Motion for Summary Judgment failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.Posted: August 1, 2016
Negligence per se is an elusive legal issue that generally prevents a release to be effective as in this case. Understanding the issue for your state is important.
State: Pennsylvania, United States District Court for the eastern District of Pennsylvania
Plaintiff: Jean Knarr & Lester Knarr
Defendant: Chapman School of Seamanship
Plaintiff Claims: negligence per se
Defendant Defenses: release and plaintiff failed to plead enough facts to establish a negligence per se case
Holding: for the plaintiff
Negligence per se cases are arising with more frequency. They are a way the plaintiff can beat the release in recreational activities. In most states, a successful negligence per se claim is not dismissed because of a release, and the plaintiff can go to trial. On top of that, Juries take a dim view of a defendant who did not follow the law or rules for his industry.
In this case, the plaintiff (wife) enrolled in a seamanship school with the defendant in Florida. (Thus the reason why the Federal District Court was hearing the case.)
The defendant filed a motion for summary judgment based on the release; the plaintiff had signed and argued the negligence per se claims of the plaintiff should be dismissed because the plaintiff failed to present evidence that the defendant had violated a rule or statute. This was the second motion for summary judgement; the first was over the issues of the release and the simple or ordinary negligence claims.
Analysis: making sense of the law based on these facts.
Florida’s law allows a release to stop a negligence claim. (See Release fails under Florida’s law because it is only an assumption of risk form, not a release in a Go-Kart case.; Trifecta of stupidity sinks this dive operation. Too many releases, operation standards and dive industry standards, along with an employee failing to get releases signed, sunk this ship on appeal.; Release for bicycle tour wins on appeal but barely; Electronic release upheld in Florida federal court for surfing on a cruise ship, Florida statute that allows a parent to release a minor’s right to sue)
However, Florida does not allow a release to stop a negligence per se claim.
In denying an earlier motion for summary judgment, the Honorable Marvin Katz concluded that although the indemnification agreement protected the Defendant from liability arising from mere negligence, it could not protect itself from claims arising from negligence per se.
Under Florida’s law, negligence per se is defined as:
According to the Supreme Court of Florida, negligence per se is established if there is “a violation of any … statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury.”
Negligence per se under Florida’s law was defined broadly: Florida’s state courts have concluded that violations of other legal pronouncements, other than statutes, amount to negligence per se. Negligence per se was applied to violation of Florida Department of Health and Rehabilitative Service Rules, violations of administrative regulations, and FAA regulations. (Compare this to the limited application of negligence per se in a Colorado rafting case in 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.)
The issue here was whether any US Coast Guard regulation applied to this defendant and the ship the injury occurred upon and whether the regulation applied to the ladder, specifically.
Here the court found that the boat was of the size the regulation was applied to. The court also found the boat was “for hire” because the plaintiff had paid to be on the boat to take the seamanship course. The final issue was whether the regulation, which was a standard created by ANSI, (American National Standards Institute) applied in this case.
The court found the regulation was specifically adopted for situations, specifically like this:
One could hardly imagine a set of ship regulations more specifically written for the benefit of passengers for hire than ones dealing with escape, as evidenced by certain events that occurred 88 years ago today in the North Atlantic.
The reference was to the sinking of the Titanic.
The final issue was whether the claims of the plaintiff, as plead, fit the requirement for negligence per se, an injury the regulations were designed to prevent. Here again, the court found the pleadings were not specific, but outlined enough of the issues to meet the definitions of a ladder that was dangerous. This was based more on the failure of the defendant to show the ladder met the ANSI and subsequent US Coast Guard regulations.
Our conclusion would be different, of course, if the record contained either some specific information on the ladder’s actual set-back distance, or on the precise features of the ladder that allegedly caused the accident. At this point, however, we have neither. It thus appears that the case will turn on a resolution of disputed facts, some of which will, no doubt, be the subject of expert opinions.
Consequently, the case was allowed to proceed.
So Now What?
If you were to speculate, this boat was probably a sail boat created for some owner. It has been converted to a vessel for hire when the classes were offered by the owner. As such, no standard applied to the vessel as a pleasure vessel, when it was being built; however, now that it fit the regulations, it had to meet the regulations.
Another scenario could be the vessel was old enough that it was built before the regulations were in effect.
Both scenarios can be found in outdoor programs daily. Land is purchased for a recreation program with buildings already on the land. No emergency exit from the second floor, no fire alarms, all could lead to losing a law suit.
A release is a great line of defense against claims, but fraud, gross negligence and as seen here, negligence per se will not be stopped by a release. Consequently, risk management and education is a never-ending requirement for a recreation provider to be on the lookout for.
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By Recreation Law Recfirstname.lastname@example.orgJames H. Moss
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