Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.Posted: March 28, 2016
Defendant bungee jump operator failed to attach the bungee to the platform. Plaintiff fell into an airbag that had been partially deflated due to the bungee hitting the back first. TV news crew recorded it all.
Plaintiff: Loren Martin Hatch
Defendants: V.P. Fair Foundation, Inc. Respondent/Cross-Appellant, and Northstar Entertainment, Inc.,
Holding: for the plaintiff
Honestly, this case is a summary of the issues I’ve been pushing for years. Better, you might call it, what you need to do as a defendant to make sure the plaintiff wins no matter how great your defense counsel is. Believe me, the defense team in this case was awesome; they just had an uphill battle. Consequently, I wish I had read it years before this to have shoved us in the right direction earlier.
There are two different defendants in this case. Sometimes the decision looks at both defendants equally and sometimes individually; consequently, it gets confusing. The defendant V.P. Fair Foundation, Inc., puts on an annual multi-day fair in downtown St. Louis to celebrate the Fourth of July.
Defendant V.P. Fair Foundation, Inc., (Fair) hired the defendant Northstar Entertainment, Inc., (Northstar) to provide a bungee jumping attraction for the fair.
The plaintiff was the first person to jump the day of the incident. The plaintiff arrived when the attraction opened but before any employees of Defendant, Northstar has arrived. When the Northstar employees arrived, the Northstar employees weighed the plaintiff, had him sign a release of liability and a log book.
The plaintiff was placed in a harness around his ankles and waist and fastened the bungee cord to the harness. The plaintiff then walked to the bungee cage and entered the cage with a Northstar employee who was the jumpmaster, a reporter and a cameraman for the local TV station. A crane lifted the cage into the air 170 feet above the ground. The cage door was opened; the bungee cord straightened out, and the plaintiff was told he was “was locked in and safe to jump.”
Unfortunately, no one attached the bungee cord to the crane, and when Hatch leaped off the platform, he plunged 170 feet to the ground. Initially, Hatch fell head-first. Although not attached, the bungee cord momentarily snagged on the bungee cage and stretched out. Breaking loose, the cord recoiled and struck Hatch as it passed him. The force of the recoil apparently reversed Hatch’s position so that his descent was upright. The bungee cord and tackle, together weighing between seventy-five and eighty pounds, reached the airbag first and partially deflated it prior to his landing. After landing feet-first in the airbag, Hatch was taken to the hospital. As a result of the fall, Hatch sustained serious injuries to his back, legs, and shoulders.
A tape of the event was shown to the jury.
The plaintiff suffered serious back, leg and shoulder injuries. He was eventually fired from his job as an accountant because he missed so many days at work because he could not concentrate.
The plaintiff sued the defendants on multiple negligence theories. Prior to trial, several motions for summary judgment were granted for the defendants. At trial, the plaintiff’s case was down to two “questions of whether Northstar acted recklessly and whether bungee jumping constituted an inherently dangerous activity were submitted to the jury.” The jury found that bungee jumping was inherently dangerous and awarded the plaintiff $500,000.
The defendants filed a motion for J.N.O.V. (see Skiing collision in Utah were the collision was caused by one skier falling down in front of the other skier for a definition of J.N.O.V.) The court granted the defendant’s Motion for Judgment Not Withstanding the Verdict.
Everyone then appealed.
Analysis: making sense of the law based on these facts.
The court looked at a couple of factual issues. A safety manual was created by an association of bungee jumping businesses. The defendant Northstar adopted the manual. However, the safety manual was ignored by the Northstar employees. The court specifically pointed out the following issues the Northstar employees did not follow from the safety manual.
The manual called for a crew of six, Northstar supplied only a crew of five; the manual specified that the controller must be twenty-five years old, Northstar’s controller was eighteen years old; the manual required every piece of equipment to be inspected daily and recorded on a checklist, there was no record of an inspection on July 5, 1993, indicating that Northstar’s employees either failed to inspect the equipment, failed to record the inspections, or failed to do both; the manual required a test jump before opening the bungee jump to the public, Northstar failed to conduct a test jump on the day of Hatch’s fall.
The court then looked at the plaintiff’s appeal issues starting with the J.N.O.V on the Premises Liability claim. The plaintiff’s suit was based on the duty a landowner owes to people on its land, in this case the Defendant’s Fair’s duty to the plaintiff.
The plaintiff was classified as an invitee of the Defendant Fair. That means the defendant owed the plaintiff a duty of ordinary and reasonable care to prevent injury to the plaintiff. That care can be eliminated if the landowner hires an independent contractor to do work rather than the landowner himself. The liability is shifted to the contractor. In this case Defendant Fair hired Defendant Northstar and shifted the liability of a bungee jump on the land of Defendant Fair to Defendant Northstar.
However, hiring an independent contractor is not an absolute shift of liability.
Nevertheless, there are at least two exceptions under which a non-negligent landowner may be held vicariously liable for the negligence of an independent contractor: the landowner control exception and the inherently dangerous activity exception.
The issues in this case were the inherently dangerous activity exception.
Under this exception, a landowner who hires an independent contractor to perform an inherently dangerous activity has a nondelegable duty to take special precautions to prevent injury from the activity. The landowner “remains liable for the torts of the contractor, simply for commissioning the activity. The liability attaches without any need for showing that the employer is in any respect negligent. It is purely vicarious.
Several theories abound about using contractors to shift liability; however, they are rarely if ever successful. It may shift liability initially; however, the person hiring the independent contractor can always be found liable for something if the independent contractor was negligent.
The theory upon which this liability is based is that a person who engages a contractor to do work of an inherently dangerous character remains subject to an absolute, nondelegable duty to see that it is performed with that degree of care which is appropriate to the circumstances, or in other words, to see that all reasonable precautions shall be taken during its performance, to the end that third persons may be effectually protected against injury.
Not brought up in this trial but important is even if you shift the liability to an independent contractor, you are still liable for hiring the wrong contractor. In some state’s proof you hired, the wrong contractor is the independent contractor was negligent.
The court then looked at the issues of the J.N.O.V.
An appellate court will affirm the entry of a judgment notwithstanding the verdict only when all of the evidence and reasonable inferences drawn therefrom are so strongly against the plaintiff’s case that there is no room for reasonable minds to differ and the defendant was entitled to judgment as a matter of law. Only when the plaintiff has failed to make a submissible case should the trial court grant a motion for judgment notwithstanding the verdict. Id. To determine whether a plaintiff, who obtained a jury verdict, has made a submissible case, we view the evidence in a light most favorable to the plaintiff, giving plaintiff the benefit of all reasonable inferences.
The issue then fell on whether or not bungee jumping was an inherently dangerous activity. The trial court found that bungee jumping could be performed safely; therefore, it was not an inherently dangerous activity.
Under Missouri’s law an inherently dangerous activity is “an activity that necessarily presents a substantial risk of harm unless adequate precautions are taken.” Taken from the Missouri Jury Instructions, MAI 16.08.
Proof of the fact bungee jumping was an inherently dangerous activity was found by the court in the release the Defendant Northstar had the plaintiff sign.
Northstar’s release form contained the following language:
The participant is fully aware that bungee-jumping and all associated activities is a calculated risk sport and contains inherent risk and dangers (including serious injury or death) that no amount of care, caution, instruction, or expertise can eliminate. [Emphasize added]
No other evidence was looked at by the court to prove the activity inherently dangerous. Because the release said the sport had inherent risks the court found the sport was inherently dangerous!
The next issue was whether the action of failing to attach the bungee cord to the cage was collateral negligence. ”Collateral negligence occurs when the negligence is unusual or foreign to the normal contemplated risks of performing the activity.” If the actions of Defendant Northstar were collateral, then Defendant Fair would not be vicariously liable. Meaning if the actions of a contractor were collateral the landowner was not liable.
The issue then becomes should the landowner have contemplated that the Defendant Northstar would have failed to hookup the bungee cord to the cage. “…the proper focus for the factfinder is whether the landowner contemplated or should have contemplated the type of negligence committed by the independent contractor.
The test is whether or not the independent contractor’s acts were or should have been within the contemplation of the landowner. The Restatement provides that a landowner may be required to contemplate abnormal or unusual kinds of negligence if the circumstances under which the activity is performed give the landowner warning of special reasons to take precautions or some special risk of harm to others inherent in the activity.
The court found that the landowner, Defendant Fair, should have contemplated that the employee of Defendant Northstar would have failed to hook the bungee cord to the cage.
The participant’s safety in making a bungee jump depends in large part on the security of the bungee cord. The risk that a participant could be injured as a result of any failure of the cord, its attachment, or the persons operating the jump is a peculiar risk that V.P. Fair should have contemplated. Accordingly, Hatch made a submissible case under the inherently dangerous activity exception.
The court then found the entry of the J.N.O.V. was incorrect.
The next issue the court touched upon was a claim by the plaintiff whom the defendants were operating as a joint venture. A joint venture is a legal entity used where to business or people join together for a limited purpose to accomplish a goal. “A joint venture is an “association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill and knowledge.”
A joint venture requires:
(1) an express of implied agreement among the members; (2) a common purpose to be carried out by the members; (3) a community of pecuniary interests in that common purpose; and (4) an equal voice, giving an equal right of control in the direction of the enterprise.
The trial court found, and the appellate court agreed there was no joint venture here.
…there was no agreement between V.P. Fair and Northstar to share profits and losses from the bungee jumping operation and because V.P. Fair did not exercise sufficient control over the bungee jumping operation.
The court could not find a joint venture between Defendant Fair and Defendant Northstar. The Appellate court upheld the trial court’s granting of the defendants’ Motion for Summary judgment on this issue.
The court then went and reviewed the issues brought up by the Defendant’s appeal. The defendants argued that Missouri does not recognize a claim for recklessness.
Recklessness looks to the tortfeasor’s state of mind. Recklessness is an aggravated form of negligence which differs in quality, rather than in degree, from ordinary lack of care. It is applied to conduct which is negligent, rather than intentional, but which is so far from a proper state of mind that it is treated in many respects as if it were so intended.
The court then differentiated recklessness from negligence.
Negligence is one kind of tort, an unintentional injury usually predicated upon failure to observe a prescribed standard of care while a willful, wanton, reckless injury is another kind of tort, an intentional injury often based upon an act done in utter disregard of the consequences. Reckless conduct may be negligent in that it is unreasonable but it is and must be something more than unreasonable, “it must contain a risk of harm to others in excess of that necessary to make the conduct unreasonable and therefore, negligent.” “The actor’s (defendant’s) conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him.”
The release signed by the plaintiff stopped the plaintiffs simple or ordinary negligence claims. However, under Missouri’s law, like the majority of states a release cannot bar a claim for more than negligence. “There is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.”
Since the release only stopped the negligence claim the recklessness was a valid claim under Missouri’s law.
The next issue raised by the Defendants was remittitur. Simply stated remittitur is a request to reduce the damages awarded by the plaintiff because they are too great. For a court to reduce excessive damages it must find:
(1) present and future loss of income, (2) medical expenses, (3) plaintiff’s age, (4) the nature and severity of the injuries, (5) economic factors, (6) awards given in similar cases, and (7) the superior opportunity of the trial court and jury to appraise plaintiff’s injuries and other damages.
The court found that both the damages awarded by the jury were substantiated by the injury and damages the plaintiff had suffered, and none of the defendants failed to prove to the judge the requirements for a remittitur were met. “We do not find that the verdict is so grossly excessive as to shock the conscience or that both the jury, and the judge abused their discretion.”
The case was sent back to the trial court for the judgment to be reinstated against the defendants in the amount of $500,000.00.
So Now What?
First if you are going to adopt a manual, a standard, a program an emergency plan, you have to understand it, explain it and use it. Saying you are trying to be safe while ignoring safety issues does not work. Worse, as in this case, adopting the manual was proof that what you did was wrong, and proof that was you did was more than simple negligence. It showed the appellate court that you failed the plaintiff miserably because it was there in black and white.
Second the whole theory that you can shift liability away from yourself by hiring an independent contractor does not work. In this case, that act increased the liability of the defendant and provided no defense because the actions of the defendant who was negligent were not controllable by the other defendant.
If it is your land, your operation, your business, your liability may change its name, however, it never leaves. Instead of being sued for negligence, you will be sued for negligently hiring a bad contractor. Instead of having a defense to litigation you will be liable with no defense because you had no control over the independent contractor.
If you walk into court looking bad, or in this case having a video prove you are bad, your chances of winning are slim.
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By Recreation Law Recfirstname.lastname@example.orgJames H. Moss
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