries,” the McCaws filed a negligence complaint against Snowbowl. Snowbowl answered, denying liability, and moved for summary judgment. Specifically, Snowbowl asserted that it “owed no duty” to the McCaws under the Act. Snowbowl also claimed that the McCaws failed to present evidence they sustained emotional distress “result[ing] in the kind of bodily manifestation of physical injury or illness cognizable under Arizona law.”

¶6 After oral argument on the motion, the superior court granted summary judgment in favor of Snowbowl, agreeing that the ski area operator owed no duty to the McCaws. The superior court found that the Act “comprehensively defines the duties of skiers and the duties of a ski area operator.” Construing the Act’s provisions, the court determined that “the duty to safely (1) load, (2) ride, and (3) unload a chair lift is the skier’s exclusive duty and not a duty of the ski area operator.” Without ruling on Snowbowl’s alternative argument regarding insufficient evidence of cognizable damages, the superior court dismissed the matter with prejudice.1

¶7 Over the McCaws’ objection, the superior court awarded Snowbowl its requested costs and entered a final judgment in its favor. The McCaws timely appealed.

DISCUSSION

¶8 The McCaws challenge the superior court’s summary judgment ruling, contending Snowbowl owed them a duty to monitor the ski lift and promptly intercede when the misloading occurred. Disagreeing with the superior court’s determination that the Act assigns all duties related to ski lift safety “exclusively” to skiers, the McCaws argue that the Act provides ski area operators the affirmative defenses of contributory negligence and assumption of the risk. As a corollary, and for the first time on appeal, the McCaws assert that the superior court’s ruling violated Article 18, Section 5, of the Arizona Constitution by infringing on their right to have a jury determine the existence or extent of their contributory negligence and assumption of risk.

¶9 In reviewing a grant of summary judgment, we view the facts and the reasonable inferences drawn from those facts in the light most favorable to the non-moving party and affirm “if the evidence produced in support of the defense or claim has so little probative value that no reasonable person could find for its proponent.” State Comp. Fund v. Yellow Cab Co. of Phx. , 197 Ariz. 120, 122, ¶ 5, 3 P.3d 1040, 1042 (App. 1999). We review de novo the superior court’s application of the law. Id. ; see also Ariz. R. Civ. P. 56(a) (“The court shall grant summary judgment 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.”).

¶10 “To establish a claim for negligence, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual damages.” Gipson v. Kasey , 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230 (2007). “Whether the defendant owes the plaintiff a duty of care is a threshold issue[,]” subject to our de novo review. Id. at ¶¶ 9, 11 ; Guerra v. State , 237 Ariz. 183, 185, ¶ 7, 348 P.3d 423, 425 (2015). To survive a motion for summary judgment, the plaintiff must show a duty exists; “absent some duty, an action for negligence cannot be maintained.” Quiroz v. ALCOA Inc. , 243 Ariz. 560, 563, ¶ 2, 416 P.3d 824, 827 (2018) ; Gipson , 214 Ariz. at 143, ¶ 11, 150 P.3d at 230.

¶11 A duty is an “obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm.” Gipson , 214 Ariz. at 143, ¶ 10, 150 P.3d at 230 (quotation and citation omitted). “The existence of a duty of care is a distinct issue from whether the standard of care has been met in a particular case.” Id. ; Markowitz v. Ariz. Parks Bd. , 146 Ariz. 352, 355, 706 P.2d 364, 367 (1985) (noting the existence of a duty must not “be confused with details of the standard of conduct” required to satisfy the duty); see also
Stephens v. Bashas’ Inc. , 186 Ariz. 427, 431, 924 P.2d 117, 431 (App. 1996) (explaining that the existence of a duty must be determined “on the basis of the parties’ relationship, not on the details of their conduct”).

¶12 “As a legal matter, the issue of duty involves generalizations about categories of cases.” Gipson , 214 Ariz. at 143, ¶ 10, 150 P.3d at 230. “Thus, a conclusion that no duty exists is equivalent to a rule that, for certain categories of cases, defendants may not be held accountable for damages they carelessly cause, no matter how unreasonable their conduct.” Id. at 143-44, ¶ 11, 150 P.3d at 230–31.

¶13 “Duties of care may arise from special relationships based on contract, family relations, or conduct undertaken by the defendant,” as well as from public policy considerations. Id. at 145, ¶¶ 18, 23, 150 P.3d at 232. “Foreseeability of harm is not a relevant consideration in determining the threshold legal issue of whether a duty exists, nor are case-specific facts.” Guerra , 237 Ariz. at 185, ¶ 8, 348 P.3d at 425 ; see also
Quiroz , 243 Ariz. at 563, ¶ 2, 416 P.3d at 827 ; Gipson , 214 Ariz. at 144, ¶ 15, 150 P.3d at 231.

¶14 In this case, the McCaws assert that Snowbowl owed them a duty of care based on their special relationship and status as Snowbowl’s business invitees. “A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Nicoletti v. Westcor, Inc. , 131 Ariz. 140, 143, 639 P.2d 330, 333 (1982) (internal quotations and citations omitted). Under the common law, a business owner has a duty to both maintain its premises in a reasonably safe condition and conduct its business in a reasonably safe manner to avoid causing injury to invitees. Stephens , 186 Ariz. at 430-31, 924 P.2d at 120–21 ; see also Restatement (Second) of Torts § 343 cmt. b (1965) (stating that “an invitee enters [land] upon an implied representation or assurance that [it] has been prepared and made ready and safe for his reception”).

¶15 It is undisputed that the McCaws were Snowbowl’s business invitees at the time of the ski lift incident. The question is whether the Act abrogates common-law negligence principles, relieving ski area operators of a duty of care they would otherwise owe to ski lift passengers.

¶16 “When interpreting a statute, our primary goal is to give effect to the legislature’s intent.” Wilks v. Manobianco , 237 Ariz. 443, 446, ¶ 8, 352 P.3d 912, 915 (2015) (quotation and citation omitted). To derive that intent, we consider the “statutory language in view of the entire text, considering the context and related statutes on the same subject.” Nicaise v. Sundaram , 245 Ariz. 566, 568, ¶ 11, 432 P.3d 925, 927 (2019). “If the language is clear and unambiguous,” we follow the text as written and “need not resort to other methods of statutory construction.” Indus. Comm’n of Ariz. v. Old Republic Ins. Co. , 223 Ariz. 75, 77, ¶ 7, 219 P.3d 285, 287 (App. 2009). Only if a statute is ambiguous will we examine “the statute’s history, context, consequences, and purpose.” Wilks , 237 Ariz. at 446, ¶ 8, 352 P.3d at 915. When statutes relate to the same subject or general purpose, they “should be read in connection with, or should be construed with other related statutes, as though they constituted one law.” Pinal Vista Props., L.L.C. v. Turnbull , 208 Ariz. 188, 190, ¶ 10, 91 P.3d 1031, 1033 (App. 2004) (quotation and citation omitted). “Further, each word or phrase of a statute must be given meaning so that no part is rendered void, superfluous, contradictory or insignificant.” Id.

¶17 “If the legislature seeks to preempt a cause of action[,] … the law’s text or at least the legislative record should say so explicitly.” Orca Commc’ns Unlimited, LLC v. Noder , 236 Ariz. 180, 182, ¶ 10, 337 P.3d 545, 547 (2014) (quotation and citation omitted). “Absent a clear manifestation of legislative intent to displace a common-law cause of action, we interpret statutes with every intendment in favor of consistency with the common law.” Id. (quotation and citation omitted); see also A.R.S. § 1-201 (“Adoption of common law; exceptions”). To be clear, “it is not the function of the courts to rewrite statutes,” and we will not “interpret a statute in favor of denial or preemption of tort claims – even those that are not or may not be constitutionally protected – if there is any reasonable doubt about the legislature’s intent.” Id. at ¶¶ 10-11 (quotations and citations omitted).

¶18 In 1997, the legislature enacted the Act, A.R.S. §§ 5-701 through -707, which regulates ski areas and delineates the responsibilities of both operators and skiers. Section 5-702 requires ski area operators to “prominently display signs” outlining “pertinent information for the protection and instruction” of ski lift passengers. A.R.S. § 5-702(A), (B). As relevant here, ski area operators must post a sign at the loading point of each ski lift admonishing “any person not familiar with the operation” of the ski lift to “ask ski area personnel for assistance and instruction .” A.R.S. § 5-702(B)(1) (emphasis added). In addition, ski area operators must place a sign on the interior of each ski lift chair “that gives instructions for procedures in the case of emergencies .” A.R.S. § 5-702(B)(3) (emphasis added). Similarly, A.R.S. § 5-703 requires ski area operators to display signs containing “pertinent information for the protection and instruction of skiers.” Among the required postings, ski area operators must display signs indicating the difficulty level of each slope and trail. A.R.S. § 5-703(B), (C). Ski area operators must also clearly mark the ski area boundaries and either place a warning sign or rope off closed areas. A.R.S. § 5-703(D), (F). Apart from posting signs at designated areas, ski area operators must maintain certain equipment, A.R.S. § 5-704, and mark all ski lift tickets and passes with the following admonition:

A.R.S. § 5-703(G). This mandatory warning derives from A.R.S. § 5-701(5) ‘s definition of “[i]nherent dangers and risks of skiing”:

[T]hose dangers or conditions that are an integral part of the sport of skiing, excluding acts of ordinary or gross negligence, or reckless or intentional conduct on the part of the ski area operator . Inherent dangers and risks of skiing include:

(a) Changing weather conditions.

(b) Existing and changing snow surface conditions, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up and machine-made snow.

(c) Surface or subsurface conditions, whether marked or unmarked, such as bare spots, forest growth, rocks, stumps, streambeds, trees or other natural objects.

(d) Impacts with lift towers, signs, posts, fences or other enclosures, hydrants, water pipes or other man-made structures and their components, whether marked or unmarked.

(e) Variations in steepness or terrain, including roads, catwalks and other terrain modifications, whether natural or as a result of slope design, snowmaking or grooming operations.

(f) Collisions with other skiers.

(g) The failure of skiers to ski within their own abilities.

(Emphasis added.)

¶19 In turn, A.R.S. § 5-705 outlines the “duties of a skier” for purposes of “any civil action brought by a skier against a ski area operator.” First and foremost, A.R.S. § 5-705(1) provides that “[a] skier expressly accepts the total risk of and all legal responsibility for injury to person or property resulting from any of the inherent dangers and risks of skiing .” (Emphasis added.) Specific to this appeal, subsection (2) states: “Before using a chair lift … a skier shall have the knowledge and ability to safely load, ride and unload from the device,” and subsection (5) states: “A skier shall heed all posted information, signs and other warnings and shall refrain from acting in a manner that may cause or contribute to the injury of the skier or other persons or property.” A.R.S. § 5-705(2), (5). The remaining enumerated duties pertain to skiers’ conduct on slopes and trails. A.R.S. § 5-702(3), (4), (6)-(12).

¶20 Reading these related provisions together, the legislature adopted an analytical framework under which skiers assume all legal responsibility for injuries arising out of the inherent dangers of skiing while ski area operators retain common-law liability for both ordinary and gross negligence . As part of this framework, the legislature also imposed duties on ski area operators and skiers. Sections 5-702 to -704 impose certain posting and equipment maintenance duties on ski area operators, the breach of which constitutes negligence per se. Likewise, A.R.S. § 5-705 imposes certain responsibilities on skiers, the violation of which constitutes a defense to a civil action. This reading is consistent with the plain language of the Act.

¶21 While no previous Arizona case has interpreted the Act, courts in numerous other jurisdictions have construed similar ski safety acts enacted by their legislatures. Although not controlling, we find the two-tier assumption of risk analysis conceptualized in many of these out-of-state cases persuasive.

¶22 Under the first tier, or “primary assumption of risk,” a ski area operator owes no duty to a skier as a matter of law, and a negligence action cannot stand. Van Dyke v. S.K.I. Ltd. , 67 Cal.App.4th 1310, 79 Cal. Rptr. 2d 775, 778 (1998) ; see also
Lopez v. Ski Apache Resort , 114 N.M. 202, 836 P.2d 648, 653 (N.M. Ct. App. 1992) (“[P]rimary assumption of the risk is an alternative expression for the proposition that the defendant … owed no duty to the plaintiff.”). The primary assumption of the risk principle applies only when the plaintiff has engaged in a sport, or other activity regarded as dangerous and “the injury suffered arises from an inherent risk in the activity.” Van Dyke , 79 Cal. Rptr. 2d at 778 (emphasis added); see also
Jagger v. Mohawk Mountain Ski Area, Inc. , 269 Conn. 672, 849 A.2d 813, 828 (2004) (“[F]or inherent hazards, ski area operators owe skiers no duty of care and skiers assume the risk of those hazards in the primary sense.”); Murray v. Great Gorge Resort, Inc. , 360 N.J.Super. 395, 823 A.2d 101, 106 (2003) (“In the skiing context, an inherent risk is one that cannot be removed through the exercise of due care if the sport is to be enjoyed.” (citation omitted)); Horvath v. Ish , 134 Ohio St.3d 48, 979 N.E.2d 1246, 1251 (2012) (“To be covered under the [primary-assumption-of-the-risk] doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.” (citation omitted)). Determining what constitutes an “inherent risk” presents a legal question for the court. Van Dyke , 79 Cal. Rptr. 2d at 778.

¶23 In contrast, under the secondary assumption of the risk tier, both the ski area operator and the skier have reciprocal responsibilities. See
Horvath , 979 N.E.2d at 1251 (determining the duties of operators and skiers “are reciprocal,” with “skiers ow[ing] ski-area operators certain enumerated responsibilities”); see also
Jagger , 849 A.2d at 828 (“For those hazards which are not an innate part of the sport of skiing, or over which an operator can act reasonably to eliminate or minimize the potential for harm, operators owe skiers a duty of reasonable care.”). Whether the parties breached their respective duties of care, and the comparative negligence of the parties, if any, present questions of fact for a jury. See
Jagger , 849 A.2d at 829.

¶24 Applied to the Act, the primary assumption of risk tier governs any injury arising from the “inherent dangers and risks of skiing,” as statutorily defined. A.R.S. §§ 5-705(1), -701(5). Because a ski area operator owes no duty to eliminate or guard against risks inherent to skiing, it is only liable for a plaintiff’s injuries arising out of the dangers inherent to skiing if it breached its posting and equipment requirements as delineated in A.R.S. §§ 5-702 through -704, thereby contributing to the injuries sustained. “This is a rational solution for limiting ski area operators’ liability and promoting safety.” Grieb v. Alpine Valley Ski Area, Inc. , 155 Mich.App. 484, 400 N.W.2d 653, 656 (1986) ; see also
Gipson , 214 Ariz. at 146, ¶ 29, 150 P.3d at 233 (“When a court or legislature adopts a no-duty rule, it generally does so based on concerns that potential liability would chill socially desirable conduct or otherwise have adverse effects.”).

¶25 When an injury does not arise out of a risk inherent to skiing, common-law negligence principles apply, including a duty of care owed to business invitees. See
Horvath , 979 N.E.2d at 1251. Because an operational failure with a ski lift is not an “inherent risk” of skiing, as that term is statutorily defined, the Act does not immunize a ski area operator from liability for ski lift negligence. See
Pietruska v. Craigmeur Ski Area , 259 N.J.Super. 532, 614 A.2d 639, 641 (1992) (“Improper operation of a ski lift is not an inherent risk of skiing since, with due care, it can be eliminated. While the [ski safety act] imposes certain duties on a skier who uses a lift, it does not identify proper usage thereof as an inherent risk.”). This, too, is a rational solution because, unlike the slopes and trails, where a skier has “freedom of movement and choice,” a skier has no control over the movement of a ski lift. See
Mannhard v. Clear Creek Skiing Corp. , 682 P.2d 64, 66 (Colo. Ct. App. 1983).

¶26 In sum, the Act provides a liability framework that generally maintains common-law negligence principles while immunizing ski area operators from lawsuits for injuries arising from the inherent risks of skiing. By its clear terms, the Act imposes a duty on skiers to have the knowledge and ability to safely load, ride, and unload from a ski lift, but it does not identify passage on a ski lift as an inherent risk of skiing. Indeed, other provisions in the Act demonstrate that a ski area operator owes a duty of care to ski lift passengers. For example, A.R.S. § 5-702(B)(1) requires ski area operators to assist inexperienced passengers in loading ski lifts, and A.R.S. § 5-702(B)(3) requires ski lift operators to have predetermined emergency procedures in place in the event of a ski lift mishap. While the Act charges a ski lift passenger with a duty of care to safely ride a ski lift,2 it does not relieve a ski area operator of the common-law duty to maintain and operate ski lifts with care for its business invitees. Had the legislature intended to foreclose a passenger from bringing a negligence claim against a ski area operator for an injury arising out of passage on a ski lift, it was required to do so by expressly abrogating the common law and including passage on a ski lift within the enumerated inherent risks of skiing. Young v. Beck , 227 Ariz. 1, 4, ¶ 13, 251 P.3d 380, 383 (2011) (“We generally do not find that a statute changes common law unless the legislature clearly and plainly manifests an intent to have the statute do so.” (cleaned up)). Absent express preemption language, we will not construe the Act as barring common-law negligence claims. See
Bayer v. Crested Butte Mountain Resort, Inc. , 960 P.2d 70, 72 (Colo. 1998) (“A ski lift operator must exercise the highest degree of care commensurate with the lift’s practical operation ….”); D’Amico v. Great Am. Recreation, Inc. , 265 N.J.Super. 496, 627 A.2d 1164, 1166-67 (1992) (concluding ski lift operators “should be held to the highest standard of care” because a “skier has no ability to stop the cable from moving” and cannot “exit the chair once it has begun its ascent”).

¶27 Having determined that ski area operators owe a duty of care to maintain and operate ski lifts safely and that passengers owe a duty of care to safely board, ride, and disembark ski lifts, whether Snowbowl or the McCaws, or both, breached their respective duties presents a question of fact.3
See
Wilks , 237 Ariz. at 447, ¶ 15, 352 P.3d at 916. Therefore, the superior court erred by granting summary judgment in Snowbowl’s favor on the basis that it owed no duty as a matter of law.4

CONCLUSION

¶28 For the foregoing reasons, we vacate the superior court’s summary judgment ruling and award of costs and remand for proceedings consistent with this opinion. In their briefing, the McCaws requested their attorneys’ fees incurred on appeal, failing to cite any supporting legal authority, but withdrew their request at oral argument. We award the McCaws their costs incurred on appeal, conditioned upon compliance with ARCAP 21.

——–

Notes:

1 Contrary to Snowbowl’s assertion, the superior court did not enter a “ruling” regarding the legal sufficiency of the McCaws’ damages evidence.

2 The McCaws posit that A.R.S. § 5-705(2) requires ski lift passengers only to possess the requisite knowledge to safely ride a ski lift, without requiring them to conform to that knowledge for both their protection and the safety of others. Stated differently, the McCaws argue that ski lift passengers have no duty to safely ride ski lifts under the Act. We reject this construction as nonsensical. See
Walgreen Ariz. Drug Co. v. Ariz. Dep’t of Revenue , 209 Ariz. 71, 73, ¶ 12, 97 P.3d 896, 898 (App. 2004) (explaining courts “interpret statutes to give them a fair and sensible meaning and to avoid absurd results”).

3 In this case, the extent of the plaintiffs’ contributory negligence, if any, must be determined individually.

4 Given our resolution of the duty issue, we need not address the McCaws’ constitutional claim.

@2023 Summit Magic Publishing, LLC

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Anderson v. Rugged Races, LLC, 42 F.4th 955 (8th Cir. 2022)

Posted: May 8, 2023 | Author: Recreation Law | Filed under: Minnesota, Racing, Release (pre-injury contract not to sue) | Tags: Bang the Gong, Course Race, Federal Court of Appeals, Greater than Ordinary Negligence, Gross negligence, Jump, Minnesota, Mud Run, obstacle, Obstacle course racing, Obsticle Course, Ordinary Negligence, Platform, Release, Rugged Maniac, Spartan Race, Tough Mudder | Leave a comment

Anderson v. Rugged Races, LLC, 42 F.4th 955 (8th Cir. 2022)

42 F.4th 955

Jeanne ANDERSON, Plaintiff – Appellant
v.
RUGGED RACES, LLC; Dennis Raedeke, Inc., doing business as Wild Mountain Recreation Area, Defendants – Appellees

No. 20-3436

United States Court of Appeals, Eighth Circuit.

Submitted: February 16, 2022
Filed: August 2, 2022

Counsel who represented the appellant was L. Michael Hall, of Saint Cloud, MN and Mara Brust of Saint Cloud, MN.

Counsel who represented the appellee was John M. Bjorkman, of Saint Paul, MN, Mark A. Solheim, of Saint Paul, MN, Anthony James Novak, of Saint Paul, MN and Pat Henry O’Neill of Saint Paul, MN.

Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.

LOKEN, Circuit Judge.

In September 2016, Jeanne Anderson shattered her heel bone participating in the Rugged Maniac Twin Cities 5k obstacle race at the Wild Mountain Recreation Area (“Wild Mountain”). In 2018, Anderson sued Rugged Races LLC (“Rugged Races”), the race promoter, and Dennis Raedeke, Inc., the owner of Wild Mountain, alleging that defendants were “grossly negligent” in failing to perform their duties to protect race participants from unreasonable risks of harm. She appeals the district court’s1 grant of summary judgment in favor of both defendants. The diversity action is governed by Minnesota state law. Reviewing the grant of summary judgment de novo , we affirm. See
Kraft v. Ingersoll-Rand Co., 136 F.3d 584, 585-86 (8th Cir. 1998) (standard of review).

I. Background

Since 2010, Rugged Races has planned hundreds of obstacle races around the country, including Rugged Maniac Twin Cities. The events feature an obstacle course with a series of challenges involving barbed wire, fire, water, and mud, followed by a post-race party. When Anderson registered for the 2016 Twin Cities event, she signed a Race Participant Agreement (the Agreement). In Part III of the Agreement, titled Assumption of Inherent Risks , Anderson acknowledged:

I understand fully the inherent risks involved in the Event and assert that I am willingly and voluntarily participating in the Event. … (1) I understand the nature of the Event; (2) I understand the physical and mental demands that this activity will place upon me; and (3) I understand that I may be injured by participating in the Event. I hereby assert that I knowingly assume all of the inherent risks of the activity and take full responsibility for any and all damages, liabilities, losses or expenses that I incur as a result of participating in the Event.

In Part IV, titled Waiver of Liability for Ordinary Negligence , Anderson waived and discharged both Rugged Races and Wild Mountain “from any and all claims resulting from the INHERENT RISKS of the Event or the ORDINARY NEGLIGENCE of Rugged Races LLC (or other Released Parties).” Anderson again signed the Agreement when she checked in on race day.

After starting the race and completing the first seven obstacles, Anderson reached the “Bang the Gong” challenge. This obstacle required her to jump from a raised platform, attempt to slap a gong in midair, and land in a pit of muddy water. When Anderson landed in the pit her “left foot hit something hard.” She crawled from the pit, received medical attention, and learned she had shattered the calcaneus bone in her left heel. Of the more than 4000 participants in the 2016 race, four others were injured on the Bang the Gong obstacle, suffering injuries to their foot or ankle after landing in the pit.

Anderson’s Complaint alleged (i) that defendants had duties to design and construct a reasonably safe course, maintain the course in a safe condition, inspect the course for unreasonable risks of harm, warn race participants of unreasonable risks, supervise parties responsible for performing those duties, and operate and maintain the course to ensure participants were not exposed to unreasonable risks; and (ii) that defendants were grossly negligent in failing to perform each of these duties. After discovery, defendants moved for summary judgment. The summary judgment record includes deposition testimony from Anderson and Rugged Races employees, declarations from the other injured participants, reports by Anderson’s expert witnesses, and other documentary evidence.

The district court granted summary judgment in favor of both defendants. Anderson v. Rugged Races LLC, 496 F. Supp. 3d 1270 (D. Minn. 2020). The court concluded that the exculpatory clause in the Agreement barred any claims for ordinary negligence and that Anderson had failed to show “greater-than-ordinary negligence.” On appeal, Anderson argues (i) the exculpatory clause is unenforceable; (ii) if enforceable, it does not waive claims based on defendants’ alleged greater-than-ordinary negligence; and (iii) the summary judgment record includes evidence from which a reasonable jury could find greater-than-ordinary negligence. Defendants argue the district court properly granted summary judgment because there is insufficient evidence of greater-than-ordinary negligence. They further argue that Minnesota law does not recognize any claim other than the claims for ordinary negligence that Anderson waived in the Agreement.2

We will affirm the grant of summary judgment when the evidence viewed in the light most favorable to the nonmoving party presents “no genuine issue of material fact” from which “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis omitted); see Fed. R. Civ. P. 56(a). “A mere scintilla of evidence is insufficient to defeat summary judgment and if a nonmoving party who has the burden of persuasion at trial does not present sufficient evidence as to any element of the cause of action, then summary judgment is appropriate.” Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir. 2010) (quotations and citations omitted).

II. Analysis

On appeal, Anderson argues that her waiver of ordinary negligence claims in the Agreement is not enforceable and, alternatively, that it does not waive claims based on greater-than-ordinary negligence. Defendants counter that the exculpatory clause is valid and enforceable and bars all of Anderson’s claims. There is a considerable body of relevant Minnesota case law on these issues.

A. Under Minnesota law, there is no common law action for “gross negligence.” See Peet v. Roth Hotel Co., 191 Minn. 151, 253 N.W. 546, 548 (1934). However, the negligence standard governing particular claims may be varied by statute or by contract. See, e.g., State v. Bolsinger, 221 Minn. 154, 21 N.W.2d 480 (1946) (criminal negligence statute), overruled on other grounds, State v. Engle, 743 N.W.2d 592 (Minn. 2008). Under Minnesota law, as in most States, “ordinary negligence” is the “failure to exercise such care as persons of ordinary prudence usually exercise under such circumstances.” Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn. 2011) (quotation omitted). Gross negligence is “substantially and appreciably higher in magnitude than ordinary negligence … [and is] the absence of slight diligence, or the want of even scant care.” Bolsinger, 21 N.W.2d at 485.

In the Race Participant Agreement, Anderson waived all claims resulting from “the INHERENT RISKS of the Event or the ORDINARY NEGLIGENCE” of the defendants. Minnesota Courts call provisions of this type exculpatory clauses. In Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920 (Minn. 1982), the Supreme Court of Minnesota dismissed a fitness spa member’s negligence action, based on the exculpatory clause in her membership agreement. The Court noted that prior cases had upheld exculpatory clauses in construction contracts and commercial leases:

Even though we have recognized the validity of exculpatory clauses in certain circumstances, they are not favored in the law. A clause exonerating a party from liability will be strictly construed against the benefited party. If the clause is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced .

Id. at 923 (emphasis added, citation omitted). Reversing the denial of summary judgment, the Court held:

that the exculpatory clause in Spa Petite’s membership contract was unambiguous and limited to exoneration from negligence; that there was not disparity of bargaining power; and that the clause was not void as against public policy.

Id. at 926.

In Beehner v. Cragun Corp., 636 N.W.2d 821 (Minn. Ct. App. 2001), the Minnesota Court of Appeals considered a riding stable’s exculpatory clause. Unlike the exculpatory clause in Schlobohm, which applied to “all acts of active or passive negligence,” 326 N.W.2d at 922, the clause in Beehner was limited to claims of “ordinary negligence” and expressly excluded claims based on “gross negligence and willful and wanton misconduct.” 636 N.W.2d at 825. Reversing the grant of summary judgment in favor of the riding stable, the Court held:

In a dispute over the applicability of an exculpatory clause, summary judgment is appropriate only when it is uncontested that the party benefited by the exculpatory clause has committed no greater-than-ordinary negligence . Thus, summary judgment is appropriate here only if Outback’s conduct does not, as a matter of law, rise to the level of gross negligence or wanton and willful misconduct .

Id. at 829 (emphasis added and citation omitted).

The district court treated Beehner as controlling Minnesota authority and applied the greater-than-ordinary negligence standard. Defendants argue Minnesota law does not recognize any claim other than the claims for ordinary negligence. We need not resolve that question in this case because, in granting summary judgment in favor of defendants, the district court adopted the view of this issue that is most favorable to Anderson, the non-moving party. Because we agree with the court that Anderson presented insufficient evidence of greater-than-ordinary negligence, we assume without deciding that this standard is consistent with controlling Minnesota law.

In addition to arguing that greater-than-ordinary negligence is the correct standard, Anderson argues that the exculpatory clause at issue is unenforceable because it is ambiguous in scope: Minnesota law imposes on defendants as the landowner and operator of a for-profit recreational activity a duty to exercise a “high degree of care” to ensure that invitees are not exposed to unreasonable risks of harm. Hanson v. Christensen, 275 Minn. 204, 145 N.W.2d 868, 873-74 (1966) ; see
Olmanson v. LeSueur Cty., 693 N.W.2d 876, 881 (Minn. 2005) ; Isler v. Burman, 305 Minn. 288, 232 N.W.2d 818, 821 (1975). This argument is without merit. First, the “ordinary negligence” clause in the Agreement is less, or at least no more ambiguous than the exculpatory clause held to be un ambiguous in Schlobohm, 326 N.W.2d at 922-23 (the term “all acts of active or passive negligence … specifically purports to exonerate Spa Petite from liability for acts of negligence and negligence only”), and Beehner, 636 N.W.2d at 827. Second, when the duty to exercise this high degree of care applies, it is an ordinary negligence duty to exercise “reasonable care, meaning care commensurate with the risks involved.” Hanson, 145 N.W.2d at 873. Thus, that the waiver of claims for “ordinary negligence” includes this type of duty for landowners and for-profit operators does not make the waiver ambiguous. We agree with the district court that the Agreement’s exculpatory clause is unambiguously limited to ordinary negligence. As in Beehner, Anderson was a voluntary participant in a recreational activity that does not “implicate[ ] a public or essential service.” 636 N.W.2d at 828.

B. Anderson claims defendants exhibited greater-than-ordinary negligence in the design, construction, supervision, and maintenance of the Bang the Gong obstacle. The district court properly rejected these claims.

On appeal Anderson first argues there was greater-than-ordinary negligence in the design of the Bang the Gong challenge based on expert testimony supporting her claim that a deeper level of water in the landing pit could have prevented her injury. However, Bang the Gong was not a new obstacle for the 2016 Rugged Maniac race. Rather it was tested, used in multiple previous events, and modeled on an earlier obstacle that was safely used for years. We agree with the district court that “[t]he fact that thousands of participants — many of whom undoubtedly outweighed Anderson — jumped into the landing pit without incident is compelling evidence that the water level was not unreasonably low.” Anderson, 496 F. Supp. 3d at 1285.

Anderson also argues the summary judgment record supports her claim of greater-than-ordinary negligence in the construction process for the 2016 event. Like the district court, we disagree. Rugged Races followed a detailed protocol when constructing Bang the Gong for this and other events, described in deposition testimony by Rugged Races’ Senior Vice President, Bradford Scudder, and a construction crew member from the 2016 race, Christian Melnik. The process involved digging a pit, removing debris, lining the pit with a tarp, filling it with water, and then constructing the platform participants would use to jump into the pit. The protocol requires crew members to inspect the pit three separate times before it is filled to ensure no rocks, roots, or other debris are present. They conduct two subsequent visual inspections after the pit is filled, including on the morning of the race. Although there was no supporting documentation, Melnik testified that he was not aware that the construction crew ever deviated from this protocol before, during, or after the 2016 race. Anderson, 496 F. Supp. 3d at 1274. The district court properly concluded that such evidence would be admissible as evidence of Rugged Races’ routine. See Fed. R. Evid. 406 (court may admit evidence of routine practice “regardless of whether it is corroborated or whether there was an eyewitness”).

Anderson concedes the admissibility of the Rule 406 evidence, but argues such “self-serving assertion[s]” are not dispositive. True enough. But this testimony by persons familiar with and involved in the process was strong evidence that Rugged Races complied with its established routine of carefully constructing and inspecting the obstacle before the race. Anderson’s disputed evidence of a submerged rock3 was insufficient to create a material issue of fact that would meet her burden to prove that defendants were liable for greater-than-ordinary negligence. Anderson, 496 F. Supp. 3d at 1280. We agree with the district court that Anderson offered “little more than speculation” supporting her contentions that the rock was present before the pit was filled and would have been discovered had the construction crew not acted with greater-than-ordinary negligence. Id. at 1284. To avoid summary judgment, the nonmoving party must provide “sufficient probative evidence” based on “more than mere speculation [or] conjecture.” Ball v. City of Lincoln, 870 F.3d 722, 727 (8th Cir. 2017) (quotation omitted).

We further agree with the district court that Anderson submitted insufficient evidence to establish that defendants acted with greater-than-ordinary negligence during or after the race. The district court estimated that Anderson was injured at approximately 1:00 pm.4 The court carefully reviewed when defendants would have learned that four other participants reported similar injuries before concluding that the record did not support Anderson’s contention that Rugged Races knew or should have known of a rock in the landing pit in time to take preventive action. 496 F. Supp. 3d at 1278-80. Anderson argues prior notice is irrelevant because Rugged Races created the danger. Rugged Races constructed the obstacle, but there is no evidence that Rugged Races placed a dangerous rock in the pit, only circumstantial evidence that it failed to discover a hidden danger. Under Minnesota law, landowners are not “insurers of safety of their patrons.” Hanson, 145 N.W.2d at 873. “Unless the dangerous condition actually resulted from the direct actions of a landowner or his or her employees, a negligence theory of recovery is appropriate only where the landowner had actual or constructive knowledge of the dangerous condition.” Rinn v. Minn. State Agric. Soc’y, 611 N.W.2d 361, 365 (Minn. Ct. App. 2000).

Here, the first two injuries were similar to Anderson’s and occurred earlier, but neither injury report mentioned a rock in the pit, only that the injured participant “landed wrong” or “jumped into … uneven terrain.” The other three injuries, including Anderson’s, occurred between 1:00-1:30pm. The injury reports reported there was a rock in the pit, but Rugged Races was not made aware of these reports in time to put it on notice that preventive action might be needed. See
Otis v. First Nat’l Bank of Minneapolis, 292 Minn. 497, 195 N.W.2d 432, 433 (1972) (no actual or constructive notice when hazard only present for 20 minutes). Because “an act or omission is not negligent unless the actor had knowledge or notice that it involves danger to another,” Rugged Races’ failure to remove the rock from the landing pit before Anderson’s injury is not a sufficient showing of greater-than-ordinary negligence. Rue v. Wendland, 226 Minn. 449, 33 N.W.2d 593, 595 (1948). And given the nature of the obstacle and the evidence of Rugged Races’ careful inspection procedures when creating the obstacle, the record does not provide sufficient evidence that any uneven terrain in the landing pit was the product of greater-than-ordinary negligence.

Finally, Anderson argues that Rugged Races failed to maintain the water level in the Bang the Gong pit to the depth required by its protocol, a further example of greater-than-ordinary negligence. The district court declined to consider this issue because Anderson first raised it at the summary judgment hearing. 496 F. Supp. 3d at 1285 n.11. As Anderson “did not sufficiently present [the] argument” to the district court, we will not consider it on appeal. Cole v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., 533 F.3d 932, 936 (8th Cir. 2008).

III. Conclusion

In summary, our careful review of the record confirms the district court did not err in concluding Anderson failed to establish greater-than-ordinary negligence as a matter of law. Accordingly, her negligence claims are waived by the valid and enforceable exculpatory clause in the Race Participant Agreement. The judgment of the district court is affirmed.

——–

Notes:

1 The Honorable Patrick J. Schiltz, now Chief Judge of the United States District Court for the District of Minnesota

2 Defendants also argue (i) Anderson waived any claim based on greater-than-ordinary negligence by alleging only gross negligence in her Complaint; and (ii) Anderson’s claims are barred by the Minnesota doctrine of primary assumption of the risk. Given our resolution of Anderson’s appeal, we need not consider these issues.

3 Though there was no physical evidence of a submerged rock in the landing pit, Anderson and the other injured participants described “feeling a rock or similar object” when they landed. In ruling on defendants’ motion for summary judgment, the district court properly concluded it “therefore must assume that a rock was present in the landing pit of Bang the Gong.” Anderson, 496 F. Supp. 3d at 1278 n.7.

4 The district court estimated 1:00pm “based on the fact that Anderson did not report her injury until 1:15 pm, after she had hurt her foot, crawled out of the pit, reported her need for medical attention, waited for a medic to arrive, and been transported to the medical tent.” Anderson, 496 F. Supp. 3d at 1275 n.4.

@2023 Summit Magic Publishing, LLC

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Sloppy but still lucky? Obstacle course avoids lawsuit with release, however, it was close

Posted: May 8, 2023 | Author: Recreation Law | Filed under: Minnesota, Racing, Release (pre-injury contract not to sue) | Tags: Assumption of Risk Doctrine, assumption of the risk, Minnesota, Obstacle Course, Obstacle course racing, Reasonably Safe Course, Release, Unreasonable Risk of Harm, Waiver | Leave a comment

When the defendant learned of a problem was a critical part of winning this case.

Anderson v. Rugged Races, LLC, 42 F.4th 955 (8th Cir. 2022)

State: Minnesota; United States Court of Appeals, Eighth Circuit

Plaintiff: Jeanne Anderson

Defendant: Rugged Races, LLC; Dennis Raedeke, Inc., doing business as Wild Mountain Recreation Area

Plaintiff Claims: (i) that defendants had duties to design and construct a reasonably safe course, maintain the course in a safe condition, inspect the course for unreasonable risks of harm, warn race participants of unreasonable risks, supervise parties responsible for performing those duties, and operate and maintain the course to ensure participants were not exposed to unreasonable risks; and (ii) that defendants were grossly negligent in failing to perform each of these duties.

Defendant Defenses: Release, Assumption of the Risk

Holding: For the Defendant

Year: 2022

Summary

A release signed by a participant in an obstacle course race was sufficient to defeat her claim that the defendant builder and operator of the race were negligent. Minnesota does not allow claims for greater than ordinary negligence; however, whether the defendant was guilty of such acts was also examined.

Facts

Since 2010, Rugged Races has planned hundreds of obstacle races around the country, including Rugged Maniac Twin Cities. The events feature an obstacle course with a series of challenges involving barbed wire, fire, water, and mud, followed by a post-race party. When Anderson registered for the 2016 Twin Cities event, she signed a Race Participant Agreement (the Agreement). In Part III of the Agreement, titled Assumption of Inherent Risks , Anderson acknowledged:

In Part IV, titled Waiver of Liability for Ordinary Negligence , Anderson waived and discharged both Rugged Races and Wild Mountain “from any and all claims resulting from the INHERENT RISKS of the Event or the ORDINARY NEGLIGENCE of Rugged Races LLC (or other Released Parties).” Anderson again signed the Agreement when she checked in on race day.

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

This was an obstacle race. The defendant reached “Bang the Gong” where she climbed up a man-made platform and jumped into a muddy pit of water. Her foot hit something shattering her heel. She sued. The federal district court granted the defendants motion for summary judgment, and this was the appeal of that judgment.

Minnesota does not recognize gross negligence. Meaning if you sue there is no hierarchy of types of negligence that void releases or get you additional damages. According to Minnesota law, negligence is defined as:

…ordinary negligence” is the “failure to exercise such care as persons of ordinary prudence usually exercise under such circumstances.” Gross negligence is “substantially and appreciably higher in magnitude than ordinary negligence … [and is] the absence of slight diligence, or the want of even scant care.”

Minnesota law imposes on defendants as the landowner and operator of a for-profit recreational activity a duty to exercise a “high degree of care” to ensure that invitees are not exposed to unreasonable risks of harm.

This was an issue because the plaintiff argued the defendant had participated in greater than ordinary negligence in the construction of the Bong the Gong. Even though Minnesota does not recognize greater than ordinary negligence, the appellate court found the standard of care to be applied in this case was based on greater than ordinary negligence.

First, the “ordinary negligence” clause in the Agreement is less, or at least no more ambiguous than the exculpatory clause held to be un ambiguous (the term “all acts of active or passive negligence … specifically purports to exonerate Spa Petite from liability for acts of negligence and negligence only”). Second, when the duty to exercise this high degree of care applies, it is an ordinary negligence duty to exercise “reasonable care, meaning care commensurate with the risks involved.” Thus, that the waiver of claims for “ordinary negligence” includes this type of duty for landowners and for-profit operators does not make the waiver ambiguous. We agree with the district court that the Agreement’s exculpatory clause is unambiguously limited to ordinary negligence. As in Beehner, Anderson was a voluntary participant in a recreational activity that does not “implicate[ ] a public or essential service.”

Then the appellate court started dissecting the arguments. The Bong the Gong structure was not a new structure; it had been used in races for several years. The plaintiff also argued the landing pit needed to be deeper so the plaintiff would not strike bottom. Because a thousand of participants in this race and thousands more in other races had not been injured the court did not buy into this argument.

However, Bang the Gong was not a new obstacle for the 2016 Rugged Maniac race. Rather it was tested, used in multiple previous events, and modeled on an earlier obstacle that was safely used for years. We agree with the district court that “[t]he fact that thousands of participants — many of whom undoubtedly outweighed Anderson — jumped into the landing pit without incident is compelling evidence that the water level was not unreasonably low.”

The defendant had a detailed protocol for building the structure and digging the pit which it had followed in this race.

Rugged Races followed a detailed protocol when constructing Bang the Gong for this and other events, described in deposition testimony by Rugged Races’ Senior Vice President, Bradford Scudder, and a construction crew member from the 2016 race, Christian Melnik. The process involved digging a pit, removing debris, lining the pit with a tarp, filling it with water, and then constructing the platform participants would use to jump into the pit. The protocol requires crew members to inspect the pit three separate times before it is filled to ensure no rocks, roots, or other debris are present. They conduct two subsequent visual inspections after the pit is filled, including on the morning of the race.

This proved that the defendant had followed its established routine in creating the obstacle, which could have been introduced at trial.

The court then agreed with the district court that the plaintiff had failed to introduce evidence to prove actions on the part of the defendant were anything but ordinary negligence.

Because the injuries that occurred prior to the plaintiff’s injuries were not described in a way that would have put the defendant on notice of a problem that the plaintiff suffered and the injuries that occurred after the time the plaintiff was injured would not have mattered, the court found the plaintiff had failed to prove the defendant acted in any way that would give rise to more than ordinary negligence.

Applying the standard of care of a landowner under Minnesota law, landowners are not insurers of the safety of their patrons, (parties on their land), unless they dangerous condition resulted from the direct action of the landowner.

Under Minnesota law, landowners are not “insurers of safety of their patrons.” “Unless the dangerous condition actually resulted from the direct actions of a landowner or his or her employees, a negligence theory of recovery is appropriate only where the landowner had actual or constructive knowledge of the dangerous condition.”

Because the defendant had no knowledge of the issues until the plaintiff was injured, the defendant could not be held to a higher degree of negligence, negligence and thus the release stopped the plaintiff claims.

Because “an act or omission is not negligent unless the actor had knowledge or notice that it involves danger to another,” Rugged Races’ failure to remove the rock from the landing pit before Anderson’s injury is not a sufficient showing of greater-than-ordinary negligence.

So Now What?

This is a confusing case because Minnesota does not support claims for greater than ordinary negligence, but this court worked hard to make sure it was not an issue. What does come from the case is the general support that releases are valid in Minnesota.

Even though Minnesota has held that a parent could sign away a minor’s right to sue, the courts had also found ways to invalidate releases. See Minnesota decision upholds parent’s right to sign away a minor’s right to sue (Moore v. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299).

For other cases about Minnesota release law see:

Assumption of Risk used to defend against claim for injury from snow tubing in Minnesota

Federal court holds that under Minnesota law, a release signed at a ski area did not violate MN Public Policy

Minnesota Appellate court upholds a release signed by a mother for a child’s injuries

Plaintiff argues under Minnesota law, the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area

Plaintiff argues under Minnesota law, the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.

For other states that allow a parent to sign away a minor’s right to sue see:

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

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

What do you think? Leave a comment.

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

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

@2023 Summit Magic Publishing, LLC

G-YQ06K3L262

Massachusetts accepts releases and in this case, there was no argument about the validity of the release.

Posted: May 1, 2023 | Author: Recreation Law | Filed under: Massachusetts, Release (pre-injury contract not to sue), Sports | Tags: Batter, Gross negligence, Massachusetts, recklessness, Release, softball, student athlete | Leave a comment

College softball player struck in the head during batting practice. No negligence because a release stopped simple negligence claims and there was no proof of gross negligence.

Brandt v. Davis, 98 Mass. App. Ct. 734, 159 N.E.3d 191 (Mass. App. 2020)

State: Massachusetts: Appeals Court of Massachusetts, Suffolk

Plaintiff: Brooke A. Brandt

Defendant: Jaclyn Davis & others

Plaintiff Claims: negligence, gross negligence, and recklessness

Defendant Defenses: Release and no duty

Holding: For the Defendants

Year: 2020

Summary

Massachusetts law allows a trial court to dismiss a case when a release is used, and the pleadings do not have the facts necessary to prove reckless conduct or gross negligence on the part of the defendant.

In this case, a batter, the coaches and a university were not liable for the injuries of a player when she walked into the range of a batter.

Facts

The plaintiff played softball as a member of the Suffolk University women’s team, a National Collegiate Athletic Association Division III team. As a condition of her participation on the team, the plaintiff signed a participant waiver and release of liability form. The waiver released Suffolk University and its employees and agents from liability for any claims arising from her participation in the athletic program to the extent “permitted by the law of the Commonwealth of Massachusetts.”

On the day of the accident, the team was practicing in an indoor practice facility. The team engaged in the same general pattern of activities during practices. After warming-up, the team would leave the playing area to get their equipment, and then meet on the field. The players had to leave the playing area to get their equipment, because they hung their equipment outside the playing area on a fence. During their practices, the players would run through a series of rotating stations to develop different skills, each requiring different personal equipment. Before the players began their next station, the head coach would say “go” when she was sure everyone was in position and wearing the proper equipment.

Typically, the batting tees would be set up in batting cages, but they were not on the day of the accident. Moveable screens were available to use as protective barriers, but there was no such barrier between the tees and the field entrance on the day of the accident.

At one of the practice stations, players practiced hitting balls off tees into the netting surrounding the field. The tees were placed off to one side of an opening in the netting, which is where players would enter the area. A portable divider was placed on the opposite side of the opening to separate this station from the live hitting station. The players rotated among stations at the direction of the coaches, and were given between two and five minutes to transition before the coaching staff signaled them to start.

During the March 7, 2014, practice, when it was time for the plaintiff to rotate to the live hitting station, she left the field to retrieve her batting helmet and began jogging back with her helmet in her hand. The plaintiff testified in a deposition that she had to go retrieve her batting equipment, because her first station had been fielding. The plaintiff was “moving quickly” to get back to her station.

When the plaintiff returned to the practice area, the teammate was practicing hitting at the “last tee near the door. [The teammate] was the last to get to [her] tee because of the additional time [she] spent practicing [her] footwork.” The teammate was a left-handed batter, and she chose the tee nearest to the door so that the right-handed players in the station would not be within her swinging radius.

In her deposition, the plaintiff testified that she saw that the teammate had a bat in her hand at the tee station and was preparing to bat. The teammate’s back was to the plaintiff when the plaintiff jogged back on the field. The plaintiff did not know whether the teammate could see her because the teammate’s batting helmet limited her peripheral vision. The plaintiff testified that she saw the teammate’s face, but could not say whether that was when she was leaving the field or upon reentering it. She “didn’t feel like [she] was going to get hit” when she ran behind the teammate.

The plaintiff testified that she yelled, “Wait.” However, she could not remember when she said wait or even whether she said it out loud. She admitted that it was possible that she “said wait only in [her] own head.”

The teammate testified in a deposition that she did not begin swinging until instructed to do so by her coaches, and an assistant coach testified that the players were already swinging before the accident. The teammate stated that she “always look[ed] around … before … every single swing.” She did not see the plaintiff.

After the teammate hit the ball off the tee, the teammate’s swing hit the plaintiff in the back of the head. As a result, the plaintiff suffered a concussion and required four stitches at a hospital. She was released from the emergency department the same evening. Because the plaintiff and the teammate were best friends, the teammate stayed with the plaintiff in her dormitory room the night of the accident. A few days later, however, it became evident that the plaintiff was suffering long-term effects from the accident, including difficulty reading.

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

The court only looked at whether the summary judgment was correct. The trial court found the plaintiff had not pled or proven any claims that would rise to the level of gross negligence or recklessness. The release was presumed valid and was enforced eliminating any basic claims.

The appellate court first looked at the duty owed by participants in athletic events. That means participants must refrain from reckless conduct. “As is well established, “participants in an athletic event owe a duty to other participants to refrain from reckless misconduct.””

This higher level of care is required because to have a lower standard of care would create litigation anytime players interacted physically. When one engages in a sport, one must accept the level of physical contact to be higher. Failure to do so takes the fun out of the play.

The court found that this same level of care or standard also applied to practices. If the players did not practice at a high level, they would not compete at a higher level.

…the Supreme Judicial Court determined that participants in an athletic event owe each other only a duty to avoid reckless conduct. The court did so because it was “wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition.”

The court then proceeded to exam the claims of the plaintiff that the conduct was reckless. Reckless conduct is one person knowing that their actions create a high degree of risk of physical harm and still proceeds to act.

The plaintiff has the burden to prove “the actor knows, or has reason to know … of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk.”

The court reviewed the facts and found there was no reckless conduct on the part of the teammate. The actions of the batter were such that there was no time from when she attempted to swing at the ball until when she made contact with the plaintiff to alter her actions. There was no knowledge of the high degree of physical harm because the batter did not know the plaintiff was behind her. And without that knowledge, there is no recklessness.

The final issue reviewed was whether to the coach, and the universities’ actions were grossly negligent or reckless. The plaintiff’s ordinary or simple negligence claims were barred by the release. Therefore, only the gross negligence claim remained against the university and coaches.

Massachusetts law defines gross negligence as:

“[G]ross negligence is substantially and appreciably higher in magnitude than ordinary negligence. … It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care” The ‘voluntary incurring of obvious risk’ and ‘persistence in a palpably negligent course of conduct over an appreciable period of time’ are among ‘the more common indicia of gross negligence.’ ”

“Gross negligence … is materially more want of care than constitutes simple inadvertence”

Recklessness in this context was defined as:

“[R]eckless conduct involves a degree of risk and a voluntary taking of that risk so marked that, compared to negligence, there is not just a difference in degree but also a difference in kind.”

For the coaches and thus their employer the university to be found liable, the coaches had to have known of the propensity of the batter to act reckless or with intent to harm.

“[I]n order to impose liability on a coach for the conduct of a player, there must be, at the least, evidence of ‘specific information about [the] player suggesting a propensity to engage in violent conduct, or some warning that [the] player … appeared headed toward such conduct as the game progressed.

The trial court and the appellate court found none of the facts necessary to apply either a reckless or gross negligence definition to the actions of the batter or the coaches. In fact, the court found just the opposite.

Here, there is no indication that the teammate intentionally struck the plaintiff or that the teammate had a history of reckless conduct. The plaintiff testified that she and the teammate were best friends, and that she did not think the teammate hit her on purpose.

So Now What?

In some states, releases are part of the law and are rarely challenged unless the release is poorly written. Because of that, colleges and universities are using release to stop claims by student athletes for their injuries.

However, several other courts have indicated they are not sure that releases are the way proceed fearing a release will allow the defendants not to keep their businesses as risk free as possible. It is a constantly changing legal landscape.

For other articles about student athletes see:

Release and assumption of the risk are both used to defeat a para-athlete’s claims when she collided with a runner on the cycling portion of the course

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.

For other articles about Massachusetts and releases see:

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

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

Releases work for exercise programs when a mall, for free, opens up early to help people age in Massachusetts

Duty of care for a Massachusetts campground is to warn of dangerous conditions.

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

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

Word Count: 166

What do you think? Leave a comment.

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

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

@2023 Summit Magic Publishing, LLC

G-YQ06K3L262

Brandt v. Davis, 98 Mass.App.Ct. 734, 159 N.E.3d 191 (Mass. App. 2020)

Posted: May 1, 2023 | Author: Recreation Law | Filed under: Massachusetts, Release (pre-injury contract not to sue), Sports | Tags: Gross negligence, Massachusetts, recklessness, Release, softball, student athlete, Suffolk University | Leave a comment

98 Mass.App.Ct. 734
159 N.E.3d 191

Brooke A. BRANDT
v.
Jaclyn DAVIS & others.1

No. 19-P-1189

Appeals Court of Massachusetts, Suffolk..

Argued May 22, 2020.
Decided November 2, 2020.

Robert A. Curley, Jr., Braintree, for the plaintiff.

Robert B. Smith, Boston, for Jaclyn Davis & another.

Paul F. Lynch, Boston, for Meredith Ball.

Present: Wolohojian, Maldonado, & Ditkoff, JJ.

DITKOFF, J.

[98 Mass.App.Ct. 734]

The plaintiff, Brooke A. Brandt, appeals from a summary judgment dismissing her complaint against her softball teammate, Meredith Ball (teammate), and Suffolk University and her softball head coach Jaclyn Davis (collectively, the Suffolk defendants), arising out of the plaintiff’s injuries sustained during softball practice. We conclude that, like players in an athletic contest, players in an athletic practice owe a duty not to engage in reckless conduct but are not subject to suit for simple negligence. Because of a waiver signed by the plaintiff, the Suffolk defendants are liable only for gross negligence or recklessness. Concluding that the summary judgment record did not raise a triable issue that either the teammate or the Suffolk defendants engaged in reckless conduct or gross negligence, we affirm.

1. Background. The plaintiff played softball as a member of the Suffolk University women’s team, a National Collegiate Athletic Association Division III team. As a condition of her participation on the team, the plaintiff signed a participant waiver and release of liability form. The waiver released Suffolk University and its employees and agents from liability for any claims arising from her participation in the athletic program to the extent “permitted by the law of the Commonwealth of Massachusetts.”

The plaintiff asserted claims against the teammate for negligence, gross negligence, and recklessness. The plaintiff asserted claims against the Suffolk defendants for gross negligence and recklessness. In a thoughtful decision, a Superior Court judge determined that the plaintiff needed to show recklessness on the part of the teammate to prevail. Concluding that the summary judgment record did not raise a triable issue of recklessness or gross negligence on the part of either the teammate or the Suffolk defendants, the judge granted summary judgment and dismissed the plaintiff’s complaint. This appeal followed.

2. Standard of review. “Our review of a motion judge’s decision on summary judgment is de novo, because we examine the same record and decide the same questions of law.” Boston Globe Media Partners, LLC v. Department of Criminal Justice Info. Servs., 484 Mass. 279, 286, 140 N.E.3d 923 (2020), quoting Kiribati Seafood Co. v. Dechert LLP, 478 Mass. 111, 116, 83 N.E.3d 798 (2017). “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.” Bank of N.Y. Mellon v. Morin, 96 Mass. App. Ct. 503, 506, 136 N.E.3d 396 (2019), quoting Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177, 37 N.E.3d 39 (2015). See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). “Usually, negligence and recklessness involve questions of fact left for the jury. … However, where no rational view of the evidence would permit a finding of negligence or recklessness, summary judgment is appropriate.” Borella v. Renfro, 96 Mass. App. Ct. 617, 622, 137 N.E.3d 431 (2019).

3. Claims against the teammate. a. Standard of care. As is well established, “participants in an athletic event owe a duty to other participants to refrain from reckless misconduct.” Borella, 96 Mass. App. Ct. at 622, 137 N.E.3d 431, quoting Gauvin v. Clark, 404 Mass. 450, 451, 537 N.E.2d 94 (1989). Accord Gray v. Giroux, 49 Mass. App. Ct. 436, 439, 730 N.E.2d 338 (2000) (“wilful, wanton, or reckless standard of conduct, and not ordinary negligence, is the appropriate standard of care in noncontact sports”). We must determine whether this standard, rather than the ordinary negligence standard, applies to participants in an athletic practice. “Whether a party owes a duty of care to another is a legal question, ‘determine[d] “by reference to existing social values and customs and appropriate social policy.” ‘ ” Williams v. Steward Health Care Sys., LLC, 480 Mass. 286, 290, 103 N.E.3d 1192 (2018), quoting Jupin v. Kask, 447 Mass. 141, 143, 849 N.E.2d 829 (2006). We conclude that the same level of duty — to refrain from reckless conduct — applies to athletic practices as well as to athletic contests.

In Gauvin, 404 Mass. at 454, 537 N.E.2d 94, the Supreme Judicial Court determined that participants in an athletic event owe each other only a duty to avoid reckless conduct. The court did so because it was “wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition.” Id. This standard “furthers the policy that ‘[v]igorous and active participation in sporting events should not be chilled by the threat of litigation.’ ” Id., quoting Kabella v. Bouschelle, 100 N.M. 461, 465, 672 P.2d 290 (1983).

The same reasoning applies to athletic practices. During such practices, players train to improve their competitive performance. Teammates often play against each other as though it is a game through scrimmages and other drills at practice. See Gauvin, 404 Mass. at 454, 537 N.E.2d 94 (“Players, when they engage in sport, agree to undergo some physical contacts which could amount to assault and battery absent the players’ consent”). Batting practice, for example, requires focus for players to increase the strength and accuracy of their swings. If the players could not practice as vigorously as they play, they would — at best — be unprepared for the challenges of actual competition. At worst, their inability to practice vigorously would expose them to an increased risk of injury during games, especially if they competed against out-of-State teams not so constrained. See Kavanagh v. Trustees of Boston Univ., 440 Mass. 195, 205, 795 N.E.2d 1170 (2003).

We find support for this conclusion in decisions in other States. In Bowman v. McNary, 853 N.E.2d 984, 991 (Ind. Ct. App. 2006), the Indiana Court of Appeals rejected the application of ordinary negligence to an injury caused by an errant swing during a practice for a high school golf team. See id. at 992 (“the rule applies to injuries sustained by any co-participants in a sporting activity, which would include teammates injured during a practice”).2 Moreover, other jurisdictions have applied the recklessness standard for noncontact or noncompetitive athletic activities. See, e.g., Ford v. Gouin, 3 Cal. 4th 339, 345, 11 Cal.Rptr.2d 30, 834 P.2d 724 (1992) (“the general rule limiting the duty of care of a coparticipant in active sports to the avoidance of intentional and reckless misconduct, applies to participants engaged in noncompetitive but active sports activity, such as a ski boat driver towing a water-skier”); Pressler v. U, 70 Ohio App. 3d 204, 205-206, 590 N.E.2d 873 (1990) (yacht race). Accord Ritchie-Gamester v. Berkley, 461 Mich. 73, 89, 597 N.W.2d 517 (1999) (declining to apply ordinary negligence where ice skater skated backwards into plaintiff).

b. Reckless conduct. “The imposition of tort liability for reckless disregard of safety can be based on either a subjective or objective standard for evaluating knowledge of the risk of harm.” Boyd v. National R.R. Passenger Corp., 446 Mass. 540, 546, 845 N.E.2d 356 (2006). The plaintiff has the burden to prove “the actor knows, or has reason to know … of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk.” Id. at 546-547, 845 N.E.2d 356, quoting Restatement (Second) of Torts § 500 comment a, at 588 (1965). We examine the record to determine whether there is evidence from which a jury could conclude that the teammate “engaged in extreme misconduct outside the range of the ordinary activity inherent in the sport.” Borella, 96 Mass. App. Ct. at 624, 137 N.E.3d 431. Viewing the summary judgment record in the light most favorable to the plaintiff, she had no reasonable expectation of proving that the teammate’s actions rose to this level of misconduct.

Contrary to the plaintiff’s claim, a jury could not find that the teammate saw the plaintiff before the injury with enough time to prevent the accident. The plaintiff jogged onto the field near where the teammate was preparing to bat. The plaintiff testified at a deposition that the teammate had her back to the entrance, and she wore a batting helmet that limited her peripheral vision. Although the players were supposed to look around before swinging, the plaintiff did not remember whether the teammate looked around. The plaintiff’s failure of memory in this regard does not directly contradict the teammate’s affirmative recollection that she looked around her before she swung the bat. See Gray, 49 Mass. App. Ct. at 440 n.4, 730 N.E.2d 338 (plaintiff’s assertion that golfer “could have and should have been able to see the plaintiff” did not rebut defendant’s deposition testimony that he did not see plaintiff). But even were we to assume that there was a sufficient factual dispute over whether the teammate looked before she swung, and that the plaintiff was “capable of being seen from at least the time she was passing by the chain link gate until she was hit” (as the plaintiff’s expert opined), there is no rational view of the evidence that the teammate in fact saw the plaintiff before the teammate swung the bat with enough time to prevent the accident. Accordingly, this scenario, as a matter of law, did not rise to the level of recklessness. See id. (golfer was not reckless where he did not see plaintiff before taking his shot and plaintiff was not in intended path of golfer’s shot); Bowman, 853 N.E.2d at 996-997 (plaintiff’s conduct was not reckless where she struck coparticipant with backswing without ascertaining coparticipant’s precise location during high school golf practice).

The plaintiff disputes that the coach had given the “go” signal for the teammate to begin batting. Viewing the evidence in favor of the nonmoving party, even if the teammate swung her bat before the coach told players to start, the teammate’s actions were at most negligent. The plaintiff was a collegiate softball player who had played for fourteen years at the time of her injury. The plaintiff acknowledged that the coaches did “not necessarily hav[e] to micromanage every part” of the practice, and players could begin practicing at their station before the coach said “go.” Based on the players’ experience and skill level, this conduct, as a matter of law, was not reckless. See Borella, 96 Mass. App. Ct. at 624, 137 N.E.3d 431.

The plaintiff claims she said “wait” before the incident. In her deposition, however, the plaintiff did not remember whether she said “wait” out loud or in her head. She did not remember her exact location when she said “wait,” the timing of when she said it, or how loudly she said it. Indeed, the plaintiff stated that she yelled “wait” “almost immediately” before she was struck. Accordingly, there was no evidence that the teammate could or did hear the plaintiff say “wait” before the teammate swung her bat, let alone in enough time to stop her swing. Indeed, the teammate testified in her deposition that she did not hear the plaintiff say anything before the accident. The plaintiff had no reasonable expectation of proving recklessness from this evidence. See Patterson v. Liberty Mut. Ins. Co., 48 Mass. App. Ct. 586, 592, 723 N.E.2d 1005 (2000) (party “cannot prevail if any critical element is left to surmise, conjecture or speculation or otherwise lacks evidential support”).

4. Claims against the Suffolk defendants. Although a coach’s duty of care to opposing players is the same recklessness standard that applies to the players she coaches, Borella, 96 Mass. App. Ct. at 628, 137 N.E.3d 431, we assume without deciding that a coach ordinarily has a duty of ordinary reasonable care to her own players. See Kavanagh, 440 Mass. at 202, 795 N.E.2d 1170 (not reaching this question). Cf. Moose v. Massachusetts Inst. of Tech., 43 Mass. App. Ct. 420, 425, 683 N.E.2d 706 (1997) (university and coaches liable in negligence to injured pole vaulter for unsafe equipment and landing pit). Here, however, it is uncontested that Suffolk University had an enforceable liability waiver barring the plaintiff from bringing an ordinary negligence suit. See Rafferty v. Merck & Co., 479 Mass. 141, 155, 92 N.E.3d 1205 (2018), quoting Maryland Cas. Co. v. NSTAR Elec. Co., 471 Mass. 416, 422, 30 N.E.3d 105 (2015) (” ‘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”). Thus, we analyze the plaintiff’s claims only for gross negligence and recklessness.

a. Gross negligence. “[G]ross negligence is substantially and appreciably higher in magnitude than ordinary negligence. … It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care.” Parsons v. Ameri, 97 Mass. App. Ct. 96, 106, 142 N.E.3d 628 (2020), quoting Altman v. Aronson, 231 Mass. 588, 591-592, 121 N.E. 505 (1919). “The ‘voluntary incurring of obvious risk’ and ‘persistence in a palpably negligent course of conduct over an appreciable period of time’ are among ‘the more common indicia of gross negligence.’ ” Parsons, supra, quoting Lynch v. Springfield Safe Deposit & Trust Co., 294 Mass. 170, 172, 200 N.E. 914 (1936).

The plaintiff’s expert stated that the positioning of the tee station near the entrance enhanced the risk of serious danger for the players when there were safer alternative locations for the drill. The head coach gave the players approximately five minutes to transition. The head coach had no reason to believe that these trained collegiate athletes would enter the field while players were swinging their bats at the tee station. Based on the collegiate athletes’ knowledge and experience, the head coach’s assertedly inadequate planning makes out, at worst, only ordinary negligence. See Aleo v. SLB Toys USA, Inc., 466 Mass. 398, 410, 995 N.E.2d 740 (2013), quoting Altman, 231 Mass. at 591, 121 N.E. 505 (“Gross negligence … is materially more want of care than constitutes simple inadvertence”).3

It remains a contested fact whether the coach told the players to start their stations before everyone was in place.4 Taking all inferences in favor of the plaintiff, it was at most negligent for the head coach to have prematurely yelled “go” before all of the trained athletes were at their next station.

b. Recklessness. “[R]eckless conduct involves a degree of risk and a voluntary taking of that risk so marked that, compared to negligence, there is not just a difference in degree but also a difference in kind.” Gray, 49 Mass. App. Ct. at 440, 730 N.E.2d 338, quoting Sandler v. Commonwealth, 419 Mass. 334, 337, 644 N.E.2d 641 (1995). “[I]n order to impose liability on a coach for the conduct of a player, there must be, at the least, evidence of ‘specific information about [the] player suggesting a propensity to engage in violent conduct, or some warning that [the] player … appeared headed toward such conduct as the game progressed.’ ” Borella, 96 Mass. App. Ct. at 628, 137 N.E.3d 431, quoting Kavanagh, 440 Mass. at 203, 795 N.E.2d 1170. Here, there is no indication that the teammate intentionally struck the plaintiff or that the teammate had a history of reckless conduct. The plaintiff testified that she and the teammate were best friends, and that she did not think the teammate hit her on purpose. See Gray, supra. As a matter of law, there is no basis for a jury to find that the head coach acted recklessly in allowing the teammate to practice hitting off tees.

Judgment affirmed.

——–

Notes:

1 Meredith Ball and Suffolk University.

2 In Pfenning v. Lineman, 947 N.E.2d 392, 404 (Ind. 2011), the Supreme Court of Indiana took issue with some of the reasoning in Bowman, but ultimately approved of its conclusion that “intentional or reckless infliction of injury” is the proper standard.

3 Gross negligence, of course, takes into account the age, experience, and skill level of the players. A setup that is merely negligent for experienced collegiate athletes might well be grossly negligent for beginners or young children.

4 The teammate testified that she was told to start. The head coach said that she had already said “go.”

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Ski area defendant got caught falsifying employee records by the plaintiff.

Posted: April 24, 2023 | Author: Recreation Law | Filed under: Massachusetts, Ski Area, Skiing / Snow Boarding | Tags: Chairlift, Employee Training, fraud upon the court, lying to the court, Massachusetts, Wachusett Mountain Ski Area | Leave a comment

Wachusett Mountain Ski Area lied to the plaintiff about the training the employee in question in the lawsuit had received. The defendant ski area altered the records to make it look like the employee in question had received the requisite training when, in fact, he had not.

Hache v. Wachusett Mountain Ski Area, Inc., 99 Mass. App. Ct. 1126, 170 N.E.3d 345(Table) (Mass. App. 2021)

State: Massachusetts , Appeals Court of Massachusetts

Plaintiff: Heidi Hache & another (Individually and as parent and next friend of Alexander Hache)

Defendant: Wachusett Mountain Ski Area, Inc.

Plaintiff Claims: negligently operating its ski area, a posttrial motion for a finding of fraud on the court and imposition of sanctions, incorporating by reference her earlier cross motion seeking the same relief

Defendant Defenses: None

Holding: For the Plaintiff

Year: 2023

Summary

The defendant ski area at deposition testified the employee running the lift where the accident occurred had received the appropriate training in how to operate the lift. In fact, the employee had not. The ski area altered the training records, (online) to show the employee had taken the training course. Before trial, the plaintiff could prove the ski area had falsified to the plaintiff the documents and testimony the plaintiff had received during deposition. This appeal was to determine any punishment to the defendant ski area for falsifying those records.

Facts

The plaintiffs sued Wachusett for negligently operating its ski area, causing then twelve-year-old Alexander to fall from a ski lift and suffer severe and permanent injuries.

Wachusett produced documents and stated in its answers to interrogatories that the employee operating the lift on the day of the incident, Dylan Wilson, had received the requisite training. A training certificate produced by Wachusett stated that lift operator Wilson had completed an online training program under a profile with the username “jshepard.”

Heidi noticed a deposition of Wachusett and included a request for “[a]ny documents and [electronically stored information] relative to the identity of J. Shepard, his/her position at Wachusett Mountain and his/her involvement in any way with Dylan Wilson.” On June 2, 2017, Wachusett responded that Wachusett had no such documents in its present care, custody, or control.

Wachusett’s designee for the deposition of the corporation, Corey Feeley, testified to the following: Wilson was properly trained to operate the ski lift. Wilson had completed the training under the jshepard username because that username had been created for a prior hire, who had ultimately not become an employee, and Feeley did not want to pay another fifty-dollar license fee. Wilson completed the training in November 2014 even though he did not begin work until February 2015. Feeley and a human resources director, Molly Buckley, had been unable to locate an application for employment by Shepard.

After the Wachusett corporate deposition, Heidi subpoenaed training records from a third-party training website identified as Bullwheel and learned that jshepard was a boy named Jacob Shepard. On July 27, 2017, Heidi deposed Shepard. He testified that he worked at Wachusett starting in late 2013 through April 2014 and resuming in late 2014 and into 2015 and that he interacted with Feeley once or twice per shift. In November of 2014, Shepard completed the online training under the jshepard username. He also provided payroll records and emails to prove his employment at Wachusett.

Over a year later, on October 30, 2018, Heidi deposed Jonathan Putney, an employee of Noverant, Inc., the company hosting the online training program. The Noverant records showed that on March 11, 2015 — after the incident — a user named “cfeeley” had altered the jshepard profile to display the name Dylan Wilson. The Noverant records also showed that on the same date, a username of “dwilson” was created and that this username completed the training course between March 13 and March 16, 2015.

After considerable procedural skirmishing, Wachusett conceded liability and causation and sought to limit evidence of the fraud at trial. Heidi cross-moved for a finding that Wachusett committed fraud on the court based on the evidence discussed above. Heidi contended that Wachusett falsified an employee training record to conceal the lack of training, produced the falsified record in discovery, directed the plaintiffs to that falsified record in interrogatory responses, testified under oath to the authenticity of the training record in a deposition of the company pursuant to rule 30 (b) (6), and spoliated employment and payroll records to hide the fraud.

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

Don’t attempt to lie your way out of a lawsuit.

The defendant designated a person to speak on behalf of the defendant at a deposition. That person is called the deposition designee and legally speaks for the corporation. At the deposition of the designee, the designee testified the lift operator employee in question had received the designated training. That training was received under the name “jshepard.” The employee who was at issue in the trial was named “Dylan Wilson.” The deposition designee testified that to save $50 Dylan Wilson had taken the training under the name jshepard because jshepard had been hired but did not complete the training.

The plaintiff investigated and deposed two more people, jshepard and an employee of the online training program and found out that Dylan Wilson had never received the training that the ski area claimed he had received.

A year later, the ski area admitted the fraud and then admitted liability in an attempt to cover its mistakes. The plaintiff moved for sanctions against the ski area for the fraud; however, the judge denied the sanctions. After winning at trial, the plaintiff again moved for sanctions where were denied. The plaintiff appealed the issues of sanctions against the ski area to the appellate court.

Fraud on the court is an absolute no no. Attorneys can lose their license if they participate in a fraud upon the court. The party that commits the fraud can lose their lawsuit or win it based on who they are. It is never done.

Fraud on the court is defined in Massachusetts law as:

To find that a party has committed a fraud on the court, a judge must find “that a party has sentiently set-in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.”

The trial court found there had been no fraud on the court because the actions of the ski area were not perpetrated by the president of the ski area, the owner of the ski area or the attorney representing the ski area.

“no evidence before the court that Wachusett, its president/owner, or its attorney knew about the forged training records until Plaintiff’s counsel uncovered them in the course of discovery. There is also no evidence that they intentionally provided forged documents or intentionally gave false answers to questions posed in depositions. Rather, as soon as Wachusett became aware of Feeley’s misconduct, Wachusett conceded liability and gave up all efforts to assert comparative negligence despite the fact that this was a colorable defense. Thus, at no time was the court influenced by, or operating under false or fraudulent information.”

No hearing was held on the matter. Only written motions were filed and the judge ruled based on those motions.

The appellate court looked at the situation differently. The defendant by state law was required to keep employee records for all employees for four years. The ski area testified that it kept records normally for seven years. Although the ski blamed the fraud on the deposition designee, the court found that more than that one individual had failed to meet the requirements of the state law and the rules of civil procedure concerning the documents that had to be presented to the plaintiff by the defendant.

The trial judge found the actions of the defendant did not hamper the trial. However, the appellate court found the trial judge should have held a hearing and applied sanctions. The plaintiff worked for three years preparing for trial that was changed when the defendant admitted to the fraud. The defendant did not immediately admit to the fraud but waited more than a year to do so.

The plaintiffs thus prepared for trial for approximately three years with the understanding that they would be litigating every element of a negligence claim. While Wachusett ultimately conceded liability, the judge’s finding that it did so “as soon as [it] became aware of Feeley’s misconduct” is clearly erroneous. The plaintiffs deposed Feeley on June 9, 2017, and Shepard on July 27, 2017, but Wachusett did not make its first attempt to stipulate to liability for more than a year, until October 23, 2018, and even then continued to dispute causation.

Thus, the plaintiff expanded time and money proving its case, which has a cost. Because of that, the judge should have held an evidentiary hearing to determine the cost to the plaintiff and the actual issue of who perpetrated the fraud on the court.

The appellate court then sent the issue back to the trial court to have an evidentiary hearing on the issues and determine what if any monetary damages the ski area should pay for its actions.

So Now What?

Never lie to the court.

Lying to the court also includes lying to the other side in a deposition or in any evidence that is produced. Your actions in a trial, in everything you do to the opposing side are also to the court.

Never lie to the opposing side in litigation, it is the same as lying to the court.

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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

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New Jersey Supreme Court holds the Rescue Doctrine only applies to rescuing people and not property unless rescuing the property saves people.

Posted: April 24, 2023 | Author: Recreation Law | Filed under: Assumption of the Risk, New Jersey, Search and Rescue (SAR) | Tags: New Jersey, New Jersey Supreme Court, Person in Peril, Rescue Doctrine, Supreme Court of New Jersey | Leave a comment

Family sues after wife is injured attempting to rescue neighbor’s dog. Supreme court holds rescuing a dog does not qualify under the rescue doctrine.

Samolyk v. Berthe (N.J. 2022)

State: New Jersey; Supreme Court of New Jersey

Plaintiff: Ann Samolyk and John Samolyk

Defendant: Dorothy Berthe, III, Defendant, and Ilona Destefanis and Robert Destefanis

Plaintiff Claims: Rescue Doctrine

Defendant Defenses:

Holding: For the Defendants

Year: 2022

Summary

The rescue doctrine in New Jersey can only be used to recover for injuries sustained when rescuing a person. Rescuing property, in this case a dog, does not apply.

Facts

This matter arises from injuries sustained by plaintiff Ann Samolyk while trying to rescue a dog owned by defendants Ilona and Robert DeStefanis. Ann’s[1] husband, John Samolyk, filed a civil action against defendants, as Ann’s guardian ad litem, alleging defendants were liable under the rescue doctrine by negligently allowing their dog to fall or jump into the canal that borders their property, prompting Ann to dive into the water to prevent the dog from drowning. The complaint also included a per quod claim by John seeking compensation for any loss or impairment of his spouse’s services, society, and companionship due to injuries Ann sustained as a proximate result of defendants’ negligence.

The parties are neighbors in Forked River, an unincorporated bayfront community within Lacey Township. Their homes are situated on a canal. In the evening of July 13, 2017, defendants’ dog fell or jumped into the canal that snakes around the rear area of this shore community. Ann claimed she heard someone calling for help to rescue their dog that had fallen into the canal.[2] A report filed by a Lacey police officer describes the incident as “a report of a dog swimming in the lagoon.” The report states that Ann “entered the lagoon to rescue the dog.” The dog “was removed from the lagoon,” without any apparent harm, by defendants’ son and a family friend. Regrettably, Ann was found “unconscious on a floating dock.” In response to defendants’ interrogatories, plaintiffs allege Ann sustained neurological and cognitive injuries as a result of the incident.

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

The basic claim of the plaintiff was

“Plaintiffs’ counsel argued that defendants “invited the rescue because the dog was in peril, . . . [and Ann] would not [have] jump[ed] in the lagoon and [nearly] drown[ed] but for the dog being in there and people screaming about having to rescue the dog.”

The rescue doctrine allows an injured rescuer to recover damages from the person who placed another in peril or placed themselves in peril.

The rescue doctrine established in Wagner was originally limited to situations “where three persons are involved, i.e., one party by his culpable act has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his aid.” New York courts later expanded the rescue doctrine “to encompass a two-party situation where the culpable party has placed himself in a perilous position which invites rescue.”

The New Jersey Supreme Court found the claims of the plaintiff wanted to expand the rescue doctrine to the injuries received from rescuing property.

In this appeal, we are asked to expand the scope of the rescue doctrine to include those who voluntarily choose to expose themselves to significant danger in an effort to safeguard the property of another. We decline to modify the rescue doctrine to incorporate such a far-reaching departure from the fundamental principles embedded in Wagner.

Several states have expanded the rescue doctrine to cover property; however, the NJ Supreme Court declined to extend the doctrine in New Jersey. Unless the property being rescued would result in saving a human life, the rescue doctrine could not be used to recover for injuries of the rescuer.

Against this analytical backdrop, we decline to expand the rescue doctrine to include injuries sustained to protect property, except in settings in which the plaintiff has acted to shield human life.

The court then wrote an example of how the rescue doctrine could be used in a case like this.

Following that line of reasoning, plaintiffs’ cause of action would have survived a motion for summary judgment had she jumped into the canal after defendants’ dog as a simultaneous reaction to seeing a child of tender years running after the animal and quickly approaching the edge of the dock. In that hypothetical situation, Ann’s actions to protect the child from imminent danger by rescuing the dog may have been reasonable and could therefore have served as the basis for a cognizable cause of action under the rescue doctrine.

Here the sole cause of the plaintiff’s injuries came from her desire to rescue property, a dog.

By contrast, the uncontested evidence here shows that Ann’s actions were based solely on her perception of danger to the dog’s life. These nuanced distinctions are intended to acknowledge and reaffirm the public policy underpinning the rescue doctrine in our state, to wit, the protection of human life. Thus, plaintiffs’ complaint was properly dismissed because Ann’s decision to jump into the canal to save the dog’s life does not give rise to a cognizable claim under the rescue doctrine.

So Now What?

The rescue doctrine started out, as stated above that someone who rescued someone who had been placed in peril by another could recover for their injuries from the party at fault, the party that placed the person in peril.

The doctrine has expanded from what once was an attempt to punish those who created problems and reward those who solved the problem to providing money to someone who tried to help.

The rescue doctrine does not apply to commercial guides and outfitters because they have a higher duty to keep their customers safe and as such, no matter how the person came to be in peril; it is the fault of the outfitter or guide and their responsibility to rescue them.

The rescue doctrine is interpreted differently in every state, so make sure you understand it before you attempt to recover for your injuries.

Other cases that talk about the Rescue Doctrine see:

Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota http://rec-law.us/1HCQ0Px

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here.

What do you think? Leave a comment.

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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Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

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Hache v. Wachusett Mountain Ski Area, Inc., 99 Mass.App.Ct. 1126, 170 N.E.3d 345(Table) (Mass. App. 2021)

Posted: April 24, 2023 | Author: Recreation Law | Filed under: Massachusetts, Ski Area, Skiing / Snow Boarding | Tags: Chair Lift, deposition designee, Fraud, fraud upon the court, Lift Accident, lying to the court, Massachusetts, Wachusett Mountain, Wachusett Mountain Ski Area | Leave a comment

99 Mass.App.Ct. 1126
170 N.E.3d 345 (Table)

Heidi HACHE ¹ & another²

v.
WACHUSETT MOUNTAIN SKI AREA, INC.

20-P-455

Appeals Court of Massachusetts.

Entered: May 24, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Heidi Hache, individually and as next friend of her son Alexander Hache, appeals from an order denying her motion for a finding that Wachusett Mountain Ski Area, Inc. (Wachusett), committed fraud on the court and for sanctions, and from an order denying her motion for an increased rate of interest, attorney’s fees, and costs under G. L. c. 231, § 6F. We vacate the order denying the motion for a finding of fraud on the court and remand that matter for an evidentiary hearing.

Background. The plaintiffs sued Wachusett for negligently operating its ski area, causing then twelve year old Alexander to fall from a ski lift and suffer severe and permanent injuries.⁴

1. Falsified evidence. Wachusett produced documents and stated in its answers to interrogatories that the employee operating the lift on the day of the incident, Dylan Wilson, had received the requisite training pursuant to 526 Code Mass. Regs. § 10.09.⁵ A training certificate produced by Wachusett stated that lift operator Wilson had completed an online training program under a profile with the username “jshepard.”

Heidi noticed a deposition of Wachusett pursuant to Mass. R. Civ. P. 30 (b) (6), 365 Mass. 780 (1974) ( rule 30 [b] [6]), and included a request for “[a]ny documents and [electronically stored information] relative to the identity of J. Shepard, his/her position at Wachusett Mountain and his/her involvement in any way with Dylan Wilson.” On June 2, 2017, Wachusett responded that Wachusett had no such documents in its present care, custody, or control.

Wachusett’s designee for the deposition of the corporation, Corey Feeley, testified to the following: Wilson was properly trained to operate the ski lift. Wilson had completed the training under the jshepard username because that username had been created for a prior hire, who had ultimately not become an employee, and Feeley did not want to pay another fifty dollar license fee. Wilson completed the training in November 2014 even though he did not begin work until February 2015. Feeley and a human resources director, Molly Buckley, had been unable to locate an application for employment by Shepard.⁶

After the Wachusett corporate deposition, Heidi subpoenaed training records from a third party training website identified as Bullwheel and learned that jshepard was a boy named Jacob Shepard. On July 27, 2017, Heidi deposed Shepard. He testified that he worked at Wachusett starting in late 2013 through April 2014 and resuming in late 2014 and into 2015 and that he interacted with Feeley once or twice per shift. In November of 2014, Shepard completed the online training under the jshepard username. He also provided payroll records and emails to prove his employment at Wachusett.

2. Procedural background. After considerable procedural skirmishing, Wachusett conceded liability and causation and sought to limit evidence of the fraud at trial. Heidi cross-moved for a finding that Wachusett committed fraud on the court based on the evidence discussed above. Heidi contended that Wachusett falsified an employee training record to conceal the lack of training, produced the falsified record in discovery, directed the plaintiffs to that falsified record in interrogatory responses, testified under oath to the authenticity of the training record in a deposition of the company pursuant to rule 30 (b) (6), and spoliated employment and payroll records to hide the fraud.

The judge ruled on Heidi’s motion for a finding of fraud on the court as follows:

“The court will not permit the introduction of evidence of fraud to the extent that it only relates to proof of liability. However, if the proffered evidence becomes relevant on an issue relating to damages or the credibly of a witness, the court will consider the admissibility of that evidence at trial. Plaintiffs’ cross motion is otherwise deferred until after trial.”

After a trial on the issue of damages, the jury returned a verdict for the plaintiffs in the amount of $3,275,000. Judgment in the amount of $4,560,105.20 entered on July 18, 2019.

Fourteen days after the entry of judgment, Heidi served a posttrial motion for a finding of fraud on the court and imposition of sanctions, incorporating by reference her earlier cross motion seeking the same relief. She also moved for attorney’s fees and other relief under G. L. c. 231, § 6F. The judge held a nonevidentiary hearing on the motions, at which she asked Heidi’s counsel whether he wanted an evidentiary hearing, to which he responded, “I’m happy to present evidence.” After consideration of written submissions and the trial,7 on January 29, 2020, the judge denied the motions, finding “no evidence that Wachusett management, including the president and owner of Wachusett, Crowley, or Wachusett’s attorneys, knew about the falsified records or the lack of training the [p]laintiff uncovered it.”

On appeal, Heidi requests that we overturn the orders and enter a finding that Wachusett committed a fraud on the court; impose an increased rate of prejudgment interest of eighteen percent on the jury’s verdict from July 18, 2016, to the date the judgment was paid; and award her attorney’s fees of $78,547.50 and costs in the amount of $2,963.28 associated with the cost of discovering the fraud.

Discussion. 1. Standing. As an initial matter, Wachusett argues that Heidi does not have standing to appeal from the judge’s denial of her motion for a finding of fraud on the court. Wachusett argues that Heidi was not harmed by the denial of her motion because Wachusett conceded liability and causation and recovered a multimillion dollar judgment. Similarly, in denying Heidi’s motion, the judge relied on the fact that the jury returned a “substantial verdict” for the plaintiffs.

We conclude that Heidi has standing to challenge the order denying her motion for a finding of fraud on the court. The jury verdict was for compensatory damages only, which “are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant’s wrongful conduct” (citation omitted). Aleo v. SLB Toys USA, Inc., 466 Mass. 398, 412 (2013). In contrast, sanctions for fraud on the court are intended to “deter[ ] such activity” and to “protect the integrity of the pending litigation and the [court].” Munshani v. Signal Lake Venture Fund II, LP, 60 Mass. App. Ct. 714, 721 (2004). Persons who “have themselves suffered, or who are in danger of suffering, legal harm” have standing to challenge injuries that are a “direct consequence of the complained of action.” Ginther v. Commissioner of Ins., 427 Mass. 319, 322-323 (1998). A decision on the issue of fraud on the court, if it did occur, can itself have a deterrent effect. In addition, the potential remedy for fraud on the court may or may not be different than the remedy obtained through the stipulations Wachusett imposed on itself and the subsequent jury verdict and, as discussed in detail below, Heidi seeks compensation for the alleged fraud based on her fees and costs incurred and to deter such future conduct.

2. Timeliness. Wachusett argues that Heidi’s motion for a finding of fraud on the court was untimely under rule 59 (e) and improper under rule 60 (b) of the Massachusetts Rules of Civil Procedure and the appeal from the order denying that motion therefore “fails.” See Mass. R. Civ. P. 59 (e) (rule 59 ), 60 (b) ( rule 60 ), 365 Mass. 827 (1974). Heidi’s posttrial motion, however, relied on neither rule 59 nor rule 60 and indeed stated that she was not seeking to set aside the judgment under rule 60. At the time Heidi filed the posttrial motion for a finding of fraud on the court, the judge had deferred a final ruling on the pretrial cross motion and Heidi incorporated that motion in her postjudgment motion. Thus her motion was timely. See Krutiak v. Cheshire, 71 Mass. App. Ct. 387, 391-392 (2008) (prejudgment motion, objection during trial, and requested instruction sufficient to preserve appellate review of sufficiency of evidence even where party did not file rule 59 motion). We therefore conclude that the issue was properly preserved.

Nor is there an issue because the plaintiff did not appeal from the judgment. “A question remaining to be decided after an order ending litigation on the merits does not prevent finality if its resolution will not alter the order or moot or reverse decisions embodied in the order.” Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199 (1988). See Farnum v. Mesiti Dev., 68 Mass. App. Ct. 419, 423-424 (2007) (motion for attorney’s fees is collateral matter not affecting underlying judgment).8 We now turn to the merits of the appeal.

3. Fraud on the court. a. Standard of review. Heidi asserts that the judge’s finding that Wachusett did not commit a fraud on the court should be reviewed de novo. We do not agree. To find that a party has committed a fraud on the court, a judge must find “that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.” Rockdale Mgt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598 (1994), quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989). The question whether a party has committed a fraud on the court “is a case-by-case, fact-specific determination.” Rockdale, supra at 599. We therefore review for clear error or an abuse of discretion. See Munshani, 60 Mass. App. Ct. at 717-718 (discussing whether “findings” regarding fraud on court were “clearly erroneous”). See also Pina v. McGill Dev. Corp., 388 Mass. 159, 166-167 (1983) (holding no abuse of discretion in denying motion alleging fraud on court).

b. Sufficiency of evidence of fraud on the court. In her denial of Heidi’s posttrial motion for a finding of fraud on the court, the judge concluded that there was:

Without an evidentiary hearing, the judge was in no position to make these findings and, in that sense, the findings were insufficiently supported and clearly erroneous. Accordingly, we vacate the order and remand the matter for an evidentiary hearing.

There is no dispute that Feeley falsified the online training records to make it appear that the lift operator had been properly trained. The issue for resolution of the motion is whether the conduct could be attributed to Crowley, the president of the company, or the company itself. Without hearing evidence on this issue, it was clearly erroneous to find that neither Wachusett nor its officers knew of the fraudulent documents.

Certainly, Feeley was the company’s rule 30 (b) (6) designee for deposition and the general rule is that “[t]he testimony provided by the corporate representative at a Rule 30 (b) (6) deposition binds the corporation” (citation omitted). See Gleason v. Source Perrier, S.A., 28 Mass. App. Ct. 561, 569 (1990) (where employee not designated for rule 30 [b] [6] deposition, deposition testimony could not bind corporation). But that is not all. This does not address the fact that Wachusett maintained that it had no “documents and [electronically stored information] relative to the identity of J. Shepard, his/her position at Wachusett Mountain and his/her involvement in any way with Dylan Wilson.” Wachusett had a statutory and regulatory duty to keep Shepard’s payroll and employment records for four years. See G. L. c. 151A, § 45 ; 430 Code Mass. Regs. § 5.01(1), (3). Feeley testified that it was common practice within human resources at Wachusett to keep such records for seven years. An evidentiary hearing will allow a determination as to why Wachusett did not have the records that it was required by law to keep. Feeley, the corporate deponent on whom Wachusett blames the majority of the misconduct in falsifying the training records, did not work in the payroll department and the judge’s decision on the motion made no findings about why relevant records were never produced or if they were intentionally withheld or destroyed. Three Wachusett employees — Feeley, Baker, and Buckley — either testified to not knowing Shepard or were responsible for maintaining records about him and did not produce them. The judge also does not appear to have considered how the failure to produce these records may have prejudiced the plaintiffs, who were forced, at the very least, to subpoena and depose three third parties to investigate the identity of jshepard and uncover the falsified evidence.

While conduct “such as nondisclosure to the adverse party or the court of facts pertinent to the matter before it, without more, does not constitute fraud on the court,” Sahin v. Sahin, 435 Mass. 396, 406 (2001), fraud on the court is a “case-by-case, fact-specific determination,” Rockdale, 418 Mass. at 599. Here, the plaintiffs presented evidence of false testimony; tampered with the online training program records; and, at least, failed to comply with records retention laws, and at most, destroyed such records.

The judge also found that there was no evidence that Wachusett’s conduct hampered the judicial process. However, fraud on the court may also be found in cases where, “a party has sentiently set in motion some unconscionable scheme … unfairly hampering the presentation of the opposing party’s claim or defense” (citation omitted). Sahin, 435 Mass. at 405-406. Wachusett denied negligence from June 6, 2016, the date its answer was filed, until June of 2019. The plaintiffs thus prepared for trial for approximately three years with the understanding that they would be litigating every element of a negligence claim. While Wachusett ultimately conceded liability, the judge’s finding that it did so “as soon as [it] became aware of Feeley’s misconduct” is clearly erroneous. The plaintiffs deposed Feeley on June 9, 2017, and Shepard on July 27, 2017, but Wachusett did not make its first attempt to stipulate to liability for more than a year, until October 23, 2018, and even then continued to dispute causation.

On the record before us, then, the plaintiffs presented sufficient factual issues such that it was an abuse of discretion not to hold an evidentiary hearing on Heidi’s motion for a finding of fraud on the court to determine how this one employee allegedly was single-handedly at fault for falsifying the training records and not producing employment records Wachusett should have had.9

Heidi also requests that we impose sanctions — specifically an increased rate of interest on the judgment and attorney’s fees and costs — on Wachusett for the alleged fraud on the court. We are aware of no authority, nor does Heidi cite any, that allows us to set such a sanction, let alone to do so in the first instance. We decline to do so.

4. General Laws c. 231, § 6F. After trial, Heidi also filed a G. L. c. 231, § 6F, motion in the Superior Court for an increased rate of interest on the judgment, attorney’s fees, and costs. The appeal from the order denying this motion is not properly before us because G. L. c. 231, § 6G, requires that such an appeal be to a single justice of this court.10 See G. L. c. 231, §§ 6F, 6G. See also Bailey v. Shriberg, 31 Mass. App. Ct. 277, 282-283 (1991) (“the statute contemplates two separate appeals, one from the judgment, which goes to a panel of this court or the Supreme Judicial Court, and one from the award of attorney’s fees under § 6F, which follows the separate route described above…. A panel has no jurisdiction over an appeal from the decision of a trial court on a motion for attorney’s fees under § 6F”).

We vacate the order denying the motion for a finding of fraud on the court and remand for an evidentiary hearing.

So ordered.

Vacated and remanded

——–

Notes:

1 Individually and as parent and next friend of Alexander Hache.

2 Brian Hache, individually. Brian Hache did not participate in this appeal.

4 As the Haches share a surname, we use first names to avoid confusion and we will use Heidi when referring to motions filed by the plaintiffs in the trial court.

5 Wilson died before providing any testimony in this case.

6 Another Wachusett employee, Dennis Baker, the lift department manager, also testified that he did not know who jshepard was and that he did not believe a jshepard had ever been employed as a lift operator or attendant.

7 Heidi did not include a trial transcript in the record on appeal.

8 We also note that rule 60 (b) permits a separate and independent action for a finding of fraud on the court, we conclude that the plaintiff’s motion here is likewise a collateral motion and does not affect the underlying judgment.

9 We express no opinion on the outcome of such a hearing or whether the self-imposed stipulation of liability was a sufficient remedy.

10 There is a notice of appeal from the denial of this motion in the record, however, there is no indication that the plaintiffs pursued the appeal and there is no decision by the single justice in the record.

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Samolyk v. Berthe (N.J. 2022)

Posted: April 24, 2023 | Author: Recreation Law | Filed under: Assumption of the Risk, New Jersey, Search and Rescue (SAR), Uncategorized | Tags: New Jersey, New Jersey Supreme Court, Person in Peril, Rescue, Rescue Doctrine, Supreme Court | Leave a comment

Ann Samolyk and John Samolyk, Plaintiffs-Appellants,
v.
Dorothy Berthe, III, Defendant,

and Ilona Destefanis and Robert Destefanis, Defendants-Respondents.

No. A-16-21

Supreme Court of New Jersey

June 13, 2022

Argued February 1, 2022

On certification to the Superior Court, Appellate Division.

William D. Wright argued the cause for appellants (The Wright Law Firm, attorneys; William D. Wright and David T. Wright, on the briefs).

John Burke argued the cause for respondents (Burke & Potenza, attorneys; John Burke, of counsel and on the brief).

FUENTES, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court considers whether to expand the common law rescue doctrine to permit plaintiffs to recover damages for injuries sustained as a proximate result of attempting to rescue defendants’ dog.

Plaintiff Ann Samolyk sustained neurological and cognitive injuries when she entered a lagoon in Forked River to rescue her neighbors’ dog, which had fallen or jumped into the water. Samolyk’s husband filed a civil action against defendants, alleging they were liable under the rescue doctrine by negligently allowing their dog to fall or jump into the water, prompting Samolyk to attempt to save the dog.

Neither the Law Division nor the Appellate Division found the doctrine applicable. The Court granted certification. 248 N.J. 518 (2021).

HELD: After reviewing the noble principles that infuse the public policy underpinning this cause of action, the Court declines to consider property, in whatever form, to be equally entitled to the unique value and protection bestowed on a human life. The Court nevertheless expands the rescue doctrine to include acts that appear to be intended to protect property but are in fact reasonable measures ultimately intended to protect a human life.

1. Under the rescue doctrine, “[t]he state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid.” Wagner v. Int’l Ry. Co., 133 N.E. 437, 437-38 (N.Y. 1921). The doctrine has also been held to provide a source of recovery to one who is injured while undertaking the rescue of another who has negligently placed himself in peril. Thus, an actor is liable for harm sustained by a rescuer where the conduct of the actor has created a danger only to himself, if at the time of such conduct he should reasonably anticipate that others might attempt to rescue him from his self-created peril, and sustain harm in doing so. The Restatement (Second) of Torts and a majority of states have extended the rescue doctrine to efforts to save property. (pp. 6-11)

2. The Court declines to expand the rescue doctrine to include injuries sustained to protect property, except in settings in which the plaintiff has acted to shield human life. Notwithstanding the strong emotional attachment people may have to dogs, cats, and other domesticated animals, or the great significance some may attribute to family heirlooms, or works of art generally considered as irreplaceable parts of our cultural history, sound public policy cannot sanction expanding the rescue doctrine to imbue property with the same status and dignity uniquely conferred upon a human life. The risk protected by the rescue doctrine is calibrated only by the reasonableness of the actions taken by the rescuer because all human life is equally precious. The same calculation, considering the necessarily subjective attachments to property, would prove untenable. (p. 12)

3. The Court explains that certain preemptive acts that appear to be driven by the protection of property are, at their core, adjuncts to the protection of human life and thus may give rise to a cause of action under the rescue doctrine. By contrast, the uncontested evidence here shows that Samolyk’s actions were based solely on her perception of danger to the dog’s life. The complaint was properly dismissed because the decision to jump into the canal to save the dog’s life does not give rise to a cognizable claim under the rescue doctrine. (pp. 13-14)

AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, SOLOMON, and PIERRE-LOUIS join in JUDGE FUENTES’s opinion.

OPINION

FUENTES JUDGE (temporarily assigned).

This appeal requires this Court to determine whether to expand the common law rescue doctrine to permit plaintiffs to recover damages for injuries sustained as a proximate result of attempting to rescue defendants’ dog. After reviewing the noble principles that infuse the public policy underpinning this cause of action, we decline to consider property, in whatever form, to be equally entitled to the unique value and protection we bestow on a human life. We nevertheless expand the cognizable scope of the rescue doctrine to include acts that facially appear to be intended to protect property, but are in fact reasonable measures ultimately intended to protect a human life.

This matter arises from injuries sustained by plaintiff Ann Samolyk while trying to rescue a dog owned by defendants Ilona and Robert DeStefanis. Ann’s^[1] husband, John Samolyk, filed a civil action against defendants, as Ann’s guardian ad litem, alleging defendants were liable under the rescue doctrine by negligently allowing their dog to fall or jump into the canal that borders their property, prompting Ann to dive into the water to prevent the dog from drowning. The complaint also included a per quod claim by John seeking compensation for any loss or impairment of his spouse’s services, society, and companionship due to injuries Ann sustained as a proximate result of defendants’ negligence.

The parties are neighbors in Forked River, an unincorporated bayfront community within Lacey Township. Their homes are situated on a canal. In the evening of July 13, 2017, defendants’ dog fell or jumped into the canal that snakes around the rear area of this shore community. Ann claimed she heard someone calling for help to rescue their dog that had fallen into the canal.^[2] A report filed by a Lacey police officer describes the incident as “a report of a dog swimming in the lagoon.” The report states that Ann “entered the lagoon to rescue the dog.” The dog “was removed from the lagoon,” without any apparent harm, by defendants’ son and a family friend. Regrettably, Ann was found “unconscious on a floating dock.” In response to defendants’ interrogatories, plaintiffs allege Ann sustained neurological and cognitive injuries as a result of the incident.

After joinder of issue and the parties’ answers to interrogatories, as well as production of relevant documentary evidence, but before the parties took depositions, the Law Division judge assigned to manage the case directed the parties to file dispositive motions addressing whether plaintiffs raised a cognizable claim under the rescue doctrine.

Plaintiffs’ counsel argued that defendants “invited the rescue because the dog was in peril, . . . [and Ann] would not [have] jump[ed] in the lagoon and [nearly] drown[ed] but for the dog being in there and people screaming about having to rescue the dog.” In rebuttal, defense counsel noted that no court in this State had extended the rescue doctrine to apply to the protection of property. The Law Division judge agreed with defendants’ position. The judge noted he was not empowered “to start defining what level of property is worth risking a human life.”

The Appellate Division reached the same conclusion in an unpublished opinion, noting that “no reported case from any New Jersey court has applied the rescue doctrine to support a cause of action brought by the rescuer of real or personal property against a defendant who, through his negligence, placed the property in peril.”

The Appellate Division’s thoughtful opinion recognized, however, that the Restatement (Second) of Torts § 472 (Am. Law Inst. 1965) has extended the rescue doctrine to the protection of property. Plaintiffs also relied on caselaw from our sister states tracking the Restatement’s approach. Although the Appellate Division found that “[s]ome of that authority is persuasive and raises a legitimate question [as to] why the rescue doctrine should be limited to the rescue of another human being,” it nevertheless declined to expand the scope of this common law doctrine in deference to its role as an intermediate appellate court.

This Court granted plaintiffs’ petition for certification to determine whether the rescue doctrine extends to property, specifically here, a dog. 248 N.J. 518 (2021).

II.

The parties rely on the arguments they made before the Appellate Division. Plaintiffs urge this Court to rely on the Restatement, as the majority of our sister states have done, and extend the rescue doctrine to protect property. In response, defendants argue it is unclear whether a majority of states have extended the doctrine to protect property, and they emphasize that New Jersey courts have consistently applied the rescue doctrine to encourage voluntary exposure to danger only to protect human life.

III.

This Court reviews the grant of a motion for summary judgment de novo, applying the same standard used by the trial court. Woytas v. Greenwood Tree Experts, Inc., 237 N.J. 501, 511 (2019). We must “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.” Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). The issue before us concerns the development of our state’s common law, a responsibility exclusively entrusted to this Court. See DCPP v. J.R.-R., 248 N.J. 353, 373 (2021).

The rescue doctrine is best described by quoting the words of Justice Benjamin N. Cardozo, then Judge of the New York Court of Appeals, in Wagner v. International Railway Co.:

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid.

[133 N.E. 437, 437-38 (N.Y. 1921).]

The rescue doctrine established in Wagner was originally limited to situations “where three persons are involved, i.e., one party by his culpable act has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his aid.” See Provenzo v. Sam, 244 N.E.2d 26, 28 (N.Y. 1968). New York courts later expanded the rescue doctrine “to encompass a two-party situation where the culpable party has placed himself in a perilous position which invites rescue.” Ibid.

The rescue doctrine “has long been a part of our State’s social fabric.” Saltsman v. Corazo, 317 N.J.Super. 237, 248 (App. Div. 1998) (quoting Burns
v. Mkt. Transition Facility, 281 N.J.Super. 304, 310 (App. Div. 1995)). The doctrine has been applied “to situations where the rescuer . . . sues the rescued victim who is either completely, or partially, at fault for creating the peril that invited the rescue.” Id. at 249. The Appellate Division has consistently applied the doctrine to cases where the rescuer is injured when trying to rescue another person. See id. at 247; Blackburn v. Broad St. Baptist Church, 305 N.J.Super. 541, 544-46 (App. Div. 1997); Tornatore v. Selective Ins. Co. of
Am., 302 N.J.Super. 244, 252 (App. Div. 1997). The first time this Court directly considered the rescue doctrine was in Ruiz v. Mero, a case in which we affirmed the Appellate Division’s opinion, which held that the Legislature abrogated the “firefighters’ rule”^[3] when it adopted N.J.S.A. 2A:62A-21. 189 N.J. 525, 527 (2007). In Ruiz, a unanimous Court upheld the right of a police officer to rely on the rescue doctrine to sue “a commercial landowner for injuries he suffered when quelling a disturbance at the owner’s bar.” Ibid. In the course of explaining the statute’s unambiguous conflict with the firefighters’ rule, Justice Long noted the rescue doctrine was “[d]eeply rooted” in our state’s common law and “provides a source of recovery to one who is injured while undertaking the rescue of another who has negligently placed himself in peril.” Id. at 528-29.

In Estate of Desir v. Vertus, we reviewed the applicability of the rescue doctrine in the context of a “tragic shooting death of an individual by a criminal fleeing from a business.” 214 N.J. 303, 308 (2013). The estate of the victim filed a civil action against the defendant based in part on the rescue doctrine. Ibid. We held the defendant did not negligently create the danger that caused the decedent to come to his aid because the

evolution of the rescue doctrine remains grounded upon essential tort concepts of duty and foreseeability. As the doctrine has been explained, an actor is liable for harm sustained by a rescuer “where the conduct of the actor has created a danger only to himself, if at the time of such conduct he should reasonably anticipate that others might attempt to rescue him from his self-created peril, and sustain harm in doing so.”

[Id at 321 (quoting Restatement (Second) of Torts § 445 cmt. d).]

Those cases illustrate that, as the guardians of our state’s common law, this Court has limited the application of the rescue doctrine to reflect the sound public policy Justice Cardozo eloquently described in Wagner.

We acknowledge that the Restatement (Second) of Torts extends the rescue doctrine to property and provides that

[i]t is not contributory negligence for a plaintiff to expose himself to danger in an effort to save himself or a third person, or the land or chattels of the plaintiff or a third person, from harm, unless the effort itself is an unreasonable one, or the plaintiff acts unreasonably in the course of it.

[§ 472 (emphasis added).]

See also Prosser & Keeton on Torts, § 44 (5th ed. 1984) (explaining that, “[a]lthough there has been some disagreement, the great majority of courts now apply the [rescue doctrine] to one who tries to rescue the property of another, even when under no duty to do so, and even though the property involved is that of the defendant”).

The Second Restatement, however, acknowledges that “a plaintiff may run a greater risk to his own personal safety in a reasonable effort to save the life of a third person than he could run in order to save the animate or inanimate chattels of his neighbor or even of himself.” § 472 cmt. a. Furthermore, the Restatement (Third) of Torts: Liability for Physical and Emotional Harm includes the extension to property, noting: “This Section is also applicable to a rescuer of imperiled property, whether that property is owned by another or by the rescuer.” § 32, cmt. b (Am. Law Inst. 2010).

A majority of our sister states that have extended the rescue doctrine to cover property have done so in accord with the Restatement (Second) of Torts. See, e.g., Estate of Newton v. McNew, 698 P.2d 835, 837 (Colo.App. 1984) (holding that the doctrine is applicable to property after finding that a “majority of states apply” the doctrine to “one who tries to rescue the property of another”); Neff v. Woodmen of the World Life Ins. Soc’y, 529 P.2d 294, 296 (N.M. Ct. App. 1974) (finding the doctrine applicable to property and noting that “[t]he majority of courts . . . have extended [the doctrine] to include situations where property is in danger of being severely damaged or destroyed”); Henjum v. Bok, 110 N.W.2d 461, 463 (Minn. 1961) (holding that the doctrine is applicable “where an attempt is being made to save human life or property”).

Other jurisdictions have declined to expand the rescue doctrine to include the protection of property. For example, the Missouri Eastern District Court of Appeals held in Welch v. Hesston Corp. that, “[u]nlike a majority of other jurisdictions,” it has consistently declined to extend the rescue doctrine to include the protection of property. 540 S.W.2d 127, 129 (Mo.Ct.App. 1976). The court explained that

[t]he policy basis of the distinction in treatment of rescuers of persons and rescuers of property seems “to rest upon that high regard in which the law holds human life and limb; whereas, when mere property is involved, one may not voluntarily subject another to greater liability than that which he seeks to avert.”

[Id. at 129-30 (quoting Tayer v. York Ice Mach. Corp., 119 S.W.2d 240, 246 (Mo. 1937)).]

IV.

Against this analytical backdrop, we decline to expand the rescue doctrine to include injuries sustained to protect property, except in settings in which the plaintiff has acted to shield human life. We are convinced that any attempt to reform the application of the rescue doctrine to include the protection of property, whether animate or inanimate, realty or chattel, must emanate from our innate instinct to protect human life. Notwithstanding the strong emotional attachment people may have to dogs, cats, and other domesticated animals, or the great significance some may attribute to family heirlooms, or works of art generally considered as irreplaceable parts of our cultural history, sound public policy cannot sanction expanding the rescue doctrine to imbue property with the same status and dignity uniquely conferred upon a human life.

The words uttered by Justice Cardozo describe the contours of a cause of action that tolerates a concomitant degree of harm a plaintiff is reasonably willing to risk and, if necessary, endure to protect a human life. The risk factor is calibrated only by the reasonableness of the actions taken by the rescuer because all human life is equally precious. The same calculation, considering the necessarily subjective attachments to property, would prove untenable.

We are also aware, however, that certain preemptive acts that appear to be driven by the protection of property are, at their core, adjuncts to the protection of human life and thus may give rise to a cause of action under the rescue doctrine. For example, consider a neighbor who reports a fire in a nearby house to the proper authorities, then attempts to squelch the fire based on a reasonable, good faith belief that children or other vulnerable inhabitants may be in immediate danger, or because it appears likely the fire may spread to other occupied properties. Under those circumstances, if the fire was negligently started, the neighbor may have a cognizable basis to invoke the rescue doctrine to recover damages for injuries caused by the preemptive measures taken to limit the intensity of the fire, even if it is later determined there was no actual risk to human life because the house was unoccupied.

The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, SOLOMON, and PIERRE-LOUIS join in JUDGE FUENTES’s opinion.

———

Notes:

^[1] We refer to plaintiffs by their first names because they share the same last name. We do not intend any disrespect.

^[2] Although defendants dispute this part of the facts presented to the Law Division, we will accept them as accurate for the purpose of addressing the dispositive legal issue raised by the parties.

^[3] The firefighters’ rule was a common law affirmative defense absolving the owner or occupier of land of liability “to a paid fireman for negligence with respect to the creation of a fire.” Krauth v. Geller, 31 N.J. 270, 273 (1960).

———

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

Posted: April 21, 2023 | Author: Recreation Law | Filed under: California, Colorado, Florida, Maryland, Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Alaska, Arizona, California, Colorado, Florida, MARYLAND, Massachusetts, Minnesota, Minor, Nebraska, North Dakota, Parent can sign away Minor's Right to Sue, Release, Utah, Virginia, Waiver, Wisconsin | Leave a comment

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State	By Statute	Restrictions
Alaska	Alaska: Sec. 09.65.292	Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona	ARS § 12-553	Limited to Equine Activities
Colorado	C.R.S. §§13-22-107
Florida	Florida Statute § 744.301 (3)	Florida statute that allows a parent to release a minor’s right to sue
Virginia	Chapter 62. Equine Activity Liability § 3.2-6202. Liability limited; liability actions prohibited	Allows a parent to sign a release for a minor for equine activities
Utah	78B-4-203. Limitations on Liability for Equine and Livestock Activities	Limited to Equine Activities (b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.
	By Case Law
California	Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida	Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454	Allows a release signed by a parent to require arbitration of the minor’s claims
Florida	Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147	Release can be used for volunteer activities and by government entities
Maryland	BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897	Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts	Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota	Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299	Minnesota decision upholds parent’s right to sign away a minor’s right to sue.
Nebraska	Sinu v. Concordia Univ., 313 Neb. 218 (Neb. 2023)	Nebraska Supreme Court upholds release for a minor who was injured as a student athlete at a private college.
North Dakota	McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3	North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio	Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)	Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin	Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1	However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state
	On the Edge, but not enough to really rely on	Decisions are by the Federal District Courts and only preliminary motions
North Carolina	Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741	North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York	DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695	New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

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Nebraska Supreme Court upholds release for a minor who was injured as a student athlete at a private college.

Posted: April 17, 2023 | Author: Recreation Law | Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue), Sports | Tags: Exculpatory clause, Indemnity Clause, Injury, Minor, Nebraska, Parent can sign away Minor's Right to Sue, Release, student athlete, Waiver | Leave a comment

Age of majority is 19 in Nebraska. Student athlete was 18 when he, and his mother signed release. Release was used to stop lawsuit over injuries received as a student athlete.

Sinu v. Concordia Univ., 313 Neb. 218 (Neb. 2023)

State: Nebraska, Supreme Court of Nebraska

Plaintiff: Konrad Sinu and his mother

Defendant: Concordia University is a private institution in Nebraska

Plaintiff Claims: negligence

Defendant Defenses: Release

Holding: For the Defendant

Year: 2023

Summary

Nebraska Supreme Court upholds release signed by a parent to block the claims of a minor injured as a student athlete.

Facts

Concordia University is a private institution in Nebraska. It recruited Konrad Sinu (the student) to play for the university’s intercollegiate men’s soccer team. The university provided the student with soccer and academic scholarships. Before the student moved to Nebraska from his home in England, he signed an “Assumption of Risk and Waiver of Liability Release.” Because the student was 18 years old, his mother also signed the release.

Roughly 5 months after arriving at the university, the student and his soccer teammates engaged in a mandatory strength and conditioning workout at the university’s Walz Human Performance Complex (the Walz). The workout involved circuit training in which the teammates moved from one exercise station to another in small groups. One station consisted of an exercise referred to as the “face pull.” In the exercise, an elastic resistance band was secured to a squat rack post and was pulled toward the user’s face. During the course of the workout, teammates altered the band’s placement from how a university employee originally set it. When the student approached the squat rack, he observed the resistance band resting on a “I-hook” of the squat rack. As the student performed the exercise, the resistance band slid off the hook and caused injury to his eyes.

The student and his mother sued the university, setting forth a cause of action for negligence. The university asserted numerous affirmative defenses in its responsive pleading. One defense alleged that the claim was barred by the release signed by the student and his mother. Another defense alleged that the claim was barred by the doctrine of assumption of risk.

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

The Nebraska Supreme Court looked at two issues in this decision. The second issue is whether or not the plaintiff should have been given the opportunity to amend their complain to include claims that might have not been covered by the release. That issue will not be discussed because it is procedural in nature.

The first issue is whether or not a release signed by a minor and his mother can be used in Nebraska to stop claims for injuries received by the minor.

Nebraska as a simple test to determine the validity of a release initially: the release must be valid and enforceable.

Under Nebraska law, releases are exculpatory clauses, as in most other states.

The release is a type of exculpatory clause. An exculpatory clause is “[a] contractual provision relieving a party from liability resulting from a negligent or wrongful act.” Such clauses purport to deny an injured party the right to recover damages from the very person or entity which negligently caused the injury.

The court then compared exculpatory clauses to indemnify clauses since both were used in this release.

An indemnity clause is “[a] contractual provision in which one party agrees to answer for any specified or unspecified liability or harm that the other party might incur.” Although an indemnity clause may ultimately have the same effect as an exculpatory clause, they differ. “An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing the injury, while an indemnification clause attempts to shift the responsibility for the payment of damages to someone other than the negligent party . . . .” In some situations, the indemnity clause shifts such responsibility back to the injured party, thereby yielding the same result as an exculpatory clause. But “an indemnity provision generally does not apply to claims between the parties to an agreement. . . . ‘Rather, [the provision] obligates the indemnitor to protect the indemnitee against claims brought by persons not a party to the provision.'”

The court then explained additional requirements for a release to be valid.

Exculpatory clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he [or she] is contracting away

This is sort of a step back to the plain English rule. Where contracts for consumers must be understood by the consumer. The persons signing a release are not consumers under the legal meaning of the term, but they are not sophisticated business people represented by attorneys. Consequently, many courts require the language of the release to be understandable and clearly state the intentions of the release. No more small print hidden on the paperwork.

The court then looked at the language in the release. This release did not use the magic term “negligence” which is required in many states; however the court found the language explained the issues and was easy to understand.

The provision must be looked at as a whole and given a reasonable construction. If there is no specific reference to liability for negligence, it must otherwise clearly appear from the language used or from a determination that no other meaning could be ascribed to the contract such that the court is firmly convinced that such interpretation reflects the intention of the parties. Here, the intended effect was clear.

The court then went through the release section by section pointing out the important points that made the release a valid and enforceable agreement.

Start with the language of the release. In large, boldface type at the top of the page appears the title, “Assumption of Risk and Waiver of Liability Release.” The document then states that “[i]n consideration of . . . being provided access and the opportunity to use the Walz” and in recognition of the “risks inherent in such physical activity, I do hereby . . . release . . . the [u\niversity . . . from and against any and all claims, demands, injuries, actions or causes of action, for . . . personal injury . . . which may result from my presence at or participation in any such [u]niversity activities.” (Emphasis supplied.)

Although the document does not mention negligence, it is apparent that releasing the university from its own negligence was the document’s intended consequence. As is evident from the definition of an exculpatory clause set forth above, relieving a party from its own negligence is the very purpose of an exculpatory clause. The language of the release clearly demonstrates an intent to eliminate the university’s liability, particularly when protecting the university from negligence claims is the only reasonable construction.

In some cases dealing with indemnity clauses, we have found broad language to not be clear or unequivocal. In one case, we determined that a reference to ‘”any and all claims for damage and liability for injury to or death of persons'” was not sufficient to impose liability for an indemnitee’s negligence. In another case, we stated that language that an indemnitor would protect an indemnitee against ‘”all risks and from any claims that may arise out of or pertain to the performance of such work,'” did not constitute express language covering the indemnitee’s own negligence nor did it constitute clear and unequivocal language that it was the parties’ intention to cover the indemnitee’s own negligence.

The plaintiff’s argued the release was ambiguous. Again, the court looked at the issue of the release not containing the magic term negligence and again found the language of the release was clear enough, that it was not needed. However, since the court brought that issue up three times in one decision, it might be important to include the word in releases in Nebraska.

For the same reason expressed above, we reject the student and his mother’s claim that the release did not unambiguously notify them that they were releasing the university from its own negligence. While the release’s language may not have explicitly used the word “negligence” or referenced the university’s conduct, it was not ambiguous.

An ambiguity in a release is a word, phrase or provision that may reasonably be interpreted in more than one way.

An exculpatory clause, like a contract, is ambiguous when a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings. A contract which is written in clear and unambiguous language is not subject to interpretation or construction; rather, the intent of the parties must be determined from the contents of the contract, and the contract must be enforced according to its terms.

The plaintiffs then argued the release was unconscionable. Here the court found the release was not in several different ways.

Even if clear and unambiguous, an exculpatory clause will be unenforceable if it is unconscionable or void as against public policy. The student and his mother advance several reasons why they believe the release was unconscionable and void as against public policy. Those reasons lack merit.

There is a general reluctance to hold a release or any contract unconscionable. The court then applied a two-prong test to the release to determine if it was unconscionable.

We have stated that an essential fact in determining unconscionability is the disparity in respective bargaining positions of parties to a contract. Other jurisdictions have adopted a two-prong test for determining whether exculpatory clauses are invalid as contrary to public policy: (1) whether there was a disparity of bargaining power between the parties and (2) the types of services being offered or provided.

The court found there was no disparity in bargaining power because the student athlete was free to go to other schools to play soccer. The second test reviews the types of services be offered in exchange for the release but a necessity; something that you really can’t live without.

Further, the services offered by the university were not a public or essential service. The university is a private school, and the release related to a recreational activity. “Exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy. Indeed, plaintiff’s ordinary negligence claims may generally be barred where she or he voluntarily executes exculpatory contract in order to participate in recreational or nonessential activities.”

Recreational activities in Nebraska are not necessities. This has been the holding when any court looks at the issues of recreational activities. Although most readers would argue that without recreation, life is pretty dull, it is still not an essential component for life, yet.

What the court never examined was the age of the signor and who or how the student athlete was barred by the release. In Nebraska, you are not an adult until you reach the age of 19. When the student athlete signed the release, he was only 18 years old. See
The age that minors become adults for the ages of the states when a minor becomes an adult.

In every state, a minor cannot sign a release, and unless there is an aberration in the law in Nebraska, I am not familiar with, if you are a minor, someone under the age of consent, then you cannot sign a contract.

The student’s mother was supposedly over the age of 19, although never brought out in the release and the release was deemed valid to stop her and her sons claims. Consequently, Nebraska joins the list of states where a parent can sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue for the other states and case law that allow a parent to sign away a minor’s right to sue.

So Now What?

The good news is Nebraska joins the short list of states that allow a parent to sign away a minor’s right to sue.

The educational issue there are several points to review when writing a release under Nebraska law. The most important is to include the magic word “negligence” in the release as the legal right the signor of the release is giving up.

Other articles reviewing Nebraska Law see:

In Nebraska a release can defeat claims for gross negligence for health club injury

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here.

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Sinu v. Concordia Univ., 313 Neb. 218 (Neb. 2023)

Posted: April 17, 2023 | Author: Recreation Law | Filed under: Minors, Youth, Children, Nebraska, Release (pre-injury contract not to sue), Sports, Uncategorized | Tags: Minor, Nebraska, Private College, Release, student athlete, Waiver | Leave a comment

313 Neb. 218

KONRAD SINU AND LIDIA SZURLEJ, APPELLANTS.
v.
CONCORDIA UNIVERSITY, APPELLEE.

No. S-21-959

Supreme Court of Nebraska

January 13, 2023

1.
Summary Judgment: Appeal and Error. An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.

2. __:__. In reviewing the grant of a motion for summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.

3. Rules of the Supreme Court: Pleadings: Appeal and Error. An appellate court reviews a district court’s denial of a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, an appellate court reviews de novo any underlying legal conclusion that the proposed amendments would be futile.

4. Contracts: Words and Phrases. An exculpatory clause is a contractual provision relieving a party from liability resulting from a negligent or wrongful act.

5. Contracts: Intent. Exculpatory clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he or she is contracting away.

6. Contracts: Words and Phrases. An exculpatory clause is governed by principles generally applied in construction or interpretation of other contracts.

7. Contracts: Negligence: Liability: Intent. If there is no specific reference to liability for negligence, it must otherwise clearly appear from the language used or from a determination that no other meaning could be ascribed to the contract such that the court is firmly convinced that such interpretation reflects the intention of the parties.

8. Contracts: Words and Phrases. An exculpatory clause, like a contract, is ambiguous when a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings.

9. Contracts: Intent. A contract which is written in clear and unambiguous language is not subject to interpretation or construction; rather, the intent of the parties must be determined from the contents of the contract, and the contract must be enforced according to its terms.

10. Contracts: Public Policy. Courts should be cautious in holding contracts void on the ground that the contract is contrary to public policy; to be void as against public policy, the contract should be quite clearly repugnant to the public conscience.

11. __:__ . Whether a particular exculpatory clause in a contractual agreement violates public policy depends upon the facts and circumstances of the agreement and the parties involved.

12. Contracts. An essential fact in determining unconscionability is the disparity in respective bargaining positions of parties to a contract.

13. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

14. Rules of the Supreme Court: Pleadings: Appeal and Error. When a party seeks leave to amend a pleading, appellate court rules generally require that leave shall be freely given when justice so requires. Denial of leave to amend pleadings is appropriate only in those limited circumstances in which undue delay, bad faith on the part of the moving party, futility of the amendment, or unfair prejudice to the nonmoving party can be demonstrated.

15. Pleadings: Pretrial Procedure: Summary Judgment. When a motion for leave to amend a pleading is filed after a motion for summary judgment but before discovery is closed, the standard for assessing the futility of the amendment turns on whether there was a sufficient opportunity for discovery.

16. __:__:__. When a motion for summary judgment has been filed and a party seeking leave to amend a pleading has had sufficient opportunity for discovery, futility is judged by whether the proposed amendment could withstand a motion for summary judgment.

17. Pleadings: Evidence: Summary Judgment. A proposed amendment to a pleading may be considered futile when the evidence in support of the proposed amendment creates no triable issue of fact and the opposing party would be entitled to judgment as a matter of law.

18.
Negligence: Words and Phrases. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty.

19. Negligence. Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.

20. Negligence: Summary Judgment. The issue of gross negligence is susceptible to resolution in a motion for summary judgment.

Appeal from the District Court for Seward County: James C. Stecker, Judge. Affirmed.

Jason G. Ausman and Michelle D. Epstein, of Ausman Law Firm, PC, L.L.O, for appellants.

David P. Kennison and Heidi A. Guttau, of Baird Holm, L.L.P., for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ., and Strong, District Judge.

Cassel, J.

I. INTRODUCTION

Based upon a waiver of liability signed by a student and his mother, the district court granted a summary judgment rejecting their negligence claim against a university. The court also refused an attempt-made after the summary judgment motion was filed but before discovery closed-to amend the complaint. They appeal.

We find no error in granting summary judgment. Although the release did not mention negligence, its language was broad and clear and did not contravene public policy.

On the denial of leave to amend, we first settle the standard for assessing futility at that point. Because they had sufficient opportunity for discovery and we agree that their proposed amendments to add allegations of gross negligence would be futile, we find no abuse of discretion. We affirm.

II. BACKGROUND

We begin with a brief background. Additional facts will be incorporated, as necessary, in the analysis section.

Some 4 months prior to the discovery deadline, the university moved for summary judgment. Approximately 2 months later and prior to the hearing on the university’s motion, the student and his mother moved for leave to file an amended complaint. They wished to add allegations that the university’s willful and wanton or grossly negligent actions caused the student’s injuries. Following a hearing on the motion to amend, the court denied the motion.

After the discovery deadline and days before the scheduled summary judgment hearing, the student and his mother filed a renewed motion for leave to file an amended complaint. The court again denied the motion for leave, finding that any amendment would be futile.

The court held a hearing on the motion for summary judgment and received a number of exhibits. It subsequently entered summary judgment in the university’s favor and dismissed the complaint with prejudice. In doing so, the court rejected arguments that the release was unconscionable, that it did not release the university from liability for its own negligence, and that the release did not amount to an assumption of risk.

The student and his mother appealed, and we moved the case to our docket.^[1]

III. ASSIGNMENTS OF ERROR

The student and his mother allege that the district court erred in (1) granting summary judgment in the university’s favor when genuine disputes remain as to material facts and the ultimate inferences that a jury may draw from those facts and (2) denying their motion for leave to file an amended complaint when the proposed amended complaint stated a claim for which relief could be granted.

IV. STANDARD OF REVIEW

An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.^[2]

In reviewing the grant of a motion for summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.^[3]

An appellate court reviews a district court’s denial of a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, an appellate court reviews de novo any underlying legal conclusion that the proposed amendments would be futile.^[4]

V. ANALYSIS

1. Summary Judgment

This case is before us following the district court’s entry of summary judgment in the university’s favor. To establish entitlement to judgment as a matter of law, the university relied on the release signed by the student and his mother. For summary judgment to be appropriate, the release must be valid and enforceable. The student and his mother argue that it was not. Before considering their challenges, we set forth the language of the release and discuss exculpatory and indemnity clauses.

(a) Additional Facts

The entire release appeared on one side of a single page. The title, “Assumption of Risk and Waiver of Liability Release,” was displayed in large, boldface type. It then stated:

PLEASE READ THE FOLLOWING CAREFULLY.
If you have any questions or concerns, please visit with an attorney before signing this document. This release must be signed before participation in activities at [the university] is allowed.

I acknowledge that my participation in certain activities including, but not limited to, intercollegiate athletics intramural sports, use of [the Walz], P.E. Center, [university stadium field/track, adjacent [u]niversity athletic fields and the City of Seward’s Plum Creek Park may be hazardous, that my presence and participation are solely at my own risk, and that I assume full responsibility for any resulting injuries, damages, or death.

In consideration of being allowed to participate in such activities and/or being provided access and the opportunity to use the Walz and other [u]niversity facilities and equipment, and in full recognition and appreciation of the danger and risks inherent in such physical activity, I do hereby waive, release and forever discharge the [university, its officers, directors, agents, employees and representatives, from and against any and all claims, demands, injuries, actions or causes of action, for costs, expenses or damages to personal property, or personal injury, or death, which may result from my presence at or participation in any such [u]niversity activities.

I further agree to indemnify and hold the [university, its officers, directors, agents, employees and representatives harmless from any loss, liability, damage or costs including court costs and attorney’s fees incurred as a result of my presence at or participation in any such activities. I also understand that this [release] binds me, my personal representatives, estate, heirs, next of kin and assigns.

I have read the [release] and fully understand it and agree to be legally bound by it. Beneath a line for the student’s signature, the release contained the following section, with boldface type as it appeared on the document:

If 18 years of age or younger, signature of parent/ guardian is also required.

I, as the parent or guardian of the above-named minor, have read the [release], fully understand it, and hereby voluntarily agree and execute the [release] on behalf of myself as well as the above-named minor and agree that the minor and I are legally bound by it.

Below this section appeared a line for the parent’s or guardian’s signature.

(b) Discussion

(i) Exculpatory and Indemnity Clauses

The release is a type of exculpatory clause. An exculpatory clause is “[a] contractual provision relieving a party from liability resulting from a negligent or wrongful act.”^[5] Such clauses purport to deny an injured party the right to recover damages from the very person or entity which negligently caused the injury.^[6]

The release also contained an indemnity clause, but that clause has not been a focal point of the litigation. We do not express any opinion regarding the validity of the indemnity clause contained in the release. However, we briefly discuss indemnity clauses in general in order to distinguish them from exculpatory clauses.

An indemnity clause is “[a] contractual provision in which one party agrees to answer for any specified or unspecified liability or harm that the other party might incur.”^[7] Although an indemnity clause may ultimately have the same effect as an exculpatory clause, they differ. “An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing the injury, while an indemnification clause attempts to shift the responsibility for the payment of damages to someone other than the negligent party . . . .”^[8] In some situations, the indemnity clause shifts such responsibility back to the injured party, thereby yielding the same result as an exculpatory clause.^[9]But “an indemnity provision generally does not apply to claims between the parties to an agreement. . . . ‘Rather, [the provision] obligates the indemnitor to protect the indemnitee against claims brought by persons not a party to the provision.'”^[10]

Both exculpatory and indemnity clauses must make clear the effect of the agreement. And such a clause is strictly construed against the party claiming its benefit.^[11] “Exculpatory clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he [or she] is contracting away”^[12] Similarly, “[a]n agreement which purports to indemnify the party who prepared it from liability for that party’s own negligence . . . must be clear, explicit and comprehensible in each of its essential details [and] must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.”^[13] With this understanding in place, we turn to the student and his mother’s attacks on the release.

(ii) Clear Language

The student and his mother argue that the release did not contain express or clear and unequivocal language that the parties intended to release the university from its own negligence. They are correct that the release does not use words such as “negligence” or “fault.” But that does not end the inquiry.

An exculpatory clause is governed by principles generally applied in construction or interpretation of other contracts.^[14] The provision must be looked at as a whole and given a reasonable construction.^[15] If there is no specific reference to liability for negligence, it must otherwise clearly appear from the language used or from a determination that no other meaning could be ascribed to the contract such that the court is firmly convinced that such interpretation reflects the intention of the parties.^[16] Here, the intended effect was clear.

Start with the language of the release. In large, boldface type at the top of the page appears the title, “Assumption of Risk and Waiver of Liability Release.” The document then states that “[i]n consideration of . . . being provided access and the opportunity to use the Walz” and in recognition of the “risks inherent in such physical activity, I do hereby . . . release . . . the [u\niversity . . . from and against any and all claims, demands, injuries, actions or causes of action, for . . . personal injury . . . which may result from my presence at or participation in any such [u]niversity activities.” (Emphasis supplied.)

In some cases dealing with indemnity clauses, we have found broad language to not be clear or unequivocal. In one case, we determined that a reference to ‘”any and all claims for damage and liability for injury to or death of persons'” was not sufficient to impose liability for an indemnitee’s negligence.^[18]In another case, we stated that language that an indemnitor would protect an indemnitee against ‘”all risks and from any claims that may arise out of or pertain to the performance of such work,'” did not constitute express language covering the indemnitee’s own negligence nor did it constitute clear and unequivocal language that it was the parties’ intention to cover the indemnitee’s own negligence.^[19]

But we are not addressing an indemnity clause here. As set forth above, an exculpatory clause such as a release is not synonymous with an indemnity clause. Because indemnity clauses shift liability and may involve third parties, it is important to specify whose negligence is being covered. But here, an obvious purpose of the release was to exempt the university from its own negligence.

(Hi) Ambiguity

An exculpatory clause, like a contract, is ambiguous when a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings.^[20] A contract which is written in clear and unambiguous language is not subject to interpretation or construction; rather, the intent of the parties must be determined from the contents of the contract, and the contract must be enforced according to its terms.^[21]

The release placed no liability on the university for any injury suffered by the student. The language plainly stated that the student released the university “from and against any and all claims, demands, injuries, actions or causes of actions, for costs, expenses or damages to personal property, or personal injury, or death, which may result from my presence at or participation in any such [u]niversity activities.” This language covers “any” claim for ordinary negligence, which includes any claim caused by the university’s ordinary negligence. We see no ambiguity.

(iv) Unconscionable and Against Public Policy

To begin, courts are disinclined to find a contractual agreement void as against public policy. Courts should be cautious in holding contracts void on the ground that the contract is contrary to public policy; to be void as against public policy, the contract should be quite clearly repugnant to the public conscience.^[22] Stated differently, the power of courts to invalidate contracts for being in contravention of public policy is a very delicate and undefined power which should be exercised only in cases free from doubt.^[23]

Whether a particular exculpatory clause in a contractual agreement violates public policy depends upon the facts and circumstances of the agreement and the parties involved.^[24]Public policy prevents a party from limiting its damages for gross negligence or willful and wanton misconduct.^[25] It is important to note at this juncture that the student and his mother’s claim is limited to ordinary negligence. We need not address the release’s enforceability if the student and his mother had alleged gross negligence.

We have stated that an essential fact in determining unconscionability is the disparity in respective bargaining positions of parties to a contract.^[26] Other jurisdictions have adopted a two-prong test for determining whether exculpatory clauses are invalid as contrary to public policy: (1) whether there was a disparity of bargaining power between the parties and (2) the types of services being offered or provided.^[27]

There was no disparity in bargaining power. The student emphasizes that he was an 18-year-old minor living on a different continent and believed he had to sign the release in order to attend the university. He highlights that the second sentence of the release stated it “must be signed before participation in activities at [the university] is allowed.” But the first sentence of the release informed the student to speak with an attorney before signing the document if he had any concerns. The student had a reasonable opportunity to understand the terms of the contract. And because the student was a minor, his mother also had to agree to the terms and sign the release. The fact that the student was given the release to sign a month prior to moving to Nebraska militates against his compulsion argument. He could have gone elsewhere to play soccer and attend college.

Because the release was valid, it barred the student and his mother’s negligence claim against the university. We conclude the district court properly entered summary judgment in the university’s favor.

The student and his mother additionally argue that the student did not assume the risk of the danger he confronted. But because the release barred the student’s claim, we need not also address whether the student assumed the risk of his injury. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.^[29]

2. Leave to Amend

The student and his mother twice sought leave to amend their complaint to include allegations of gross negligence and willful and wanton misconduct. The court denied both requests. In considering whether the court abused its discretion in doing so, we set forth the relevant procedural timeline and determine the standard of review applicable under the circumstances.

(a) Additional Facts

The following timeline provides helpful context in considering the timing of the motions for leave to amend:

• 06/26/2019: complaint filed

• 08/14/2019: answer filed

• 11/02/2020: discovery deadline extended to 06/04/2021

• 11/02/2020: depositions of three university employees taken

• 11/19/2020: depositions of the student and his mother taken

• 12/02/2020: deposition of university employee taken

• 01/28/2021: motion for summary judgment filed

• 03/25/2021: motion for leave to file amended complaint

• 04/05/2021: court denied motion for leave

-allowed 45 days for disclosure of expert witness

-extended discovery deadline to 08/01/2021

-continued summary judgment hearing to 08/16/2021

• 05/19/2021: student’s expert witness disclosed

• 08/11/2021: renewed motion for leave to file amended complaint

(b) Discussion

When a party seeks leave to amend a pleading, appellate court rules generally require that leave shall be freely given when justice so requires. Denial of leave to amend pleadings is appropriate only in those limited circumstances in which undue delay, bad faith on the part of the moving party, futility of the amendment, or unfair prejudice to the nonmoving party can be demonstrated.^[30] As the timeline demonstrates, the student and his mother first sought leave to amend after the university filed its motion for summary judgment but before discovery closed. They filed a renewed request for leave to amend after the discovery deadline.

Our case law has discussed the situation where leave is sought before discovery is complete and before a motion for summary judgment is filed. If leave to amend is sought before discovery is complete and before a motion for summary judgment has been filed, the question of whether such amendment would be futile is judged by reference to Neb. Ct. R. Pldg. § 6-1112(b)(6).^[31] Leave to amend in such circumstances should be denied as futile only if the proposed amendment cannot withstand a motion to dismiss under § 6-1112(b)(6).^[32]

Our case law has also addressed the situation where leave is sought after discovery is closed and after a motion for summary judgment has been filed. After discovery is closed and a motion for summary judgment has been filed, the appropriate standard for assessing whether a motion to amend should be determined futile is that the proposed amendment must be not only theoretically viable but also solidly grounded in the record and supported by substantial evidence sufficient to give rise to a triable issue of fact.^[33]

Our case law has not directly addressed the situation here. The student and his mother sought leave to amend the complaint before the close of discovery but after the university filed a motion for summary judgment.

A commentator has proposed a standard to evaluate futility in such a situation. The commentator suggests that the standard used “should depend on whether the plaintiff can establish that it needs to engage [i]n discovery on the new matter alleged in the amendment.”^[34] The commentator explains:

A plaintiff who seeks leave to amend but who lacks sufficient evidence to withstand a motion for summary judgment directed at the new matter should file an affidavit explaining why it needs additional discovery to develop a sufficient evidentiary basis for the new matter. If [the] court finds the explanation sufficient, then the court should evaluate the futility of the amendment by applying the standard for [a] motion to dismiss for failure to state a claim. If the court finds the explanation insufficient, then the court should apply the standard for summary judgment.^[35]

We agree with the commentator’s view. When a motion for leave to amend a pleading is filed after a motion for summary judgment but before discovery is closed, the standard for assessing the futility of the amendment turns on whether there was a sufficient opportunity for discovery. Here, there was.

The student and his mother had engaged in substantial discovery to develop their case. At the time of their initial motion for leave, they had taken the depositions of six individuals. They had requested additional time to disclose expert opinions regarding the university’s alleged negligence and had disclosed their expert witness prior to renewing their motion for leave.

When a motion for summary judgment has been filed and a party seeking leave to amend a pleading has had sufficient opportunity for discovery, futility is judged by whether the proposed amendment could withstand a motion for summary judgment. In determining whether the proposed amendment was futile, the standard is whether the proposed amendment is both theoretically viable and solidly grounded in the record and supported by substantial evidence sufficient to give rise to a triable issue of fact.^[36] Stated differently, the proposed amendment may be considered futile “when the evidence in support of the proposed amendment creates no triable issue of fact and the opposing party would be entitled to judgment as a matter of law.”^[37]

With the appropriate standard in place, we review the district court’s determination for an abuse of discretion. Addressing the renewed motion for leave, the court stated that the facts would not support a finding of gross negligence and that any amendment would be futile. We agree.

The student and his mother wished to amend the complaint to allege the university’s “negligence, recklessness, willful and wanton, and/or grossly negligent actions” caused the student’s injury and damages. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty.^[38] Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.^[39] The issue of gross negligence is susceptible to resolution in a motion for summary judgment.^[40]

The allegations in the proposed amended complaint do not rise to the level of gross negligence. The proposed complaint would allege, among other things, that the university was negligent in allowing the student athletes to pull the resistance band toward their faces and in failing to inform the student that other student athletes could modify the placement of the bands during the workout. At best, these allegations would implicate ordinary negligence. Because the proposed amendments would have been futile, we conclude the district court did not abuse its discretion in overruling the motions for leave to file an amended complaint.

VI. CONCLUSION

We conclude that the district court properly entered summary judgment in the university’s favor, because the release signed by the student and his mother was valid and enforceable and relieved the university of liability for its ordinary negligence. And because the proposed amendments to the complaint would have been futile, the district court did not abuse its discretion in overruling the student and his mother’s motions for leave to amend. We affirm the judgment.

Affirmed.

Miller-Lerman, J., not participating.

———

Notes:

^[1] See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).

^[2]
Kozal v. Snyder, 312 Neb. 208, 978 N.W.2d 174 (2022).

^[3]
Id.

^[4]
Williams v. State, 310 Neb. 588, 967 N.W.2d 677 (2021).

^[5] Black’s Law Dictionary 712 (11th ed. 2019).

^[6] See 57A Am. Jur. 2d Negligence § 41 (2022).

^[7] Black’s Law Dictionary 919 (11th ed. 2019).

^[8] 57A Am. Jur. 2d, supra note 6, § 43 at 86.

^[9]See id.

^[10]
Ganske v. Spence, 129 S.W.3d 701, 708 (Tex. App. 2004).

^[11]See, Annot, 175 A.L.R. 8, § 8 (1948); 57AAm. Jur. 2d, supra note 6; 17A C.J.S. Contracts § 448 (2020). See, also, Dion v. City of Omaha, 311 Neb. 522, 973 N.W.2d 666 (2022).

^[12] 57A Am. Jur. 2d, supra note 6, § 46 at 91.

^[13]Id. § 44 at 88.

^[14] See Oddo v. Speedway Scaffold Co., 233 Neb. 1, 443 N.W.2d 596 (1989).

^[15] See Kuhn v. Wells Fargo Bank of Neb., 278 Neb. 428, 771 N.W.2d 103 (2009).

^[16]
Dion v. City of Omaha, supra note 11.

^[17] See 57A Am. Jur. 2d, supra note 6, § 49.

^[18]
Dion v. City of Omaha, supra note 11, 311 Neb. at 556, 973 N.W.2d at 690.

^[19]
Anderson v. Nashua Corp., 251 Neb. 833, 840, 560 N.W.2d 446, 450 (1997).

^[20]See Community First Bank v. First Central Bank McCook, 310 Neb. 839. 969 N.W.2d 661 (2022).

^[21]New Light Co. v. Wells Fargo Alarm Servs., 247 Neb. 57, 525 N.W.2d 25 (1994).

^[22]SFI Ltd. Partnership 8 v. Carroll, 288 Neb. 698, 851 N.W.2d 82 (2014).

^[23]Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776 (2006).

^[24]New Light Co. v. Wells Fargo Alarm Servs., supra note 21.

^[25]Id.

^[26]Myers v. Nebraska Invest. Council, supra note 23.

^[27]Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920 (Minn. 1982).

^[28] 57A Am. Jur. 2d, supra note 6, § 62 at 112.

^[29]
Schreiber Bros. Hog Co. v. Schreiber, 312 Neb. 707, 980 N.W.2d 890 (2022).

^[30]
McCaulley v. C L Enters., 309 Neb. 141, 959 N.W.2d 225 (2021).

^[31]
Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017).

^[32]
Id.

^[33]
Id.

^[34] John P. Lenich, Nebraska Civil Procedure § 15:4 at 723 (2022).

^[35]
Id.

^[36] See Estermann v. Bose, supra note 31.

^[37]
Bailey v. First Nat. Bank of Chadron, 16 Neb.App. 153, 169, 741 N.W.2d 184, 197 (2007).

^[38]
Palmer v. Lakeside Wellness Ctr., 281 Neb. 780, 798 N.W.2d 845 (2011).

^[39]
Id.

^[40]
Id.

———

@2023 Summit Magic Publishing, LLC

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Idaho Businesses are Stingy: at least with the new Outfitter bill

Posted: February 20, 2023 | Author: Recreation Law | Filed under: Activity / Sport / Recreation, Idaho | Tags: Bill, Guide, Idaho, Inhernet Risk, Legislature, Outfitter, Outfitter and Guide, statute | Leave a comment

https://rec-law.us/3YUmQeq

State: Idaho

There is a new law that is trying to get passed in Idaho. The law wants outfitters to be able to use a release. Idaho law currently allows a release to be used to block a lawsuit. See
Plaintiff raised argument in work/team building situation that they were forced to sign release. release. The state is not a stalwart of release law but the few cases, I’ve read support the release.

The bill wants to make the use of a release ONLY for outfitters and guides a law, not just judicial decision. Here is the statute as of 3/16/21.

6-1206. LIABILITY OF OUTFITTERS AND GUIDES. (1) No outfitter or guide licensed under the provisions of chapter 21, title 36, Idaho Code, and acting in the course of his employment shall be liable to a participant for damages or injuries to such participant unless such damage or injury was directly or proximately caused by failure of the outfitter or guide to comply with the duties placed on him by the negligent, reckless, or intentional conduct of the outfitter or guide.

An outfitter or guide has no duty to eliminate, alter, control, or lessen the risks inherent with recreational activities provided by outfitters and guides. A participant who takes part in a recreational activity provided by outfitters and guides assumes all risks inherent in that activity.

Any person may, by express written consent, prospectively waive negligence claims against licensed outfitters and guides. It is the policy of this state that such written liability waivers are enforceable to the same degree as similar waivers for other activities.

Click on the Link Above and Click On Bill Text to see the latest version. Be careful it is written in legislative legalese, which I have cleaned up above.

I’m not sure what prompted this bill. However, there are several issues with it.

You cannot sue for the inherent risks of an activity. The issue in a case like this is was the risk that caused the injury inherent or man-made. This bill does nothing to clarify what an inherent risk is so that is not going to change anything. Plaintiffs are still going to sue; they are just going to argue the outfitter changed the risk or created the risk, and it was not inherent.

If you want to protect yourself from that “what is inherent” lawsuit you need to define them in the statute. There seems to be a reluctance to do this because even the Idaho Ski Safety Act does not define the inherent risks. See Idaho Ski Safety Act.

Most other ski safety acts do. See the Colorado Ski Safety Act which identifies inherent risks in 33-44-103. Definitions. (3.5)

(3.5) “Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. The term “inherent dangers and risks of skiing” does not include the negligence of a ski area operator as set forth in section 33-44-104 (2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.

Avalanches were added to that list by the Colorado Supreme Court in Colorado Supreme Court rules that an inbounds Avalanche is an inherent risk assumed by skiers based upon the Colorado Skier Safety Act.

As such, a skier and skier’s attorney quickly know if they have a case or not. Versus in Idaho where you have to sue to have the judge decided if the risk that caused your injury on the slopes or by an outfitter were inherent. That costs money.

Part of the act outlines how a plaintiff can sue the outfitter or guide. By the “negligent, reckless, or intentional conduct” of the outfitter or guide. Never tell the opposition how to sue you. Besides in this case they already know. That part of the act does not change anything. That is the law in Idaho and every other state.

Consequently, the bill is pretty weak or better has no real value.

On top of that the bill is very narrow. Outfitters and Guides licensed by the state are not the only groups that can be sued because of the risks of an activity. I would think they would gather more support if the included other groups such as:

Youth Groups Youth Camps Sports Activities Coaches Volunteer Youth Leaders

Recreational Activities such as Indoor Climbing Walls, Trampoline parks, etc.

Little League and Youth Football programs alone would bring a lot of additional support.

To get a bill to pass, in most state legislatures, you have to give the legislators a reason not to vote against the bill. Having the outfitters and guides contacting their legislators is probably a small group of legislators since the areas the outfitters and guides are based is pretty sparse.

Having little league coaches in Boise, Moscow and other suburban areas would add a lot of voices in support.

Good luck on passing the bill; however, I think a lot of time; money and energy will be invested with little or no return.

For more about “inherent risks” see:

2015 SLRA – Inherent Risk: Should the Phrase be in your Release?

A season pass release for a Pennsylvania ski are was limited to the inherent risks of skiing. Consequently, the plaintiff was able to argue his injury was not due to an inherent risk.

@RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

What do you think? Leave a comment below.

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

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

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Release signed previously for different event by same defendant used to defeat claim at new event in Georgia

Posted: November 14, 2022 | Author: Recreation Law | Filed under: Georgia, Indoor Recreation Center, Release (pre-injury contract not to sue) | Tags: Floor Mats, Floor Padding, Georgia, Georgia All Stars, Georgia Recreational Use Statute, Gym, Mats, Recreational Use Statute, Release, Tumbling | Leave a comment

Georgia Recreational Use Statute also stops claims for slip and fall by spectator at event.

Shields v. RDM, LLC, 355 Ga. App. 409, 844 S.E.2d 297 (Ga. App. 2020)

State: Georgia: Court of Appeals of Georgia

Plaintiff: Kimberly and James Shields

Defendant: RDM, LLC d/b/a Georgia All Stars

Plaintiff Claims: negligence and loss of consortium, and seeking attorney fees, litigation costs, and damages

Defendant Defenses: Release and Recreational Use Statute

Holding: For the Defendant

Year: 2020

Summary

A mother watching her daughter perform in a gym tripped and fell breaking here leg stepping off mats. The gym raised the defenses of release, which the mother had signed at a previous event and the Georgia Recreational Use statute to successfully stop the claims of the mother.

Facts

…the record shows that Georgia All Stars offers tumbling instruction and provides competitive all-star cheerleading team programs in its Roswell, Georgia gym.3 On the day in question, November 19, 2015, Georgia All Stars hosted an exhibition of participants’ routines for parents to view in the practice area of the gym. And for this exhibition, the concrete gymnasium floor was covered with purple practice mats, and at least two vendors were there to promote their goods or services.

The Shieldses’ daughter was a participant in Special Twist, which is a “special needs all star cheer and dance team.” Special Twist is not part of the Georgia All Stars facility or teams, but is instead an independent 501 (3) (c) organization that, under previous ownership, had been permitted to practice in the Georgia All Stars facility with volunteer coaches and leadership. Georgia All Stars then adopted and continued the agreement, and Special Twist is charged nothing to use the facilities. Special Twist members were invited to participate in the exhibition on the night in question.

That evening, Special Twist performed an hour later than scheduled, and due to the number of people in attendance and the resulting crowd in the gym, spectators whose children had yet to perform were asked to wait outside. So, when Kimberly was eventually permitted inside the gym to watch Special Twist, she and “about a hundred [other] people” were “crammed into a corner” and stood to watch the performance.

When Special Twist finished performing, the coach took the members to watch other teams perform from the sidelines; but Kimberly and her daughter could not stay for the entire program due to another obligation they had early the next morning. As a result, Kimberly went to look for her daughter, who at the time was less than five feet tall. And as she was walking toward her daughter’s team, while attempting to look over other people and navigating through the crowd, Kimberly suddenly fell from the mats at a distance of what she described as two feet onto the concrete floor.

The area where Kimberly fell had not been marked off physically with rope, tape, or cones. And after she fell, a Georgia All Stars employee came over to assist Kimberly and called for an ambulance because she was unable to get up on her own. Then, at the hospital, Kimberly was diagnosed with four breaks between her leg and ankle that required surgery and many months of recovery.

Kimberly was familiar with the layout of the gym and the use of the purple mats because she watched her daughter perform or practice there on at least ten other occasions. But on the night in question, she noticed the mats were stacked in ways she had never seen before, and so she was not expecting the drop off where she fell. Nevertheless, it is undisputed that Georgia All Stars had parents sign releases containing warnings about potential hazards in the gym, and verbal warnings were given at the evening’s exhibition.

Prior to her daughter’s participation in a daily, one-week-long camp at the Georgia All Stars gym, Kimberly signed a medical-release form on July 30, 2015.5 In doing so, Kimberly understood that the medical release applied to her and her daughter, and that the document applied to her and her daughter’s participation in events at the gym.

The mother and her husband sued the gym for negligence and loss of consortium.

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

The court started out by reviewing the requirements for a contract to be effective under Georgia law.

The first step is to decide whether the language of the contract is clear and unambiguous. If so, the contract is enforced according to its plain terms, and the contract alone is looked to for meaning. Second, if the language of the contract is ambiguous in some respect, the rules of contract construction must be applied by the court to resolve the ambiguity. And finally, if ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.10

The court then looked at the four issues under Georgia’s law for a release to be valid.

Suffice it to say, the cardinal rule of contract construction is to “ascertain the intention of the parties, as set out in the language of the contract.” Additionally, it is the “paramount public policy of this state that courts will not lightly interfere with the freedom of parties to contract.” And a contracting party may “waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest.” Finally, exculpatory clauses in Georgia are “valid and binding, and are not void as against public policy when a business relieves itself from its own negligence.”

In this case the court found the release was valid. The plaintiff then argued the release was only valid for the camp the defendant’s daughter had participated in where the release was signed. However, the court noted there was nothing in the release that limited its application to a specific event or a date certain.

Always remember, there is no reason to limit the time frame of your release, doing so simply puts an end to your defenses when there is no t need to do so.

Find the release valid for a different time and location then the plaintiff argued the court then looked at whether the Georgia Recreational Use Act, OCGA § 51-3-20 et seq applied.

Recreational Use Statutes were created by legislatures to encourage land owners to open their land to other for recreational purposes. In general, the use must be free, or with no benefit to the land owner and for recreational purposes. Under Georgia’s law that meant:

(1) the nature of the activity that constitutes the use of the property in which people have been invited to engage, and (2) the nature of the property that people have been invited to use.” In other words, “the first asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act, and the second asks whether at the relevant time the property was of a sort that is used primarily for recreational purposes or primarily for commercial activity.”

Here, watching a child’s gymnastic routine was considered recreational by the court. There was also no fee charged by the defendant for the children to use the facility or for the parent to watch the child perform.

The plaintiffs argued that since there were vendors at the event, the defendant received a benefit for the use of the facility. The court looked at Georgia Supreme Court decisions over the type of charge and determined:

“[i]t is not the law—and we have never said that it was—that inviting people to use recreational property for recreational activities could still fail to qualify for immunity under the Act solely because the landowner had some sort of subjective profit motive in doing so.” Instead, the relevant question is whether “the landowner actually invited people onto the property (directly or indirectly) to do something ‘recreational,’ or whether people have instead been allowed onto the property to engage in commercial activity.” And in this case, the evidence shows that “both the nature of the activity and the nature of the property at the time of the [gymnastics exhibition] were purely recreational.”

Although the defendant may or may not have made some type of money from the vendors. There was no payment by the defendant to the facility to be there. There was no requirement that a purchase had to be made from a vendor or the vendors received any benefit from the exhibition. In fact, the court summed up its analysis of the facts in the case as:

To put it plainly, this case is the poster child for immunity under the RPA, and the trial court did not err in concluding that the Shieldses’ claims were barred under the statute.

The court stated both defenses would have stopped the claims of the plaintiffs. In fact, the court used an analysis I have never seen to describe the situation.

If the medical-release form is the belt of Georgia All Stars’s defense to this lawsuit, the protections afforded to property owners by the Recreational Property Act are its suspenders.

So Now What?

Too many times I see releases that have an ending date or a date when the release is no longer valid. Just the opposite needs to be made clear. That the release is valid for longer than one year. Many times, showing valid releases signed each year by the plaintiff is proof that the plaintiff knew and understood what they were signing, the risks and each release was another bar to the plaintiffs’ claims.

Do not limit the value of your release by putting a date on the release ending its effectiveness.

What do you think? Leave a comment.

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here.

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

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

@2023 Summit Magic Publishing, LLC SummitMagic@gmail.com

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Georgia Recreational Use Statutes

Posted: November 14, 2022 | Author: Recreation Law | Filed under: Georgia | Tags: Georgia Recreational Use Statutes, Recreational Use Statute | Leave a comment

Georgia Recreational Use Statutes

§ 51-3-20. Purpose of article 1

51-3-21. Definitions 1

51-3-22. Duty of owner of land to those using same for recreation generally 1

51-3-23. Effect of invitation or permission to use land for recreation 1

51-3-24. Applicability of Code Sections 51-3-22 and 51-3-23 to owner of land leased to state or subdivision for recreation 2

51-3-25. Certain liability not limited 2

51-3-26. Construction of article 2

§ 51-3-20. Purpose of article

The purpose of this article is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.” GA. Code 51-3-20 Purpose of article (Georgia Code (2022 Edition))

51-3-21. Definitions

As used in this article, the term:

(1) “Charge” means the admission price or fee asked in return for invitation or permission to enter or go upon the land.

(2) “Land” means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.

(3) “Owner” means the possessor of a fee interest, a tenant, a lessee, an occupant, or a person in control of the premises.

(4) “Recreational purpose” includes, but is not limited to, any of the following or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, aviation activities, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites.

History:

Amended by 2014 Ga. Laws 658, §2, eff. 10/1/2014.

GA. Code 51-3-21 Definitions (Georgia Code (2022 Edition))

51-3-22. Duty of owner of land to those using same for recreation generally

Except as specifically recognized by or provided in Code Section 51-3-25, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.

GA. Code 51-3-22 Duty of owner of land to those using same for recreation generally (Georgia Code (2022 Edition))

51-3-23. Effect of invitation or permission to use land for recreation

Except as specifically recognized by or provided in Code Section 51-3-25, an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby:

(1) Extend any assurance that the premises are safe for any purpose;

(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed; or

(3) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.

GA. Code 51-3-23 Effect of invitation or permission to use land for recreation (Georgia Code (2022 Edition))

51-3-24. Applicability of Code Sections 51-3-22 and 51-3-23 to owner of land leased to state or subdivision for recreation

Unless otherwise agreed in writing, Code Sections 51-3-22 and 51-3-23 shall be deemed applicable to the duties and liability of an owner of land leased to the state or any subdivision thereof for recreational purposes.

GA. Code 51-3-24 Applicability of Code Sections 51-3-22 and 51-3-23 to owner of land leased to state or subdivision for recreation (Georgia Code (2022 Edition))

51-3-25. Certain liability not limited

Nothing in this article limits in any way any liability which otherwise exists:

(1) For willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity; or

(2) On a date when the owner of land charges any individual who lawfully enters such land for recreational use and any individual is injured in connection with the recreational use for which the charge was made, provided that, in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for the lease shall not be deemed a charge within the meaning of this Code section.

History:

Amended by 2018 Ga. Laws 554, §1, eff. 7/1/2018.

GA. Code 51-3-25 Certain liability not limited (Georgia Code (2022 Edition))

51-3-26. Construction of article

Nothing in this article shall be construed to:

(1) Create a duty of care or ground of liability for injury to persons or property; or

(2) Relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this article to exercise care in his use of the land and in his activities thereon or from the legal consequences of failure to employ such care.

GA. Code 51-3-26 Construction of article (Georgia Code (2022 Edition))

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Shields v. RDM, LLC, 355 Ga.App. 409, 844 S.E.2d 297 (Ga. App. 2020)

Posted: November 14, 2022 | Author: Recreation Law | Filed under: Georgia, Indoor Recreation Center, Release (pre-injury contract not to sue) | Tags: All Stars, Floor Padding, Georgia, Georgia All Stars, Georgia Recreational Use Statute, Gym, Padding, Recreational Use Statute, Release, Slip and Fall, Tumbling | Leave a comment

Shields v. RDM, LLC, 355 Ga.App. 409, 844 S.E.2d 297 (Ga. App. 2020)

355 Ga.App. 409
844 S.E.2d 297

SHIELDS et al.
v.
RDM, LLC .

A20A0465

Court of Appeals of Georgia.

June 5, 2020

Costyn Law, Joseph M. Costyn, Zachary B. Johnson, for appellants.

Freeman Mathis & Gary, Wayne S. Melnick, Jason A. Kamp, for appellee.

Dillard, Presiding Judge.

Kimberly and James Shields appeal from the trial court’s grant of summary judgment to RDM, LLC d/b/a Georgia All Stars on claims based on personal injuries Kimberly sustained during an event at Georgia All Stars’s facility. Specifically, the Shieldses argue that the trial court erred in granting summary judgment to Georgia All Stars and, in doing so, finding that their claims were barred by the terms of a medical release form signed by Kimberly and the Georgia Recreational Property Act (”RPA”).1 For the reasons set forth infra , we affirm.

Viewed de novo in the light most favorable to the Shieldses (i.e. , the nonmoving parties),2 the record shows that Georgia All Stars offers tumbling instruction and provides competitive all-star cheerleading team programs in its Roswell, Georgia gym.3 On the day in question, November 19, 2015, Georgia All Stars hosted an exhibition of participants’ routines for parents to view in the practice area of the gym. And for this exhibition, the concrete gymnasium floor was covered with purple practice mats, and at least two vendors were there to promote their goods or services.

The Shieldses later filed suit against Georgia All Stars on October 4, 2017, asserting claims of simple negligence and loss of consortium, and seeking attorney fees, litigation costs, and damages. Georgia All Stars answered and filed a counterclaim against the Shieldses for breach of contract based on a medical release Kimberly signed some months prior to the incident in question. Georgia All Stars later moved for summary judgment on the Shieldses’ claims, contending that (1) Kimberly contractually released it, barring her claims of negligence, and (2) the claims were also barred by the Recreational Property Act.4 As a result, Georgia All Stars likewise argued that the Shieldses’ derivative claims should be dismissed. The trial court agreed that the Shieldses’ claims were barred by the medical release and the Recreational Property Act, granting summary judgment in favor of Georgia All Stars. This appeal follows.

1. For starters, the Shieldses argue that the trial court erred by concluding their claims were barred by a medical-release form Kimberly signed months prior to the night of the exhibition. We disagree.

The medical release provides, in relevant part:

In consideration of the services of Georgia All-Star Cheerleading, Inc., its owners, agents, officers, employees, and all other persons or entities acting in any capacity on their behalf (hereinafter collectively referred to as ”GA”), I hereby agree to release, discharge, and hold harmless GA on behalf of myself, my children, my parents, my heirs, assigns, personal representative and estates as follows:

1. I understand and acknowledge that the activities that I or my child engage in while on the premises or under the auspices of GA pose known and unknown risks which could result in injury, paralysis, death, emotional distress, or damage to me, my child, to property, or to third parties. The following describes some, but not all of those risks:

Cheerleading and gymnastics, including performances of stunts and use of trampolines, entail certain risks that simply cannot be eliminated without jeopardizing the essential qualities of the activity. Without a certain degree of risk, cheerleading students would not improve their skills and the enjoyment of the sport would be diminished. Cheerleading and gymnastics expose participants to the usual risk of cuts and bruises, and other more serious risks as well. Participants often fall, sprain or break wrists and ankles, and can suffer more serious injuries. Traveling to and from shows, meets and exhibitions, raises the possibilities of any manner of transportation accidents. In any event, if you or your child is injured, medical assistance may be required which you must pay for yourself.

2. I expressly agree and promise to accept and assume all of the risks, known and unknown, connected with GA related activities, including, but not limited to performance of stunts and the use of trampolines. …

3. I hereby voluntarily release, forever discharge, and agree to hold harmless and indemnify GA from any and all liability, claims, demands, actions or rights of action, which are related to, arise out of, or are in any way connected with my child’s participation in GA-related activities.

In considering the trial court’s grant of summary judgment in favor of Georgia All Stars, we note that summary adjudication is only proper when “there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.”6 And we review a grant or denial of summary judgment de novo , viewing all evidence in the light most favorable to the nonmoving party.7 Furthermore, the party opposing summary judgment is “not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact.”8

Here, the trial court’s grant of summary judgment in favor of Georgia All Stars was based, in part, on the medical release signed by Kimberly. The construction of this contract is, of course, “a question of law for the court”9 that involves three steps:

Suffice it to say, the cardinal rule of contract construction is to “ascertain the intention of the parties, as set out in the language of the contract.”¹¹ Additionally, it is the “paramount public policy of this state that courts will not lightly interfere with the freedom of parties to contract.”¹² And a contracting party may “waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest.”¹³ Finally, exculpatory clauses in Georgia are “valid and binding, and are not void as against public policy when a business relieves itself from its own negligence.”14

In this case, although Kimberly argues that the medical-release form was only applicable to her daughter’s participation in a temporary camp program, nothing in the language of the release limits it to any specific program, event, or time period. Indeed, the plain language of the release states that it is applicable to “the activities that I or my child engage in while on the premises or under the auspices of GA,” “all of the risks, known and unknown, connected with GA related activities,” and “participation in GA-related activities.” Accordingly, the trial court properly granted summary judgment to Georgia All Stars on the ground that the medical-release form signed by Kimberly barred the claim for negligence related to her fall inside the gym during her daughter’s participation in an exhibition.15 Likewise, the trial court also properly granted summary judgment on the derivative claims for loss of consortium and damages.16

2. If the medical-release form is the belt of Georgia All Stars’s defense to this lawsuit, the protections afforded to property owners by the Recreational Property Act are its suspenders. Indeed, the trial court correctly determined that the Shieldses’ claims are also foreclosed by the RPA,17 whose codified purpose is “to encourage both public and private landowners to make their property available to the public for recreational purposes by limiting the owners’ liability.”18

To that end, the RPA provides, inter alia , that

[e]xcept as specifically recognized by or provided in Code Section 51-3-25, an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby … [a]ssume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.19

The RPA defines “charge” to mean “the admission price or fee asked in return for invitation or permission to enter or go upon the land.”20 So, in order to determine whether immunity is available to a property owner under the RPA, a court must make a determination “of the true scope and nature of the landowner’s invitation to use its property.”21 And in making this determination, the analysis is “properly informed” by “two related considerations: (1) the nature of the activity that constitutes the use of the property in which people have been invited to engage, and (2) the nature of the property that people have been invited to use.”22 In other words, “the first asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act, and the second asks whether at the relevant time the property was of a sort that is used primarily for recreational purposes or primarily for commercial activity.”23

Here, the Shieldses do not dispute that the activity in question—attending a free exhibition of cheerleading participants’ routines—was “recreational” within the meaning of the RPA. Instead, they maintain that “a material question of fact exists [as] to the purpose behind [Georgia All Stars’s] allowance of [their] daughter’s use of its facility, which relates directly to whether the operation of [the] gym constitutes a commercial or recreational venture.” This argument is a nonstarter.

There is no evidence or suggestion that Georgia All Stars charged an admission price or fee to attend the exhibition in question. To the contrary, the evidence shows that Georgia All Stars did not charge the members of Special Twist anything to use the facilities for practice at any time.24 And the presence of vendors at the exhibition does not change our conclusion. Indeed, as our Supreme Court recently explained in Mercer University v. Stofer ,25 “[i]t is not the law—and we have never said that it was—that inviting people to use recreational property for recreational activities could still fail to qualify for immunity under the Act solely because the landowner had some sort of subjective profit motive in doing so.”²⁶ Instead, the relevant question is whether “the landowner actually invited people onto the property (directly or indirectly) to do something ‘recreational,’ or whether people have instead been allowed onto the property to engage in commercial activity.”²⁷ And in this case, the evidence shows that “both the nature of the activity and the nature of the property at the time of the [gymnastics exhibition] were purely recreational.”28 There is no evidence that any attendees were required to make purchases from the vendors, that the exhibition was held for the benefit of the vendors, or that Georgia All Stars in any way profited from vendor sales.29 To put it plainly, this case is the poster child for immunity under the RPA, and the trial court did not err in concluding that the Shieldses’ claims were barred under the statute.

For all these reasons, we affirm the trial court’s grant of summary judgment to Georgia All Stars.

Judgment affirmed.

Rickman and Brown, JJ., concur.

——–

Notes:

1
See OCGA § 51-3-20 et seq.

2
See, e.g. , Gayle v. Frank Callen Boys and Girls Club, Inc. , 322 Ga. App. 412, 412, 745 S.E.2d 695 (2013) (“A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (punctuation omitted)).

3 Georgia All Stars rents the gymnasium space and is an “owner” within the meaning of the Recreational Property Act. See OCGA § 51-3-21 (3) (defining “Owner” as the “possessor of a fee interest, a tenant, a lessee, an occupant, or a person in control of the premises”).

4
See OCGA § 51-3-20 et seq.

5 Although the deposition transcripts in the appellate record indicate that various exhibits were identified and used during the depositions, including the relevant medical-release form, no exhibits were included with these depositions. Nevertheless, Kimberly read the relevant language contained in the medical-release form into the record during her deposition testimony, and Georgia All Stars included a scanned photograph of what it purports to be the medical-release form with the same language in one of its pleadings below. And because it is undisputed that the form exists and was signed by Kimberly, we will consider the language as reflected by what is in the record before us.

6
Sadlowski v. Beacon Mgmt. Servs., Inc. , 348 Ga. App. 585, 587-88, 824 S.E.2d 42 (2019) (punctuation omitted); accord
Navy Fed. Credit Union v. McCrea , 337 Ga. App. 103, 105, 786 S.E.2d 707 (2016).

7
Sadlowski , 348 Ga. App. at 588, 824 S.E.2d 42 ; McCrea , 337 Ga. App. at 105, 786 S.E.2d 707.

8
Montgomery Cty. v. Hamilton , 337 Ga. App. 500, 502-03, 788 S.E.2d 89 (2016) (punctuation omitted); accord
Sadlowski , 348 Ga. App. at 588, 824 S.E.2d 42.

9
Bd. of Cm’rs of Crisp Cty. v. City Cm’rs of the City of Cordele , 315 Ga. App. 696, 699, 727 S.E.2d 524 (2012) ; accord
Shelnutt v. Mayor of Savannah , 349 Ga. App. 499, 505 (3), 826 S.E.2d 379 (2019).

10
Bd. of Cm’rs of Crisp Cty. , 315 Ga. App. at 699, 727 S.E.2d 524 (punctuation and footnotes omitted); accord
Y.C. Dev. Inc. v. Norton , 344 Ga. App. 69, 73 (1), 806 S.E.2d 662 (2017).

11
Stanley v. Gov’t Emps. Ins. Co. , 344 Ga. App. 342, 344 (1), 810 S.E.2d 179 (2018) (punctuation omitted); see also
Yash Sols., LLC v. New York Glob. Consultants Corp. , 352 Ga. App. 127, 140 (2) (b), 834 S.E.2d 126 (2019) (same).

12
2010-1 SFG Venture LLC v. Lee Bank & Trust Co. , 332 Ga. App. 894, 897 (1) (a), 775 S.E.2d 243 (2015) (punctuation omitted); accord
Neighborhood Assistance Corp. v. Dixon , 265 Ga. App. 255, 256 (1), 593 S.E.2d 717 (2004) ; My Fair Lady of Ga. v. Harris , 185 Ga. App. 459, 460, 364 S.E.2d 580 (1987).

13
2010-1 SFG Venture LLC , 332 Ga. App. at 897 (1) (a), 775 S.E.2d 243 (punctuation omitted); accord
Dixon , 265 Ga. App. at 256 (1), 593 S.E.2d 717 ; Harris , 185 Ga. App. at 460, 364 S.E.2d 580.

14
2010-1 SFG Venture LLC , 332 Ga. App. at 897 (1) (a), 775 S.E.2d 243 (punctuation omitted); accord
Dixon , 265 Ga. App. at 256 (1), 593 S.E.2d 717 ; Harris , 185 Ga. App. at 460, 364 S.E.2d 580.

15
See
Lovelace v. Figure Salon, Inc. , 179 Ga. App. 51, 53 (1), 345 S.E.2d 139 (1986) (holding that trial court properly granted summary judgment on plaintiff’s claims for personal injury due to alleged negligence when plaintiff signed a release in which she assumed the risk of injury and the defendant disclaimed any liability, and in which the plaintiff agreed not to file suit against the defendant for any injuries she might incur). Cf.
Harris , 185 Ga. App. at 461, 364 S.E.2d 580 (“Under this factual predicate, where a cause of action is based on the alleged negligence of the club, and there being a valid contractual waiver and release for any action arising out of [the plaintiff’s] use of the facilities, which sounded in negligence, the trial court erred in denying [the defendant’s] motion for summary judgment.”).

16
See
Lovelace , 179 Ga. App. at 53 (3), 345 S.E.2d 139 (“The right of the husband to recover for loss of consortium being dependent upon the right of the wife to recover, the court did not err in granting summary judgment to defendant as to the husband’s cause of action.”).

17
See OCGA § 51-3-20 et seq.

18
S. Gwinnett Athletic Ass’n Inc. v. Nash , 220 Ga. App. 116, 117 (1), 469 S.E.2d 276 (1996) ; accord
Gwinnett Cty., Ga. v. Ashby , 354 Ga.App. ––––, ––––, 842 S.E.2d 70, 73 (2020) ; see OCGA § 51-3-20 (“The purpose of this article is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.”).

19 OCGA § 51-3-23 (3) (emphasis supplied).

20 OCGA § 51-3-21 (1).

21
Mercer Univ. v. Stofer , 306 Ga. 191, 191, 830 S.E.2d 169 (2019).

22
Id. at 191, 830 S.E.2d 169.

23
Id. at 196 (2), 830 S.E.2d 169.

24
See
Nash , 220 Ga. App. at 117-18 (1), 469 S.E.2d 276 (“In the current case, the Association charges a little league registration fee, although this fee is waived as to any child in need of free service. The fee covers expenses such as uniforms for the children, umpires, lights, water and sanitation. Because the fee is needed to defray the costs of operating the league, and is not an admission price required for permission to enter onto the land, it is not a charge to the public as contemplated by the Act.”).

25 306 Ga. 191, 830 S.E.2d 169 (2019).

26
Id. at 200 (3), 830 S.E.2d 169 ; accord
Mercer Univ. v. Stofer , 354 Ga. App. 458, 461, 841 S.E.2d 224, 226 (1) (2020) (“Importantly, a landowner’s subjective profit motivations are irrelevant to the analysis.”).

27
Stofer , 306 Ga. at 196 (2), 830 S.E.2d 169.

28
Stofer , 354 Ga. App. at 461, 841 S.E.2d 224, 227-28 (1).

29
See id. at 462, 841 S.E.2d 224, 228 (1) (“To the extent that the concert series may have increased Mercer [University]’s name recognition and good will in the community, potential student interest in attending the university, or the likelihood that it would receive future grant funding, such speculative considerations and subjective motivations are not relevant to our analysis. Notably, there is no evidence that Mercer made a profit from the vendors, the sponsors, or … branded give-aways, nor is there evidence that it received a direct financial benefit from the concert series whatsoever. The fact that there might have been an indirect commercial benefit is not sufficient to create a factual question.” (citation omitted)).

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