Iowa Supreme upholds release for injuries due to an accident on a zip line.

However, case goes to trial based on plaintiffs’ claims of gross negligence, which do not exist under Iowa law?

Lukken v. Fleischer, 962 N.W.2d 71 (Iowa 2021)

State: Iowa, Supreme Court of Iowa

Plaintiff: Thomas Lukken

Defendant: Korby L. FLEISCHER, individually and d/b/a Mt. Crescent Ski Area ; Samantha Fleischer, individually and d/b/a Mt. Crescent Ski Area; Mt. Crescent Ski Area, an unknown business entity; Safehold Special Risk, Inc., an Illinois corporation; Challenge Quest, LLC, an Oklahoma Corporation d/b/a Challenge Quest, LLC ; and Kirk Gregory Engineering, P.C., a Texas Corporation; KG Structural Solutions, LLC, a Texas Corporation; and Atlas Engineering, LLC, a Nebraska Corporation

Plaintiff Claims: Negligence and strict liability, and requesting punitive damages

Defendant Defenses: Release

Holding: Granted to specific defendants and reversed as to others

Year: 2021

Summary

A zipline braking system was not reset before the plaintiff slammed into the end. The plaintiff sued the original designer and installer of the zipline who had not designed or had anything to do with the new braking system that failed.

The court also found that the release protecting the zipline operator would not protect the zipline operator from claims of greater than ordinary negligence. What is confusing is Iowa does not recognize gross or willful and wanton negligence as a legal claim.

Facts

Thomas Lukken stepped off an elevated platform and sped down a zip line at the Mt. Crescent Ski Area. An employee at the end of the zip line had failed to reset the zip line’s braking system after the previous rider exited. By the time the employee realized his mistake, it was too late. Lukken slammed into a wooden pole at the base of the zip line and fractured his neck. He sued the zip line’s original designer and its owner. The district court dismissed the claims against the zip line’s designer primarily based on the fact that the braking system that failed to stop Lukken had been completely replaced by a different supplier before the incident. And the district court dismissed the claims against the zip line’s owner based on a liability waiver that Lukken signed before riding. Lukken appeals.

Double Diamond, Inc. d/b/a Mt. Crescent Ski Area (Mt. Crescent) operates a skiing and sledding business in winter months and offers other outdoor recreational activities, including zip lining, in warmer months. The zip line begins on a twenty-four-foot-high platform atop the ski hill. Harnessed riders travel down the zip line reaching speeds of up to forty miles per hour before landing on a lower thirty-three-foot-high landing platform at the bottom of the hill. The zip line extends 1576 feet from start to finish.

In April 2014, Mt. Crescent contracted with Challenge Quest, LLC, to build and install the zip line. Challenge Quest designed the zip line to have enough slack so that riders would nearly run out of momentum before reaching the landing platform. To bring riders nearing the landing platform to a complete stop, a small device with wheels that rode on top of the zip line and connected the rider’s harness to the zip line (referred to as a “trolley”) made contact with a padded brake block. The brake block connected to a rope-pulley system. An operator on the landing platform held onto a rope connected to the pulley and applied manual resistance to bring riders to a complete stop. This rope-braking feature slowed riders as the rope ran through the operator’s hands, with operators tightening or releasing their hold as needed to apply the appropriate amount of friction. Because slack in the zip line could cause riders to slide back away from the landing platform once a rider’s forward momentum stopped, the brake block also featured a capture arm that prevented riders from backsliding. The operator used the same rope-pulley system to pull stopped riders all the way onto the landing platform. After an operator unhooked a completed rider on the landing platform, the operator would use the same rope-pulley system to manually move the brake block back out for the next rider.

Challenge Quest completed construction of the zip line in August 2014. It then provided, as contemplated by the parties’ contract, a four day “site specific high technical training for full time staff,” including training on the braking system, after which it turned full control of the zip line over to Mt. Crescent. After the zip line opened to the public, Mt. Crescent’s operators in several instances failed to sufficiently slow riders using grip friction on the rope to control the brake block. Riders arrived at the landing platform at speeds in excess of six miles per hour, the maximum recommended by a trade association called the Association for Challenge Course Technology (ACCT), which develops safety standards for zip line courses. In some cases, these riders collided with the Mt. Crescent employees engaged in stopping them. A handful of injuries resulted, the most serious apparently being an injured ankle.

Mt. Crescent decided to consult with a different contractor about a different braking system than the original one Challenge Quest had installed. This new contractor, Sky Line, inspected Mt. Crescent’s zip line and recommended a “zipSTOP” braking system. Mt. Crescent had initially considered a zipSTOP braking system as part of the zip line that Challenge Quest designed but decided against it. Mt. Crescent agreed with Sky Line’s recommendation and hired Sky Line to install the zipSTOP system on its existing zip line. Sky Line completed the installation in July 2016. Mt. Crescent informed Challenge Quest of none of this.

Like the original braking system, the zipSTOP braking system also uses a brake block to bring riders to a complete stop. But instead of rope pulleys controlling the brake block using an operator’s hand resistance, the brake block uses a magnetic-resistance wheel to bring riders to a complete stop. The brake block automatically moves back to the correct position on the zip line in preparation for the next rider, but an operator must manually redeploy it before it will move.

Lukken rode Mt. Crescent’s zip line in October 2016 with the zipSTOP braking system in place. The Mt. Crescent employee on the landing platform forgot to redeploy the brake block after the rider ahead of Lukken finished. Lukken was already whizzing down the zip line toward the landing platform by the time the operator realized his mistake. The operator’s tardy redeployment of the zipSTOP braking system didn’t permit enough time for it to stop Lukken, and he crashed into a wooden pole at the base of the zip line and suffered a neck fracture.

The district court granted summary judgment in favor of Challenge Quest, holding that it breached no duty to Lukken and that it didn’t cause Lukken’s injuries. The district court reasoned that Challenge Quest owed no duty to Lukken because it had completed its work under its contract and transferred control of the zip line to Mt. Crescent by the time of the incident, and, further, that its actions were not the “cause” of Lukken’s injuries because it didn’t install the allegedly defective braking system in place when Lukken was injured.

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

The first claim pleaded by the plaintiff was the builder of the zip line owed him a duty of care. Under Iowa law “To maintain a claim for negligence, Lukken must prove that Challenge Quest owed a duty to protect him from the harm he suffered.”

To prove his claim the plaintiff argued:

Lukken contends that Challenge Quest owed a bevy of duties to Mt. Crescent, including a duty (1) to design and construct a zip line that complied with industry standards, (2) to provide Mt. Crescent appropriate instruction on how to operate the zip line, (3) to address Mt. Crescent’s safety concerns about the zip line, (4) to ensure that Mt. Crescent had procedures in place to train new employees, and (5) to address safety issues with Mt. Crescent arising in future safety inspections. Lukken argues that Challenge Quest owes each of these duties to Mt. Crescent and, based on the risk of physical harm to Mt. Crescent’s zip line riders, these duties extend to Lukken as well.

The court looked at the issue as one of control. Who had control of the zip line after Challenge Quest was no longer involved in the operation, maintenance or repair of the zipline.

Since Challenge Quest was no longer servicing the zip line and had been replaced by another company, Challenge Quest had no control over the zip line. That lack of control extended both to the design, installation and operation of the zipline as well as its operation on the day the plaintiff was injured.

So too here, once Mt. Crescent decided to replace the braking system, any machine- or human-related flaws in that system ceased to be Challenge Quest’s responsibility. Challenge Quest’s braking system didn’t fail; it no longer existed. Challenge Quest likewise had no connection to the actions of Mt. Crescent’s employee who failed to reset the brake in time to stop Lukken. The employee didn’t work for Mt. Crescent when Challenge Quest conducted its four-day technical training for Mt. Crescent employees prior to Mt. Crescent opening the course to the public. Challenge Quest had no role in the employee’s hiring, supervision, or instruction.

That lack of control extended to the new braking system. Challenge Quest did not design, install or operate the new braking system that was not reset properly on the day of the accident.

And Challenge Quest neither designed nor constructed the braking system that the employee failed to reset when Lukken rode the zip line. By that time, Sky Line’s zipSTOP braking system had replaced Challenge Quest’s original system. Challenge Quest owed no duty of care to prevent Mt. Crescent from changing the braking system. Because Challenge Quest owed no duty of care associated with the zip line’s braking system after its own braking system had been uninstalled, no cause of action for negligence exists as a matter of law, and the district court thus properly granted summary judgment in Challenge Quest’s favor.

Because there was no control over the zipline or braking system, Challenge Quest could not be held liable for the failure of the new braking system.

The Supreme Court then reviewed the dismissal of the complaint against the ski area based on the release.

Under Iowa law, releases are valid.

Exculpatory clauses, sometimes referred to as “hold harmless” clauses, relieve parties from responsibility for the consequences of their actions. “[W]e have repeatedly held that contracts exempting a party from its own negligence are enforceable, and are not contrary to public policy.” An enforceable waiver must contain “clear and unequivocal language” notifying a casual reader that by signing, she agrees to waive all claims for future acts or omissions of negligence. An intention to absolve a party from all claims of negligence must be clearly and unequivocally expressed in the waiver.

The court in its analysis of the arguments made by the plaintiff veered into the idea that a release under Iowa law cannot stop a claim for greater than normal negligence, (gross or willful and wanton negligence).

However, Iowa does not recognize any negligence other than ordinary negligence.

“Gross negligence” is not a distinct cause of action under our common law, but instead is a measure of conduct in a cause of action for negligence. “In this state, as is well known, the actionable character of negligence is not dependent upon its ‘degree,’ and the ancient differentiation into ‘gross,’ ‘ordinary,’ and ‘slight’ has come to mean little more than a matter of comparative emphasis in the discussion of testimony.” Under our common law “there are no degrees of care or of negligence in Iowa, and we thus do not recognize a tort cause of action based on “gross” negligence as distinct from “ordinary” negligence.

The court then wove through an intricate review of statute and case law to determine that although Iowa does not recognize greater than ordinary negligence, if greater than ordinary negligence is found in this case, the release will not stop a claim for it.

We therefore hold that the contractual waiver limiting Mt. Crescent’s liability is unenforceable to the extent it purports to eliminate liability for the willful, wanton, or reckless conduct that Lukken has alleged. To the extent Lukken’s claims against Mt. Crescent involve culpability that constitutes only negligent conduct (regardless of any degree of negligence), his claims fail as a matter of law based on the liability waiver.

So Now What?

The release could have stopped several more of the claims if it had been written better. Besides the ski area, the release could have protected the builder of the zip line and anyone who worked on the zip line after it was built.

As to the release, the Iowa Supreme Court seems to have not muddied the water but moved the entire river to a different stream bed. I do not know how to interpret a case where a release cannot apply to a legal claim that does not exist.

However, this analysis is not that far outside of the laws in most other states. It is just how the court got to this position that is confusing.

What do you think? Leave a comment.

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

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