Boisson v. Arizona Board Of Regents, et. al., 236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

Boisson v. Arizona Board Of Regents, et. al., 236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

Elizabeth Boisson, individually and on behalf of all statutory beneficiaries, Plaintiff/Appellant, v. Arizona Board Of Regents, a public entity; State of Arizona, a public entity; Nanjing American University, L.L.C., an Arizona corporation doing business as, or under the trade name of Yangtze International Study Abroad, Defendants/Appellees.

No. 1 CA-CV 13-0588

Court of Appeals of Arizona, Division One

236 Ariz. 619; 343 P.3d 931; 2015 Ariz. App. LEXIS 36; 708 Ariz. Adv. Rep. 7

March 10, 2015, Filed

SUBSEQUENT HISTORY: Review denied by , , 2015 Ariz. LEXIS 348 (Ariz., Dec. 1, 2015)

PRIOR HISTORY: [***1] Appeal from the Superior Court in Maricopa County. No. CV2010-025607. The Honorable Douglas L. Rayes, Judge.

DISPOSITION: AFFIRMED.

COUNSEL: Knapp & Roberts, P.C., Scottsdale, By Craig A. Knapp, Dana R. Roberts, David L. Abney, Counsel for Plaintiffs/Appellants.

Garrey, Woner, Hoffmaster & Peshek, P.C., Scottsdale, By Shawna M. Woner, Stephanie Kwan, Counsel for Defendants/Appellees Arizona Board of Regents and State of Arizona.

Udall Law Firm, LLP, Tucson, By Peter Akmajian, Janet Linton, Counsel for Defendants/Appellees Nanjing American University, L.L.C., dba Yangtze International Study Abroad.

Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Andrew W. Gould joined.

JUDGES: THUMMA, Judge.

OPINION BY: THUMMA

OPINION

[*621] [**933] THUMMA, Judge:

P1 Elizabeth Boisson appeals from a judgment dismissing a wrongful death negligence claim arising out of the death of her son Morgan Boisson. The judgment was based on the ground that Defendants owed no duty to Morgan when, while studying abroad in China, he traveled to Tibet and died of altitude sickness. Finding no error, this court affirms.

FACTS1 AND PROCEDURAL HISTORY

1 The superior court struck supplemental filings relating to the summary judgment [***2] briefing and, on Elizabeth’s motion, struck portions of certain declarations filed by Defendants. Because the judgment is properly affirmed on other grounds, this court does not address these issues or the finding that there were no disputed issues of material fact. See Monroe v. Basis School, Inc., 234 Ariz. 155, 157 n.1 ¶ 3, 318 P.3d 871, 873 n.1 (App. 2014).

P2 Morgan was an undergraduate student at the University of Arizona, which is governed by the Arizona Board of Regents (ABOR). In the fall of 2009, Morgan and 16 other university students spent the semester studying in China at Nanjing American University (NAU). This study-abroad program, sometimes referred to as Yangtze International Study Abroad (YISA), was a collaborative effort between ABOR and NAU.

P3 While in China, the study-abroad program included school-sponsored trips to various cities in China with NAU faculty. At other times, the students organized their own trips. During a student-organized trip, 14 study abroad students — including Morgan — flew to Lhasa, Tibet. The students then drove to the Mount Everest base camp a few days later. While at base camp, which is approximately 18,000 feet above sea level, Morgan developed and then died of altitude sickness.

P4 As relevant here, Elizabeth filed a complaint [***3] against the State of Arizona, ABOR and NAU (collectively Defendants), asserting a wrongful death negligence claim pursuant to Arizona Revised Statutes (A.R.S.) sections 12-611 to -613 (2015).2 After discovery, motion practice and oral argument, the superior court granted Defendants’ motions for summary judgment on the ground that Defendants “owed no affirmative duty of care to Morgan while he was a participant on the subject trip to Tibet.” After entry of judgment, Elizabeth timely appealed. This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, [*622] [**934] and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

2 Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated.

DISCUSSION

I. Duty In An Arizona Common Law Negligence Claim.3

3 Because the parties do not claim that any other law applies, this court applies Arizona law. See Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 501, 917 P.2d 222, 230 (1996).

P5 Although described in various ways, [HN1] a plaintiff alleging a claim for negligence under Arizona common law has the burden to show: (1) duty; (2) breach of that duty; (3) cause-in-fact; (4) legal (or proximate) causation and (5) resulting damages. See, e.g., Gipson v. Kasey, 214 Ariz. 141, 143 ¶ 9, 150 P.3d 228, 230 (2007); Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983); Wisener v. State, 123 Ariz. 148, 149, 598 P.2d 511, 512 (1979). “The first element, whether a duty exists, is a matter of law for the court to decide.” Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230 (citation omitted).

[HN2] The existence of a duty of care is [***4] 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. Duty is defined as 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.” . . . .

Whether the defendant owes the plaintiff a duty of care is a threshold issue; absent some duty, an action for negligence cannot be maintained. 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.

Gipson, 214 Ariz. at 143–44 ¶¶ 10–11, 150 P.3d at 230–31 (citations omitted).

P6 As noted by the Arizona Supreme Court, pre-2007 case law addressing duty “created ‘some confusion and lack of clarity . . . as to what extent, if any, foreseeability issues bear on the initial legal determination of duty.'” Gipson, 214 Ariz. at 144 ¶ 15, 150 P.3d at 231 (citation omitted). Gipson, however, expressly held “that [HN3] foreseeability is not a factor to be considered by courts when making determinations of duty, and we reject any contrary suggestion in [***5] prior opinions.” 214 Ariz. at 144 ¶ 15, 150 P.3d at 231. Accordingly, foreseeability is not a part of the duty inquiry and those portions of pre-Gipson cases relying on foreseeability when addressing the issue are no longer valid.

P7 Although a duty can arise in various ways, Elizabeth argues: (1) the student-school relationship imposes a duty on Defendants here and (2) public policy imposes such a duty. [HN4] Recognizing the concept of duty is context dependent, Gipson indicates that duty may arise from the relationship between the parties or, alternatively, from public policy considerations. Gipson, 214 Ariz. at 145 ¶ 18, ¶ 23, 150 P.3d at 232; accord Monroe v. Basis School, Inc., 234 Ariz. 155, 157, 159 ¶ 5, ¶ 12, 318 P.3d 871, 873, 875 (App. 2014); see also Randolph v. Ariz. Bd. of Regents, 19 Ariz. App. 121, 123, 505 P.2d 559, 561 (App. 1973) (“No better general statement can be made, than that the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.”).

A. Duty Based On The Student-School Relationship.

1. Context Of The Duty.

P8 [HN5] “The student-school relationship is one that can impose a duty within the context of the relationship.” Monroe, 234 Ariz. at 157 ¶ 5, 318 P.3d at 873. Arizona case law shows the duty most clearly applies in on-campus activities in the primary and secondary school context, where the relationship is custodial. Monroe, 234 Ariz. at 158 ¶ 9, 318 P.3d at 874. Arizona case law is less clear whether and to what extent the duty applies in off-campus [***6] activities in the primary and secondary school context. See Alhambra Sch. Dist. v. Superior Court, 165 Ariz. 38, 41–42, 796 P.2d 470, 473–74 (1990) (holding school district owed duty to high school student injured in elementary school-created crosswalk); Collette v. Tolleson Unified Sch. Dist., No. 214, 203 Ariz. 359, 54 P.3d 828 (App. 2002) (holding school owed no [*623] [**935] duty to third party who was injured by high school student who left campus in violation of school policy).

P9 In the college and university context, courts in other jurisdictions “are split on whether a college owes an affirmative duty to its students.” Restatement (Third) of Torts: Physical and Emotional Harm § 40 Reporters’ Notes cmt. l (2012) (Restatement) (citing cases). [HN6] Arizona case law, however, indicates a college or university does owe its students a duty of reasonable care for on-campus activities. See Jesik v. Maricopa Cnty. Cmty. Coll. Dist., 125 Ariz. 543, 611 P.2d 547 (1980); see also Delbridge v. Maricopa Cnty. Cmty. Coll. Dist., 182 Ariz. 55, 58–59, 893 P.2d 55, 58–59 (App. 1994) (holding college owed duty to student for injury incurred during college class, even though college did “not have a permanent campus”). It is undisputed that the Tibet trip was not an on-campus activity.

P10 The parties have cited, and the court has found, no Arizona case addressing whether a college or university owes its students a duty of reasonable care for off-campus activities. Section 40(b)(5) of the Restatement, applied by the Arizona Supreme Court in a different context, imposes a “duty of reasonable care with [***7] regard to risks that arise within the scope of the relationship” for “a school with its students.” Restatement § 40(a), (b)(5).4 As framed by the parties, Restatement § 40 provides that a college or university may owe a duty to its student “to risks that occur while the student is at school or otherwise engaged in school activities.” Restatement § 40 cmt. l (emphasis added). No Arizona case has recognized a duty by a university or a college in any context comparable to this case. In addition, Restatement § 40, in its final form, was promulgated in 2012, meaning there is comparatively little guidance in construing “otherwise engaged in school activities.” Restatement § 40 cmt. l. This lack of authority is significant given that Elizabeth has the burden to show the existence of a duty. Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230.

4 In the common carrier context, Nunez v. Professional Transit Mgmt. of Tucson, Inc., applied Restatement § 40 Proposed Final Draft No. 1 (2007). 229 Ariz. 117, 121 ¶¶ 17–18 & n.2, , 271 P.3d 1104, 1108 & n.2 (2012); see also Monroe, 234 Ariz. at 157 ¶ 5, 318 P.3d at 873 (citing Restatement § 40 in primary school context).

P11 [HN7] Recognizing that the existence of duty is a legal, not a factual, matter, Gipson cautioned against “a fact-specific analysis of the relationship between the parties” in determining whether a duty of care exists. Gipson, 214 Ariz. at 145 ¶ 21, 150 P.3d at 232 (considering whether duty existed in a case not involving a categorical relationship). Accordingly, [***8] this court does not look at “the parties’ actions” alleged to determine “if a duty exists.” Id. at 145 ¶ 21, 150 P.3d at 232. Instead, this court looks to the legal factors identified elsewhere to determine whether the Tibet trip was an off-campus school activity for which Defendants owed Morgan a duty of reasonable care. See Barkhurst v. Kingsmen of Route 66, Inc., 234 Ariz. 470, 472–75 ¶¶ 10–18, 323 P.3d 753, 755–58 (App. 2014) (citing cases); Wickham v. Hopkins, 226 Ariz. 468, 471–73 ¶¶ 13–23, 250 P.3d 245, 248–50 (App. 2011) (citing cases); see also Monroe, 234 Ariz. at 157-59 ¶¶ 5-11, 318 P.3d at 873-75.

2. The Trip Was Not An Off-Campus School Activity For Which Defendants Owed Morgan A Duty.

P12 [HN8] In the college and university setting, duty is not governed by custody or in loco parentis concepts. Delbridge, 182 Ariz. at 59, 893 P.2d at 59; see also Randolph v. Ariz. Bd. of Regents, 19 Ariz. App. 121, 123, 505 P.2d 559, 561 (App. 1973) (“There comes a time when an individual must take it upon himself to be responsible for his own education and well-being. No person can be insulated against all the risks of living.”). Similarly, “[t]he scope of the duty imposed by the student-school relationship is not limitless.” Monroe, 234 Ariz. at 157 ¶ 6, 318 P.3d at 873. “[T]he duty is tied to expected activities within the relationship. Therefore, in the student-school relationship, the duty of care is bounded by geography and time, encompassing risks such as those that occur while the student is at school or otherwise under the school’s control.” Id. at [*624] [**936] 157–58 ¶ 6, 318 P.3d at 873–74 (citing cases and Restatement § 40(b)(5) cmts. f, l).

P13 In what are at best analogous [***9] contexts, Arizona cases have identified the following factors [HN9] in determining whether an off-campus activity is deemed a school activity: (1) the purpose of the activity, Collette, 203 Ariz. at 363 ¶ 16, 54 P.3d at 832; (2) whether the activity was part of the course curriculum, Delbridge, 182 Ariz. at 59, 893 P.2d at 59; (3) whether the school had supervisory authority and responsibility during the activity, id.; Monroe, 234 Ariz. at 161 ¶ 18, 318 P.3d at 877; and (4) whether the risk students were exposed to during the activity was independent of school involvement, Collette, 203 Ariz. at 365 ¶ 23, 54 P.3d at 834. Courts elsewhere also have looked at whether (5) the activity was voluntary or was a required school activity; (6) whether a school employee was present at or participated in the activity or was expected to do so and (7) whether the activity involved a dangerous project initiated at school but built off campus. See 5 James A. Rapp & Jonathan M. Astroth, Education Law § 12.09[6][c] (2014) (citing cases).

P14 Applying these factors, the Tibet trip was conceived by exchange students who wanted to see Mount Everest, not for any NAU-related purpose. After doing some research, a student made arrangements directly with Tibettours, a Tibet-based tour company, which then set the itinerary, arranged trip details and served as a guide during the trip. Fourteen [***10] of the 17 study abroad students then went on the trip and paid Tibettours directly, or through the coordinating students. The trip, details of the trip and the cost of the trip were not part of the study-abroad program or any course curriculum, and no academic credit was awarded for the trip. At the students’ request, NAU student liaison Zhang Fan helped the students communicate with Tibettours and arrange flights, and also provided a letter, required by the Chinese government to secure required permits, stating the students were NAU students. At the students’ request, the professors agreed to allow the students to make up classes they missed if they participated in the trip. Defendants had no supervisory authority over, or responsibility for, the trip, and no faculty or staff went on the trip. The risk of altitude sickness was present independent of any involvement by Defendants and the trip did not involve a potentially dangerous project initiated at school but built off campus. Accordingly, applying these factors, the Tibet trip was not an off-campus school activity for which Defendants owed Morgan a duty under Arizona law. See Monroe, 234 Ariz. at 159 ¶ 11, 318 P.3d at 875; Collette, 203 Ariz. at 363 ¶ 16, 54 P.3d at 832; Delbridge, 182 Ariz. at 59, 893 P.2d at 59; see also Rapp & Astroth, Education [***11] Law § 12.09[6][c] (citing cases).5

5 This does not mean that a university or college lacks a duty to protect its students for activities occurring off campus on property owned or controlled by the university or college, or for off-campus functions controlled or regulated by the university or college. See, e.g., Barkhurst, 234 Ariz. at 473–74 ¶¶ 12–14, 323 P.3d at 756–57 (discussing Estate of Hernandez v. Ariz. Bd. of Regents, 177 Ariz. 244, 866 P.2d 1330 (1994)); accord Monroe, 234 Ariz. at 157–58 ¶ 6 n.2, 318 P.3d at 873–74 n.2 (citing Delbridge, 182 Ariz. at 59, 893 P.2d at 59).

P15 Elizabeth argues that the Tibet trip was a school activity because: (1) Defendants “knew that study-abroad programs pose dangers,” and issued students cell phones to “safeguard . . . [them] during their study-abroad program;” (2) 14 of the 17 exchange students participated in the trip; (3) Defendants let students make up the classes they missed during the trip and (4) the trip would not have been possible without Fan’s assistance.

P16 Defendants’ purported knowledge that participating in the study-abroad program would involve “risks not found in study at” the University of Arizona in Tucson does not help answer whether the trip was a school activity. See Gipson, 214 Ariz. at 144 ¶ 15, 150 P.3d at 231 (rejecting foreseeability as factor in determining duty). Similarly, providing the students cell phones “with which they can contact faculty and staff to answer [***12] questions and solve problems day or night from any part of China” does not make the Tibet trip a school activity. And although many study-abroad students decided to go on the trip, some did not. Allowing [*625] [**937] classes to be made up at the students’ request similarly does not mean the trip was a school activity and the record suggests that students would have gone to Tibet even if it meant they could not make up classes they missed. Finally, it may be that the trip would not have been possible but for Fan’s assistance in response to the students’ request. That, however, does not mean Defendants owed Morgan a duty while on the trip. No authority cited holds the existence of a duty turns on whether a defendant made something possible. Indeed, such a rule would mean an almost unlimited number of individuals and entities could be found to have owed a duty here, including the airline that flew the students to Tibet, the manufacturer of that airplane and the provider of the airplane fuel. [HN10] Although a “but for” inquiry often is relevant in determining whether a plaintiff has shown causation after a duty and its breach are established, it does not address whether a duty exists. See id. at 145 ¶ 21, 150 P.3d at 232.

P17 Nor [***13] does Elizabeth’s reliance on 2007 and 2009 YISA brochures and an affiliation agreement between YISA and the University of Arizona alter the analysis. The substance of the 2009 brochure is not contained in the record. The description attributed to the brochure (“Additional Travel Opportunities,” noting “that students in past programs had visited Tibet”) does not make the trip here a school activity. Presuming the 2007 brochure applied to the Fall 2009 program, that document states: (1) “[i]ncluded in your program fee will be trips to important cities or sites in China;” (2) in addition, “students will have a week or more of time off to travel on their own” and (3) “[o]ur staff will help with all aspects of planning these trips throughout China.” That Defendants may have helped students plan “travel on their own” does not impose on Defendants a duty for the student-planned Tibet trip. Similarly, YISA agreeing to provide “student support services — translation assistance, travel planning, and emergency assistance” — does not impose upon Defendants a duty to protect students from harms in the student-planned Tibet trip.

P18 Elizabeth also argues on appeal that selected excerpts from ABOR’s internal [***14] code of conduct mean the Tibet trip was a school activity. Although Elizabeth cited this document in superior court to show that the exchange program was an ABOR-sponsored activity, she did not argue it established a duty. By not pressing that argument then, Elizabeth cannot do so now. See Fisher v. Edgerton, 236 Ariz. 71, 75 n.2 ¶ 9, 336 P.3d 167, 171 n.2 (App. 2014).6 Even absent waiver, Elizabeth has not shown how ABOR’s code of conduct — addressing “misconduct . . . subject to disciplinary action” and “the promotion and protection” of “an environment that encourages reasoned discourse, intellectual honesty, openness to constructive change and respect for the rights of all” at state universities — makes the Tibet trip a school activity imposing a duty on Defendants.

6 Similarly, Elizabeth alleged negligence per se in superior court based on ABOR’s internal code of conduct, but did not further develop that claim. See Fisher, 236 Ariz. at 75 n.2 ¶ 9, 336 P.3d at 171 n.2; see also Steinberger v. McVey, 234 Ariz. 125, 139 ¶ 56, 318 P.3d 419, 433 (App. 2014) (noting negligence per se claim “must be based on a statute enacted ‘for the protection and safety of the public'”) (citation omitted).

P19 Finally, Elizabeth relies on the opinions of Dr. William W. Hoffa, her “standard of care” expert, who took the position that study-abroad programs should categorically owe a duty to students [***15] throughout all aspects of the program. But the question of whether a duty exists is an issue of law for the court to decide, not experts. Badia v. City of Casa Grande, 195 Ariz. 349, 354 ¶ 17, 988 P.2d 134, 139 (App. 1999) ( [HN11] “The issue of whether a duty exists is a question of law for the court, unaffected by expert opinion.”); see also Monroe, 234 Ariz. at 157 ¶ 4, 318 P.3d at 873 (existence of duty “is a matter of law for the court to decide”) (citing Gipson, 214 Ariz. at 143 ¶ 9, 150 P.3d at 230). Moreover, as Elizabeth concedes, Dr. Hoffa’s testimony goes to the standard of care and other issues that are premised on the existence of a duty. See Gipson, 214 Ariz. at 143–44 ¶¶ 10–11, 150 P.3d at 230–31 (citations omitted). Accordingly, Dr. Hoffa’s opinions do not resolve the question of whether a duty exists.

[*626] [**938] P20 For these reasons, the superior court properly concluded that the Tibet trip was not an off-campus school activity for which Defendants owed Morgan a duty.

B. Duty Based On Public Policy.

P21 In discussing whether public policy should recognize a duty here, Elizabeth

cites no public policy authority, and we are aware of none, supporting a general duty of care against harm away from school premises, absent a school-supervised activity or a particular statute. To hold otherwise would imply that the student-school relationship extends to situations where the school lacks custody [***16] over the student and the student is not participating in a school-sponsored activity. We decline to define the scope of duty in such broad terms.

Monroe, 234 Ariz. at 161 ¶ 20, 318 P.3d at 877. For these reasons, Elizabeth has not shown that public policy considerations result in Defendants owing Morgan a duty for the Tibet trip.

II. Other Issues On Appeal.

P22 Having found Defendants did not owe Morgan a duty for the Tibet trip, this court affirms the judgment and need not address the other issues raised on appeal. ABOR’s request for taxable costs on appeal is granted contingent upon its compliance with Arizona Rule of Civil Appellate Procedure 21.

CONCLUSION

P23 The judgment in favor of Defendants is affirmed.

Advertisements

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

Based upon this Mississippi decision a greater burden is not placed upon groups taking minor’s out of the country. Those requirements are to research all the possible risks the student may face and to include those risks in the release.

Colyer v. First United Methodist Church of New Albany, 2016 Miss. App. LEXIS 160

State: Mississippi: Court of Appeals of Mississippi

Plaintiff: Deliah Colyer, as Natural Mother and Next Friend of Marshuan Braxton, Deceased, and on Behalf of all Wrongful Death Beneficiaries of Marshuan Braxton, Deceased

Defendant: First United Methodist Church of New Albany and John Does 1-15

Plaintiff Claims: negligence

Defendant Defenses: no negligence and release

Holding: for the plaintiff

Year: 2016

This case concerns a young man who died during a mission trip to Costa Rica. A mission trip is where US citizens, generally go to a third world (or in their mind’s third-world country and perform public service. In this case, the mission was to fly to Costa Rica and construct a sanctuary in Villa Briceno.

The trip was led by the associate pastor of the defendant church. The trip had nine adults and six minors, including the deceased. There were also another four adults and one minor from another church on the trip.

The participants or their parents had to sign a “New Albany First United Methodist Church Youth Medical / Parent Consent form and a Parental Consent form. Braxton also signed a document entitled “Int. Missionary Profile and Release of Claim.”

On the way to the site after landing, the group stopped to pick up lunch. The group then proceeded to a beach to have lunch. The group split up into several smaller groups and went different directions along the beach. The deceased and another boy and two adults when to a rock formation and climbed it. A large wave crashed over them and swept the deceased off the rock into the ocean. Two people were able to swim back to the rock and eventually get out of the ocean.

A lawsuit was filed by the deceased mother, who was not the guardian of the deceased. The trial court, in Mississippi called the circuit court, dismissed the case and the plaintiff’s filed this appeal.

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

The court reviewed what was required in Mississippi to prove a negligence claim. “The elements of a prima facie case of negligence are duty, breach, causation, and damages.”

The first issue was the duty owed by the church to the deceased. The defendants admitted that they owed a duty to the deceased; however, the defendant argued that duty was diminished due to the age of the deceased, 17. However, the court found under Mississippi law the age of the victim was not at issue. The duty was the same under the law to anyone who was not an adult. The issue was one for the jury to decide what constituted proper and adequate supervision over the deceased.

The court also gave credence to the idea that the church failed to supervise the deceased by not researching the ocean and rocks first.

Additionally, Colyer alleges other acts of negligence: (1) failure to research the dangers of the Pacific coast and (2) allowing the children, including Braxton, to go onto a dangerous rock structure on the coast of the Pacific Ocean without any knowledge of oceanic activities in Costa Rica.

The next issue was whether the documents signed by the deceased family were valid. The court determined the legal issue in a very scary way.

The deceased’s grandmother was his guardian and signed the documents. However, a guardian does acquire all the legal interests in a minor that a parent has. The guardian has legal control and responsibility of the minor but may not have any other valid interest. In this case, the mother still maintained a recognizable interest in the deceased, a consortium type of claim loss of love, future earnings in some states, etc. She is the plaintiff in the case, and thus the release was not written broadly enough, in fact, probably could not be written broadly enough, for the release to stop the mother’s lawsuit, when it was signed by the guardian. The guardian can sign for the minor but not the parents. One adult cannot sign away another adult’s right to sue.

It is undisputed that the parties in this appeal are not the same parties that executed the waivers. It appears that one of the waivers was signed by Howell, who was Braxton’s grandmother. She signed a “parental consent form,” but she is not a party to this action. Braxton, a seventeen-year-old minor at the time, appeared to have signed the release waiver.

The court then looked into this issue. First because the deceased was a minor, he could not, by law sign the contract (release).

The defendant argued that because the mother was a third party beneficiary of the contract to send the deceased on the trip, she was bound by the contract. However, the court referred to basic contract law that said there was no meeting of the minds. Because the mother did not sign the contract or was not mentioned in the contract she did not have the requirements necessary to be a party to the contract. Therefore, she was not bound by the contract.

The appellate court overruled the trial court find the release did not meet the necessary requirements to stop a lawsuit under Mississippi law.

There was a concurring opinion this decision. That means one of the judges agreed with the decision but wanted to emphasize some point of the law or agreed with the decision overall but for a different legal reasoning. The concurring decision put more emphasize the duties owed to the deceased.

In this case, a duty clearly arose from the relationship between Braxton, a seventeen-year-old minor, and Amanda, the associate pastor and leader of FUNA’s youth mission trip. At the very least, FUNA, by and through its employee, Amanda, bore a duty to use ordinary care to plan and supervise this international mission trip composed of church members to Costa Rica and its shores on the Pacific Ocean. As the facts of this case reflect, a duty also arose and existed to supervise Braxton on the rock formations of the Costa Rica Pacific coastline.

Consequently, the concurring decision believed there was a real issue as to whether the church through its employee, failed to warn against the risk of the beaches and Pacific Ocean. Then the judge seemed to have piled on for failing to check US State Department for travel advisories.

…but she admitted to failing to check with the United States State Department online travel advisory warnings, or any other travel advisories, as to any unsafe beach, tide, or surf conditions in Costa Rica.

(Since when as the state department issued warnings about beaches, the ocean or surf?)

In planning and supervising this trip, a duty existed to warn of the hidden dangers and perils not in plain view that FUNA and its mission trip leader, Amanda, knew, or should have known, existed. Additionally, once the tide rose and the large waves knocked the adults down, Amanda bore a duty to supervise and warn Braxton of the dangerous conditions.

The concurring opinion then addressed the releases in the case. The courts’ reasoning on why the releases where void is because they contained no language warning of the risks of the trip, specifically the risk of the ocean.

The waivers contained no language regarding the liability or risks of recreational activities such as hiking, swimming, or rock climbing on Costa Rica’s beaches on the Pacific Ocean or the risks of the dangerous riptides and dangerous ocean surf.

This requirement is occurring more frequently lately. The courts want to see a list of the risks that can cause injury to the plaintiff in the release. That means there must be more than the legalese necessary for the release to be valid under state law, there must be a list of the risks to the plaintiff. More importantly the risks must include the risk that caused injury to the plaintiff.

The concurring opinion also found that the requirements for a release under Mississippi law had not been met.

Public policy prohibits the use of preinjury waivers of liability for personal injury due to future acts of a defendant’s own negligence. (waiver unenforceable where it did not express intent of student to accept any heightened exposure to injury caused by malfeasance of instructor’s failure to follow safety guidelines); For a waiver to be valid and enforceable, it must not be ambiguous, and it must be specific in wording as to the liability. Waivers will be strictly construed against the defendant. When a waiver contains ambiguous language, it cannot be construed as a waiver of liability for injuries that result from the negligence of the defendant.

Here the lack of information in the release about the risks of the trip and the ocean would have made the release unenforceable according to the concurring judge.

So Now What?

The first issue of concern is the court gave the plaintiff’s a lot of room to bring in far-flung claims of negligence to the trial. Basically, if this stands, you will have to have gone to a site and researched the risks of the site and getting to and from a site before ever taking kids from Mississippi there.

Although this is considered normal when in the outdoors, it has not been the standard of care for travel in communities, cities or normal life. Even though the defendant worked with a local missionary before the trip, the court thought that might not have been enough. The employee of the defendant in charge of the trip had not been to the site and examined it where the deceased died.

The release issue is next and creates a nightmare for recreation providers. If a minor is under the court-ordered  control of a guardian, both the guardian and the minor’s parent, at least in Mississippi, must sign the release as both have an interest that can be used to sue for the minor’s injuries or as in this case, death.

Overall, the appellant decision is scary in the burdens it places upon people organizing trips for minors, which leave the country or possibly even go next door. The entire trip must be researched in advance, the risks researched and examined, and those risks must be provided to the minors and their parents traveling on the trip, or included in the release.

The overview of the case sums the issue up. A hazardous condition was sitting on a rock near the ocean.

It was an error to grant appellee church summary judgment in a wrongful-death suit filed by the appellant, a deceased minor’s mother, because there was a genuine issue of material fact as to whether the church adequately supervised the minor, whether the child should have been warned of a known hazardous condition, and whether the minor was negligently allowed to engage in dangerous activity….

What is not brought up in this decision is whether or not the release, if valid, would have stopped the suit.

clip_image002What do you think? Leave a comment.

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

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

 


Colyer v. First United Methodist Church of New Albany, 2016 Miss. App. LEXIS 160

Colyer v. First United Methodist Church of New Albany, 2016 Miss. App. LEXIS 160

Deliah Colyer, as Natural Mother and Next Friend of Marshuan Braxton, Deceased, and on Behalf of all Wrongful Death Beneficiaries of Marshuan Braxton, Deceased, Appellant v. First United Methodist Church of New Albany and John Does 1-15, APPELLEES

NO. 2014-CA-01636-COA

COURT OF APPEALS OF MISSISSIPPI

2016 Miss. App. LEXIS 160

March 29, 2016, Decided

PRIOR HISTORY: [*1] COURT FROM WHICH APPEALED: UNION COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 09/22/2014. TRIAL JUDGE: HON. ROBERT WILLIAM ELLIOTT. TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED TO APPELLEES.

DISPOSITION: REVERSED AND REMANDED.

COUNSEL: FOR APPELLANT: JOSHUA A. TURNER.

FOR APPELLEES: WILTON V. BYARS III, JOSEPH LUKE BENEDICT.

JUDGES: BEFORE IRVING, P.J., CARLTON AND JAMES, JJ. LEE, C.J., BARNES AND FAIR, JJ., JOIN THIS OPINION. WILSON, J., JOINS THIS OPINION IN PART. CARLTON, J., SPECIALLY CONCURRING.

OPINION BY: JAMES

OPINION

NATURE OF THE CASE: CIVIL – WRONGFUL DEATH

BEFORE IRVING, P.J., CARLTON AND JAMES, JJ.

JAMES, J., FOR THE COURT:

P1. This case arises out of a wrongful-death action filed by Deliah Colyer on behalf of her deceased son, Marshuan Braxton. The trial court granted summary judgment in favor of First United Methodist Church of New Albany. On appeal, Colyer argues that the trial court erred by granting summary judgment. Finding error, we reverse and remand this case for a trial.

FACTS

P2. On June 20, 2009, Braxton, along with other minors and adult chaperones, flew from Memphis, Tennessee, to Costa Rica on a mission trip. Braxton, a seventeen-year-old, was expecting to begin his senior year at New Albany High School when classes [*2] resumed for the 2009-2010 school year. The purpose of the mission trip was to construct a sanctuary in Villa Briceno, Costa Rica, and conduct other mission activities. The trip was led by Amanda Gordon, associate pastor of First United Methodist Church of New Albany, Mississippi (FUNA). Amanda coordinated the trip with missionary Wil Bailey through the regional United Methodist missions group. There were fifteen members on the mission trip from FUNA, with nine adults and six minors. Five other individuals, four adults and one minor, from First United Methodist Church of Brandon, Mississippi, also joined.

P3. Before leaving for the mission trip, Elnora Howell, Braxton’s legal guardian and grandmother, signed two documents before a notary public as a condition of Braxton participating. These documents included a New Albany First United Methodist Church Youth Medical / Parent Consent form and a Parental Consent form. Braxton also signed a document entitled “Int. Missionary Profile and Release of Claim” that contained warnings about the dangers associated with participating in the mission trip.

P4. The group arrived in San Isidro, Costa Rica, on June 20. On June 21, 2009, the group left [*3] San Isidro to travel to the worksite in Villa Briceno. Since they expected to ride on the bus for several hours, Bailey suggested they stop for lunch at a scenic site on their way to Villa Briceno. The group stopped and ate at a roadside café. After leaving the café, they stopped at the Dominicalito, a beach, located near the Pacific Ocean. The weather was clear, and there were a few picnic tables in the area. A few locals were also there. The group intended to go on a brief excursion and take photographs. The bus driver suggested two or three areas on the beach for the group to visit.

P5. The group separated into two or three smaller groups and headed to the suggested areas. Braxton, Mattie Carter, and Josh Creekmore, along with adult chaperones, Sam Creekmore and Mike Carter, went to a rock formation and climbed onto it to observe crabs. The adults eventually climbed down and walked behind the rock formation. Braxton, Mattie, and Josh stayed up top and continued to observe the crabs. While Braxton, Mattie, and Josh were still up top, a large wave crashed into the rock formation and knocked them into the ocean.

P6. Mike and Sam immediately climbed back on the rock formation and saw [*4] Braxton, Mattie, and Josh swimming with their heads above water. The wave current, however, began to wash the minors away from the rock formation. Sam instructed them to swim around the rocks into an inlet area to reach safety on the beach. Mike climbed down closer to the water level. A second wave rose and knocked Mike into the ocean, and the current took him in the opposite direction of Braxton, Mattie, and Josh. Mike was eventually rescued by a local Costa Rican resident that had a life jacket and rope. Braxton, unfortunately, disappeared into the water before Mike was rescued. Mattie and Josh, however, were able to swim out onto the beach after being in the water for about five minutes.

P7. Adam Gordon and his wife, Amanda, went to a different area of the beach, but because of the distance and obstructions blocking their view they were unable to see the minors. Adam testified that he was knocked down by a wave at the same time that the wave reached the area where Braxton, Josh, and Mattie were located. Amanda was standing nearby and saw the wave approaching Adam. Amanda yelled to her husband and then saw the wave knock him down. According to the Gordons, only one or two minutes [*5] passed before they had turned the corner of the taller rock formation and could see the rock where Braxton had been located. And it was at that time that they saw Mattie and Josh getting out of the water and Mike being rescued. However, according to Josh, fifteen to twenty minutes passed between Adam being knocked down by the large wave and the minors being swept into the water by another large wave.

P8. The mission-trip members immediately began to seek help after seeing people on the beach reacting and in the water. The locals contacted emergency services by telephone, and residents in the area helped. The ambulance and local authorities arrived. Thereafter, everyone at the beach began to look for Braxton. The mission-trip group stayed on the beach for over three hours after the incident until darkness ended their search. Regrettably, Braxton’s body was found the next day and identified by Amanda, Adam, and Sam.

PROCEDURAL HISTORY

P9. The complaint was filed on November 10, 2011, in the Circuit Court of Union County, Mississippi. FUNA filed its answer and defenses on March 16, 2012, and, after conducting discovery, filed it motion for summary judgment on March 5, 2014. A hearing was [*6] held on April 28, 2014, and resulted in the circuit court granting Colyer’s request for additional time to conduct discovery. Colyer conducted additional discovery and depositions followed by the parties providing supplemental briefing. Another hearing was held on September 16, 2014. After considering all of the sworn evidence and the arguments of counsel, the circuit court found that no genuine issue of material fact existed to support Colyer’s claims of negligence. The circuit court entered an order granting FUNA’s motion for summary judgment on September 23, 2014.

STANDARD OF REVIEW

P10. [HN1] We review the trial court’s grant or denial of summary judgment under a de novo standard. Moss Point Sch. Dist. v. Stennis, 132 So. 3d 1047, 1049-50 (P10) (Miss. 2014).

[HN2] Summary judgment is appropriate and shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Importantly, the party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific [*7] facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be entered against him.

Karpinsky v. Am. Nat’l Ins., 109 So. 3d 84, 88 (P10) (Miss. 2013) (internal citations and quotation marks omitted). “[T]he evidence must be viewed in the light most favorable to the party against whom the motion has been made.” One S. Inc. v. Hollowell, 963 So. 2d 1156, 1160 (P6) (Miss. 2007).

I. The trial court erred by granting summary judgment, as genuine issues of material fact existed.

P11. Colyer alleges that FUNA was negligent and FUNA owed a duty to supervise Braxton while the group was on the mission trip. FUNA’s position is that no negligence existed and that summary judgment was proper. [HN3] The elements of a prima facie case of negligence are duty, breach, causation, and damages. Grisham v. John Q. Long V.F.W. Post, No. 4057 Inc., 519 So. 2d 413, 416 (Miss. 1988); Burnham v. Tabb, 508 So. 2d 1072, 1074 (Miss. 1987). Colyer contends that FUNA owed a duty to Braxton to provide ordinary care while supervising him during this trip. Colyer alleges that the duty was breached, and that the negligent acts or omissions of FUNA caused the death of Braxton.

P12. FUNA agrees that a duty was owed to supervise Braxton, but FUNA contends that Braxton’s age at the time of his death diminishes that duty. Nevertheless, our supreme court has held that [HN4] adequacy of supervision is a question for the jury. Summers v. St. Andrew’s Episcopal Sch., 759 So. 2d 1203, 1215 (PP48-50) (Miss. 2000); see also James v. Gloversville Enlarged Sch. Dist., 155 A.D.2d 811, 548 N.Y.S.2d 87, 88-89 (N.Y. App. Div. 1989). Therefore, [*8] regardless of Braxton’s age, a jury must decide what constitutes proper and adequate supervision. See Todd v. First Baptist Church of W. Point, 993 So. 2d 827, 829 (P12) (Miss. 2008).

P13. There are also disputed facts regarding whether it was reasonable to expect Amanda to give Braxton warning after she witnessed her husband being knocked down by a wave. And we have determined that [HN5] “[c]ontradictory statements by a witness go to the weight and credibility of that witness[‘s] testimony, not its sufficiency, and a summary judgment motion does not place the trial court in the role of weighing testimony and determining the credibility of witnesses.” Jamison v. Barnes, 8 So. 3d 238, 245 (P17) (Miss. Ct. App. 2008) (citation omitted).

P14. Additionally, Colyer alleges other acts of negligence: (1) failure to research the dangers of the Pacific coast and (2) allowing the children, including Braxton, to go onto a dangerous rock structure on the coast of the Pacific Ocean without any knowledge of oceanic activities in Costa Rica.

P15. We conclude that there are genuine issues of material fact as to whether FUNA provided ordinary care while supervising Braxton during this trip, and so we reverse the grant of summary judgment.

II. The trial court erred in granting summary judgment by considering the waivers of Howell and Braxton.

P16. Even though Colyer [*9] raised this issue, it does not appear that the judge considered the waiver. In his opinion, the judge stated:

[The plaintiff] claims that the defendant is liable for the wrongful death of Marshuan Braxton, who die[d] from drowning during a mission trip to Costa Rica on June 21, 2009. Viewing the facts in a light most favorable to the plaintiff, the court finds no genuine issues of material fact exist[ ] to support [the] plaintiff’s claim of negligence against the defendant. Therefore, this Court finds as a matter of law [the] defendant’s motion to dismiss shall be granted.

P17. FUNA admits that it does not appear that the court relied on the release. However, FUNA states that the waivers are valid and bar recovery. It is undisputed that the parties in this appeal are not the same parties that executed the waivers. It appears that one of the waivers was signed by Howell, who was Braxton’s grandmother. She signed a “parental consent form,” but she is not a party to this action. Braxton, a seventeen-year-old minor at the time, appeared to have signed the release waiver.

P18. [HN6] Pursuant to Mississippi Code Annotated section 93-19-13 (Rev. 2013), Braxton could not legally sign a contract of this nature to waive liability.1 Braxton’s contract [*10] was not legally binding because of his age and the nature of the contract. FUNA also alleges that the wrongful-death beneficiaries are bound by the contract of Braxton since they are third-party beneficiaries of Braxton’s contract. [HN7] “[O]rdinary contract principals require a meeting of the minds between the parties in order for agreements to be valid.” Am. Heritage Life Ins. v. Lang, 321 F.3d 533, 538 (5th Cir. 2003) (internal quotations and citations omitted). A contract cannot bind a nonparty. E.E.O.C. v. Waffle House Inc., 534 U.S. 279, 308, 122 S. Ct. 754, 151 L. Ed. 2d 755 (2002).

1 [HN8] “All persons eighteen (18) years of age or older, if not otherwise disqualified, or prohibited by law, shall have the capacity to enter into binding contractual relationships affecting personal property. Nothing in this section shall be construed to affect any contracts entered into prior to July 1, 1976. In any legal action founded on a contract entered into by a person eighteen (18) years of age or older, the said person may sue in his own name as an adult and be sued in his own name as an adult and be served with process as an adult.” See also Garrett v. Gay, 394 So. 2d 321, 322 (Miss. 1981).

P19. The two waivers executed in this case are not binding on Colyer and the trial court was correct in not giving any effect to these two waivers in its opinion.

CONCLUSION

P20. There is sufficient evidence before this Court [*11] to show that genuine issues of material fact exist as to whether FUNA’s supervision was negligent. Therefore, the trial court’s grant of summary judgment is reversed, and this case is remanded for a trial.

P21. THE JUDGMENT OF THE UNION COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR A TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

LEE, C.J., IRVING, P.J., BARNES AND FAIR, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., BARNES AND FAIR, JJ.; WILSON, J., JOINS IN PART. GRIFFIS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. ISHEE AND GREENLEE, JJ., NOT PARTICIPATING.

CONCUR BY: CARLTON

CONCUR

CARLTON, J., SPECIALLY CONCURRING:

P22. I specially concur with the majority’s opinion in this case, and I write specially to address the material questions of fact raised herein. With respect to the negligence claims raised, the question as to whether a duty to warn arose from the relationship between the parties constitutes a question of law. See Pritchard v. Von Houten, 960 So. 2d 568, 579 (P27) (Miss. Ct. App. 2007). Questions of law are reviewed de novo. Id. at 576 (P20). However, the questions as to causation and foreseeability include material [*12] questions of fact. P23. In this case, a duty clearly arose from the relationship between Braxton, a seventeen-year-old minor, and Amanda, the associate pastor and leader of FUNA’s youth mission trip. At the very least, FUNA, by and through its employee, Amanda, bore a duty to use ordinary care to plan and supervise this international mission trip composed of church members to Costa Rica and its shores on the Pacific Ocean. As the facts of this case reflect, a duty also arose and existed to supervise Braxton on the rock formations of the Costa Rica Pacific coastline. Accordingly, I find that genuine issues of material fact exist as to whether FUNA, through its employee, Amanda, negligently failed to warn of dangerous conditions that she knew or should have known existed on the beaches of Costa Rica’s Pacific Ocean edge, and whether Amanda, as the mission-trip leader, negligently planned and supervised this international mission trip. See Garrett v. Nw. Miss. Junior Coll., 674 So. 2d 1, 3 (Miss. 1996).2

2 In Garrett, 674 So. 2d at 3, the Mississippi Supreme Court relied upon Roberts v. Robertson County Board of Education, 692 S.W.2d 863, 870 (Tenn. Ct. App. 1985), where the Tennessee Court of Appeals imposed a duty of care upon a high-school vocational teacher “to take those precautions that any ordinarily reasonable and prudent person would take to protect his [*13] shop students from the unreasonable risk of injury.”

P24. In Pritchard, 960 So. 2d at 579 (P27),3 we recognized that “[a]n important component of the existence of a duty is that the injury is reasonably foreseeable.” The Pritchard court further explained:

A defendant charged with a duty to exercise ordinary care must only take reasonable measures to remove or protect against foreseeable hazards that he knows about or should know about in the exercise of due care. Such a defendant must safeguard against reasonable probabilities, and is not charged with foreseeing all occurrences, even though such occurrences are within the range of possibility. A defendant whose conduct is reasonable in light of the foreseeable risks will not be found liable for negligence.

Id. at (P29) (internal citations and quotation marks omitted); see also Donald v. Amoco Prod. Co., 735 So. 2d 161, 175 (P48) (Miss. 1999). While duty constitutes an issue of law, causation is generally a question of fact for the jury. Brown v. State Farm Fire & Cas. Co., No. 06-CV-199, 2007 U.S. Dist. LEXIS 40816, 2007 WL 1657417, at *4 (S.D. Miss. June 4, 2007).

3 The court in Pritchard, 960 So. 2d at 579 (P27), found that a vocational teacher “has the duty to take those precautions that any ordinary reasonable and prudent person would take to protect his shop students from the unreasonable risk of injury.”

P25. In Foster ex rel. Foster v. Bass, 575 So. 2d 967, 972 (Miss. 1990), the supreme court stated that “in order to recover for an injury to a [*14] person or property, by reason of negligence or want of due care, there must be shown to exist some obligation or duty toward the plaintiff which the defendant has left undischarged or unfulfilled.” Issues of fact as to foreseeability and breach of duty preclude summary judgment. See Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch. Inc., 759 So. 2d 1203, 1214 (PP48-51) (Miss. 2000) (reversing summary judgment on negligent-supervision claim because issues of fact as to foreseeability existed).

P26. In this case, the record reflects that Amanda served as both the associate minister and youth minister at FUNA. Amanda testified that she was responsible for planning the trip to Costa Rica and that she recruited others to participate in this international mission trip. She provided that she had led youth mission trips before and had traveled with youth groups internationally before. Amanda testified that she had consulted with team leaders from another church who had traveled to Costa Rica on youth mission trips, but she admitted to failing to check with the United States State Department online travel advisory warnings, or any other travel advisories, as to any unsafe beach, tide, or surf conditions in Costa Rica. She also admitted to not instructing or warning Braxton or any other youth [*15] about beach safety or about the dangerous surf or riptides of Coast Rica’s Pacific Coast.4

4 Compare Rygg v. Cnty. of Maui, 98 F. Supp. 2d 1129, 1132-33 (D. Haw. 1999).

P27. Geographically, Costa Rica sits between the Carribean Sea and the Pacific Ocean. The record reflects that the youth group was on the Pacific Ocean side of Costa Rica, and that Braxton and other members of the mission team began climbing on volcanic-rock formations that were separated from the shore by shallow water. Braxton and Josh climbed on and over the rock formation to the Pacific Ocean side, and then they climbed down by the Pacific Ocean’s edge, where they saw some crabs. While watching the crabs, waves from the Pacific Ocean knocked Braxton and Josh off of the rock formation, into the ocean, and into the current of the dangerous riptides. Josh explained that the waves knocked them into different currents.

P28. Regarding the traumatic events, Josh testified that he was standing on the rock formation with Braxton when a wave knocked them off of the rock and into the water. Josh testified that two more waves hit them as they tried to climb back onto the rock. Josh recalled getting pushed back under water after the second wave hit. When he came back [*16] to the surface, Braxton was grabbing his back, and the water had pushed the two of them close enough to the rock that they had fallen off of that they could try to climb back up. When the water from the wave subsided, they slid back down into the water, and Josh and Braxton then became separated by different currents. Josh testified that he was pushed into a current separate from Braxton, taking them in different directions. Josh recalled looking back and watching Braxton climb onto a smaller rock. When a third wave hit them, he and Braxton went under water again, and when he came back up, he could no longer see Braxton. Josh testified that prior to the trip, no one warned him of unsafe tide, surf, waves, or other conditions existing on the Pacific Ocean coast of Costa Rica. He also testified that he brought a swim suit with him on the trip.

P29. The record contains pictures of the location where Braxton was knocked off of the volcanic-rock formation and into the Pacific Ocean. Josh described the top of the rock that he and Braxton climbed on as twenty feet high above the water, and stated that he and Braxton were on the ocean side of the formation, ten feet from the top, when the wave [*17] swept them off. Josh provided that water completely surrounded the rock on all sides, separating the rock from dry sand by approximately thirty to forty feet of ankle-deep water on one side. Josh explained that the water was deeper on the ocean side of the rock where he and Braxton were knocked in the water.

P30. Josh testified that he recalled Adam, a grown man who weighed approximately 340 pounds, slipping into the water before the wave hit him and Braxton. Adam testified that he was knocked down by a seven-to-eight-foot wave. Josh recalled that Adam was swept into the water about fifteen to twenty minutes before a different wave swept him and Braxton into the ocean.

P31. The record reflects existing material questions of fact as to whether the church, through its mission-trip leader and employee, Amanda, negligently breached its duty to Braxton, a minor, to plan and supervise this international mission trip and to warn Braxton of the dangerous beach and surf conditions on Costa Rica’s Pacific coast. Therefore, the trial court erred in granting summary judgment since triable issues of material fact exist in this case. In planning and supervising this trip, a duty existed to warn of [*18] the hidden dangers and perils not in plain view that FUNA and its mission trip leader, Amanda, knew, or should have known, existed. Additionally, once the tide rose and the large waves knocked the adults down, Amanda bore a duty to supervise and warn Braxton of the dangerous conditions.

P32. The trial court’s decision failed to address the Youth Medical/Parental Consent form waivers or their applicability in this case. However, the enforceability of the waivers was argued on appeal, and I write briefly to address this issue. Jurisprudence reflects that the preinjury waivers herein are unenforceable with respect to the negligence claims for wrongful death raised in this case against the church for its negligence in planning, supervising, and failing to warn of the dangerous beach and ocean conditions on this mission trip to Costa Rica. See Ghane v. Mid-S. Inst. of Self Def. Shooting Inc., 137 So. 3d 212, 221-22 (P23) (Miss. 2014). The language in the waivers in this case applied to church-mission-related activities and related risks. The waivers contained no language regarding the liability or risks of recreational activities such as hiking, swimming, or rock climbing on Costa Rica’s beaches on the Pacific Ocean or the risks of the dangerous riptides and dangerous ocean surf. [*19] Public policy prohibits the use of preinjury waivers of liability for personal injury due to future acts of a defendant’s own negligence. See Turnbough v. Ladner, 754 So. 2d 467, 469 (P8) (Miss. 1999) (waiver unenforceable where it did not express intent of student to accept any heightened exposure to injury caused by malfeasance of instructor’s failure to follow safety guidelines); Rice v. Am. Skiing Co., No. CIV.A.CV-99-06, 2000 Me. Super. LEXIS 90, 2000 WL 33677027, at *2 (Me. Super. Ct. May 8, 2000). For a waiver to be valid and enforceable, it must not be ambiguous and it must be specific in wording as to the liability. See Turnbough, 754 So. 2d at 469 (P8). Waivers will be strictly construed against the defendant. Id. When a waiver contains ambiguous language, it cannot be construed as a waiver of liability for injuries that result from the negligence of the defendant. Id. at 470 (P9).

P33. As stated, the evidence in the record reflects material questions of fact exist as to foreseeability and breach of duty for negligent failure to plan and supervise the mission trip and failure to warn of the dangerous beach and surf conditions of Costa Rica’s Pacific coast.5 Therefore, summary judgment must be reversed and the case remanded.

5 Compare Diamond Crystal Salt Co. v. Thielman, 395 F.2d 62, 65 (5th Cir. 1968) (plaintiff was injured on a guided tour of a mine where “the danger was not obvious, and if the dangerous condition [*20] had in fact been observed it would not have been appreciated by persons of ordinary understanding”); see also Martinez v. United States, 780 F.2d 525, 527 (5th Cir. 1986) (duty to warn at shallow swimming area of federal park); Wyatt v. Rosewood Hotels & Resorts LLC, 47 V.I. 551, 2005 WL 1706134, at *4-5 (D.V.I. 2005).

LEE, C.J., BARNES AND FAIR, JJ., JOIN THIS OPINION. WILSON, J., JOINS THIS OPINION IN PART.


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.

College students on break to Mexico on a “party train” fell between the cars. Decedent was the 4th student to fall which gives rise to the liability of the travel agent. This is an early Arizona case voiding releases also.

Maurer, v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294; 890 P.2d 69; 1994 Ariz. App. LEXIS 105; 165 Ariz. Adv. Rep. 51

State: Arizona

Plaintiff: Larry Maurer and Linda Maurer, husband and wife, personally and on behalf of the Estate of Molly Marie Maurer

Defendant: Cerkvenik-Anderson Travel, Inc., an Arizona corporation; College Tours, a division of Cerkvenik-Anderson Travel, Inc.; Dennis Anderson and Jane Doe Anderson, husband and wife; Anton Cerkvenik and Jane Doe Cerkvenik, husband and wife; and John Does I-X

Plaintiff Claims: Negligence, violation of the Arizona Consumer Fraud Act,

Defendant Defenses: No duty and release

Holding: For the Plaintiff

Year: 1994

The defendant is a travel agency that specialized in college tours. These college tours are more famously known for taking students south of the boarder during breaks to party where the age to drink is lower and so is about everything else.

One of these tours included an eighteen hour train ride known as the “Party Train.” The plaintiff and a friend decided to move forward and investigate the engine. Between the cars were extensions between the cars were covered with some sort of plate. However the last passenger car had not extension and no plate extending back from the freight car or engine. The plaintiff stepped off and fell from the train to her death.

The plaintiff was the fourth student to die this way on a tour organized by the defendant, although the particular incidents leading to the student deaths were slightly different.

The decedent’s parents sued the travel agency for themselves and representing the estate of the deceased. The trial court dismissed the case because there was no duty of care owed to the plaintiff by the defendant travel agent.

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

The court started its analysis by looking at the duty owed by the defendant as a travel agent.

(1) to exercise reasonable care for the safety of students in operating its student tours; (2) to disclose material facts affecting safety in promoting and selling its tours; and, (3) not to make misrepresentations in promoting and selling its tours.

The defendant argued that because it could not control the train and had no knowledge of the specific condition leading to the decedent’s death the travel agent had no duty to the plaintiff.

Duty is an issue of law and as such the courts decide whether or not there was any duty. Juries apply the facts to the law.

Whether a duty exists is a question of whether one of the parties to a relationship is under an obligation to use care to avoid or prevent injury to the other. “‘Duty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff.”

If the court decides no duty exists then no trial is held. No duty, no negligence. However the appellate court saw the existence of a duty differently from the trial court which stated there was no duty.

The court concluded the relationship between the decedent and the defendant was like an agency, since the defendant was a travel agent.

Different occupations owe different duties to their guests, customers, clients, patrons or consumers. The court set out the duties of a travel agent under Arizona law, which included a duty to disclose. “These duties include the duty to disclose material dangers known to the agent.” This duty “…does not represent an extension of tort liability upon an agent it results from an exposition of the pre-existing duty of care owed a principal by his agent.”

That duty requires the travel agent to disclose information the traveler would like to know.

Unless otherwise agreed, an agent is subject to a duty to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would desire to have and which can be communicated without violating a superior duty to a third person.

That duty appears to be wide open as well as trap. What the traveler wants to know is usually unknown until communicated by the traveler to the agent. However, “The scope of this duty of disclosure will be limited, naturally, to what is reasonable in any given instance.”

However the fact the travel agent does not know what the traveler wants to know is a bar to their duty to disclose. “While there is no duty of investigation, the travel agent must disclose all information the agent learns which is material to the object of the agency.”

The court concluded that a jury must decide whether or not three other students had died on that train was something the deceased wanted to know.

The plaintiff’s also sued claiming violation of the Arizona consumer fraud act. The omission of the other deaths violated the act.

Under the Act, it is unlawful for any person to use or employ any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived, or damaged thereby.

The act defined merchandise to include services. The trial court found that death was not related to the information contemplated by the act to be disclosed. Again the appellate court found differently.

The final issue was whether or not a release was in existence and valid.

The itinerary contained a paragraph stating the defendant waived liability. There was also an invoice for the trip with the same release language as on the itinerary. The decedent acknowledge in her payment for the trip that she had “read the flyer, waiver of liability and the itinerary and acknowledged by her payment for the trip that she had read the information, agreed to it and understood all its terms and conditions.”

The trial court denied the validity of the release and the appellate court agreed. “Here, the danger is too defuse [sic] and unspecific for a valid waiver to apply.”

The appellate court agreed and stated: “Attempts to release oneself from liability by contract for harm caused by one’s own negligence are not looked upon with favor. “This would tend to encourage carelessness.””

The court also quoted Restatement (Second) of Agency § 419 (1957), and found the lack of the disclosure of the other deaths also violated the requirements for the release to be valid.

…such agent is under the “duty of disclosure and fair dealing stated in Section 390.” That section provides that an agent has a duty to deal fairly with the principal and to disclose to him all facts which the agent knows or should know would reasonably affect the principal’s judgment, unless the principal has manifested that he knows such facts or that he does not care to know them.

The appellate court then sent the case back for trial.

Thus, although we conclude that CA is a seller to consumers and an agent bound by statutory and common law duties, we are unable to determine from the limited record before us whether the release is valid. Whether CA fulfilled its duty to Molly under Section 390 must await further discovery or trial.

So Now What?

Duties owed to your customer, consumer or guests vary based on the occupation of the defendant. You need to make sure you understand those duties. More importantly, you need to make sure you understand your classification or job description.

Many outfitters and guides as well as college and university programs book for third parties. College’s book trips, outfitters and guides will book for their competitors when their trips are full. This changes their duties because their relationship with the client has changed.

This case also provides another way that releases can be void and reinforces a common way. Any time the court can find a failure to disclose a release will be void. Courts in the way past would use the argument that a release should be void because it encourages defendants to be careless leading to injuries.

Arizona courts have slowly chipped away at the defense of release for several decades. Unless the activity is protected by statute, the courts have found easy and unobtrusive ways to void releases. Not enough to ring alarm bells, but each time, enough to void the release.

clip_image002What do you think? Leave a comment.

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

 

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

 

 

 

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

 

 

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

 


Maurer, v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294; 890 P.2d 69; 1994 Ariz. App. LEXIS 105; 165 Ariz. Adv. Rep. 51

Maurer, v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 294; 890 P.2d 69; 1994 Ariz. App. LEXIS 105; 165 Ariz. Adv. Rep. 51

Larry Maurer and Linda Maurer, husband and wife, personally and on behalf of the Estate of Molly Marie Maurer, Deceased, Plaintiffs/Appellants, v. Cerkvenik-Anderson Travel, Inc., an Arizona corporation; College Tours, a division of Cerkvenik-Anderson Travel, Inc.; Dennis Anderson and Jane Doe Anderson, husband and wife; Anton Cerkvenik and Jane Doe Cerkvenik, husband and wife; and John Does I-X, Defendants/Appellees. Larry Maurer and Linda Maurer, husband and wife, personally and on behalf of the Estate of Molly Marie Maurer, Deceased, Cross-Appellees. v. Cerkvenik-Anderson Travel, Inc., an Arizona corporation; College Tours, a division of Cerkvenik-Anderson Travel, Inc.; Anton Cerkvenik and JANE Doe Cerkvenik, husband and wife. Cross-Appellants.

2 CA-CV 93-0175

COURT OF APPEALS OF ARIZONA, DIVISION TWO, DEPARTMENT B

181 Ariz. 294; 890 P.2d 69; 1994 Ariz. App. LEXIS 105; 165 Ariz. Adv. Rep. 51

May 17, 1994, Filed

SUBSEQUENT HISTORY: [***1] Petition for Review Denied December 20, 1994.

PRIOR HISTORY: APPEAL FROM THE SUPERIOR COURT OF MARICOPA COUNTY. Cause No. CV 91-17422. Honorable J. Kenneth Mangum, Judge, Honorable Sherry H. Hutt, Judge.

DISPOSITION: REVERSED IN PART AFFIRMED IN PART

CASE SUMMARY:

COUNSEL: Treon, Strick, Lucia & Aguirre, by Arthur G. Newman, Jr. and Richard T. Treon, Phoenix, Attorneys for Plaintiffs/Appellants/Cross-Appellees.

Teilborg, Sanders & Parks, P.C., by Brian R. Burt and Rick N. Bryson, Phoenix, Attorneys for Defendants/Appellees/Cross-Appellants.

Jennings, Kepner and Haug, by James L. Csontos, Phoenix, Attorneys for Defendants/Appellees Dennis Anderson.

JUDGES: JAMES D. HATHAWAY, Judge, WILLIAM E. DRUKE, Chief Judge, PHILIP G. ESPINOSA, Presiding Judge.

OPINION BY: JAMES D. HATHAWAY

OPINION

[**70] [*295] OPINION

HATHAWAY, Judge.

In this action for the wrongful death of their daughter Molly, plaintiffs/appellants Maurers appeal from the trial court’s grant of summary judgment in favor of defendants/appellees Cerkvenik-Anderson Travel, Inc., College Tours, Dennis Anderson and Anton Cerkvenik (collectively, “CA”) on the basis that CA had no duty to Molly regarding the tour package she purchased. CA cross-appeals [***2] the court’s denial of summary judgment sought on the basis of waiver or release from liability and its refusal to award attorney’s fees. We reverse summary judgment as to appellants and affirm as to CA.

2 FACTS

Viewing the evidence in the light most favorable to the non-moving party, Nicoletti v. Westcor, Inc., 131 Ariz. 140, 639 P.2d 330 (1982), the facts are as follows. CA is a travel agency doing business as “College Tours.” Its business includes organizing, promoting, selling and operating student vacation tours destined for Mazatlan, Mexico. CA sets the itinerary, arranges for transportation and lodging and provides information relating to the students’ comfort, convenience and safety on the tour. For many years, the tour packages have included an eighteen-hour ride on a Mexican train traveling from Nogales to Mazatlan, as was the case with the tour purchased by the decedent. CA described this as a “Party Train.”

During the train ride from Nogales to Mazatlan, Molly and a friend decided to “adventure” forward in the trainto see the engine. The connecting areas between passenger railcars have metal floors with accordion-like “boots” extending from the [***3] sides of each railcar, forming an area in which it is safe to walk from the door at the end of one railcar to the door at the end of the other. En route, Molly paused and attempted to communicate in Spanish with an apparent employee of the railroad before going through a door, which turned out to be the front door of the foremost passenger car of the train. The car in front of this car was either a freight car or the engine. There was only a partial “boot” between the front of this car and the car in front of it. Beyond the door was only a narrow platform and then a large area between the cars, up to four feet wide, open straight down to the tracks and wheels of the train. It was dark, and after Molly stepped through the door, she fell to her death between the cars.

Molly was the fourth student to die by falling from a moving train on a student tour to Mazatlan organized by CA. Three other students had died previously, albeit the particular circumstances of each incident varied. The students on Molly’s tour were not informed of these prior incidents eventhough CA acknowledges that it “knew of other deaths on Mexican trains.”

[**71] [*296] DUTY OF TRAVEL AGENTS/TOUR OPERATORS

[***4] Appellants contend that CA had a duty (1) to exercise reasonable care for the safety of students in operating its student tours; (2) to disclose material facts affecting safety in promoting and selling its tours; and, (3) not to make misrepresentations in promoting and selling its tours. CA counters that it had no such duties as a travel agent, it lacked the right to control the train to make it safe, and it had no knowledge of the specific condition which caused Molly’s death.

[HN1] The existence of duty is an issue of law for the court to decide, Markowitz v. Arizona Parks Board, 146 Ariz. 352, 706 P.2d 364 (1985), not to be confused with details of conformance with a standard of conduct imposed by the relationship. Ibid. 146 Ariz. at 355, 706 P.2d at 367; see also, Lasley v. Shrake’s Country Club Pharmacy, Inc., 1994 Ariz. App. LEXIS 58, 162 Ariz.Adv.Rep. 10 (App. April 5, 1994). Whether a duty exists is a question of whether one of the parties to a relationship is under an obligation to use care to avoid or prevent injury to the other. [***5] “‘Duty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff.” W. Page Keeton, et al., Prosser and Keeton on The Law of Torts § 53 at 356 (5th ed. 1984). “If the court decides that no duty exists, then a trial is unnecessary.” Lankford & Blaze, The Law of Negligence in Arizona at 11 (1992). In this case, the trial court concluded that a trial was unnecessary because “no duty was owed by [CA] to [appellants’] decedent for the injuries which led to her death.” We disagree.

To conclude there is “no duty” is to conclude the defendant cannot be liable, no matter the facts. As the supreme court observed in Markowitz: “To postulate that the possessor of land has no duty at all to protect its invitees or warn of specific types of danger is to postulate that it can never be liable, no matter what the circumstances.” 146 Ariz. at 357, 706 P.2d at 369. The court asked the poignant question: “Would the state have been liable even if the park ranger, knowing of the hazard, had sat on the rock, watched David get ready to dive and said nothing?” Id. at 356, 706 P.2d at 368.

Adapting that query [***6] to the instant case, we believe an affirmative answer as to CA’s responsibility is compelled under principles governing agency relationships. As an Oklahoma court well summarized in Douglas v. Steele, 816 P.2d 586, 589 (Okla.App. 1991):

[HN2] An agent who handles travel and vacation plans is a special agent of the traveler for purposes of that one transaction between the parties. … And this is so even though the agent’s compensation may be paid by the company to whom she steers the business, much like an advertising agent….

[HN3] [The travel agent has] a duty to act with the care, skill and diligence a fiduciary rendering that kind of service would reasonably be expected to use…. This agency relationship also imposes a duty to promptly communicate to [the] principals confirmations and all other relevant information about the proposed travel plans and tours which would help them protect themselves from harm or loss.

(Citations omitted.) These duties include the [***7] duty to disclose material dangers known to the agent. See Tracy A. Bateman, Annotation, “Liability of Travel Publication, Travel Agent, or Similar Party for Personal Injury or Death of Traveler,” 2 A.L.R. 5th 396 (1992). This duty to disclose or warn of known dangers, as the court explained in Rookard v. Mexicoach, 680 F.2d 1257, 1263 (9th Cir. 1982), “does not represent an extension of tort liability upon an agent[;] it results from an exposition of the pre-existing duty of care owed a principal by his agent.” See also In re Swartz, 129 Ariz. 288, 294, 630 P.2d 1020, 1026 (1981) (agent’s duty to make full disclosure to principal of all material facts relevant to agency is fundamental to fiduciary relation); Walston & Co. v. Miller, 100 Ariz. 48, 410 P.2d 658 (1966); Restatement (Second) of Agency § 381 (1957), states the duty thusly:

Unless otherwise agreed, an agent is subject to a duty to use reasonable efforts to give his principal information which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would desire tohave and which can be communicated [**72] [*297] [***8] without violating a superior duty to a third person.

The travel agent’s duty to disclose is not without limits, however. The scope of this duty of disclosure will be limited, naturally, to what is reasonable in any given instance. A travel agent is not an insurer, nor can he be reasonably expected to divine and forewarn of an innumerable litany of tragedies and dangers inherent in foreign travel. Nonetheless, it does not follow that because a travel agent cannot possibly presage all dangers, he should be excused entirely from his fiduciary duties toward his principal to warn of those dangers of which he is aware, or should be aware in the exercise of due care.

Rookard, 680 F.2d at 1263. [HN4] “While there is no duty of investigation, the travel agent must disclose all information the agent learns which is material to the object of the agency.” United Airlines, Inc. v. Lerner, 87 Ill.App.3d 801, 43 Ill. Dec. 225, 410 N.E.2d 225, ___, 43 Ill.Dec. 225, ___, 410 N.E.2d 225, 228 (1980);Restatement (Second) of Agency, § 381 (1957).

[***9] In this case, because of the duties existing through the agency relationship, the trial court erred in ruling otherwise.

CONSUMER FRAUD ACTION

Appellants contend that CA violated the Consumer Fraud Act (Act), A.R.S. § 44-1521, et seq., by omitting material facts and making misrepresentations to Molly in selling and promoting its tours. [HN5] A private right of action exists for breach of the Act. Sellinger v. Freeway Mobile Home Sales, Inc., 110 Ariz. 573, 521 P.2d 1119 (1974). [HN6] Under the Act, it is unlawful for any person to use or employ any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived, or damaged thereby, A.R.S. § 44-1522(A) [***10] . The term “merchandise” includes “services.” A.R.S. § 44-1521(5). Accordingly, CA can be held liable for misrepresentations and “concealment, suppression or omission” of any material fact in selling its services.

Appellants contend the trial court evidently held, death, as a matter of law, is not a type of damage for which a private right of action may be brought under the Act. Appellants point out that they have found only one case in the nation that has considered the question. Duncavage v. Allen, 497 N.E.2d 433, 147 Ill.App.3d 88, 100 Ill.Dec. 455 (1986) (claim held to have been stated in suit against landlord for consumer fraud act violation for death of tenant based on representations and omissions about building safety.)

Appellants argue that no policy reason exists to exclude death as an injury for which a private action for damages may be brought under the Act when the omission of material information about safety has caused the death of the purchaser. They also contend that such a view is consistent with Arizona decisions in which the omission of information one has a duty to disclose causes death. See, e.g., Robertson v. Sixpence Inns of America, Inc., 163 Ariz. 539, 789 P.2d 1040 (1990) [***11] (trial court erred in ruling that motel owner owed no duty to disclose information about earlier presence of robber to independent contractor security guard who was later shot and killed by robber.) Moreover, appellants contend that neither the Act nor the cases interpreting it exclude death caused by a breach of the Act; rather, the cases have considered as an element of the cause of action the general “consequent and proximate injury” to the victim. See, Parks v. Macro-Dynamics, Inc., 121 Ariz. 517, 591 P.2d 1005 (App. 1979).

Finally, appellants argue that if a private right of action had not been recognized in Arizona, the statute is the sort the violation of which would have been treated as negligence per se and that death is a cognizable injury within the scope of an action for negligence per se. Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983). They persuasively conclude that, “recognition of a private [**73] [*298] right of action should not reduce the relief that would … otherwise have been available under negligence per se without the private right of action.” We agree.

We do not find any basis for an [***12] exemption when the damage resulting from the alleged violation is death. Accordingly, the trial court erred in granting summary judgment as to appellants’ claim under the Consumer Fraud Act.

CROSS-APPEAL ON CONTRACTUAL

RELEASE/WAIVER OF LIABILITY

CA contends in its cross-appeal that even assuming the existence of a duty, summary judgment against appellants must be affirmed because Molly released and/or waived any claim against them for any acts or omissions that led to her death. This issue has been raised both in the cross-appeal and as a cross-issue on appeal.

Molly’s itinerary contained the following provision:

XV. Terms and Conditions

… The purchaser releases and absolves College Tours from all liability for property loss or damage, caused and/or from all damages resulting in death or personal injury, loss of services, which may be sustained on account of, arising out of or while engaged in said trip, whether due to its own negligence or otherwise.

(Bold in original) The itinerary also contained a paragraph expressly entitled “Waiver of Liability.” This provision was set out separately from the other paragraphs in the itinerary and provided:

[***13] The students and the students [sic] relatives hereby waive any [sic] or liability for property damage, or personal injury, or death (Including the loss of services), which may be sustained by any student on account of, arising out of, or while engaged in said trip unless claimant establishes that the person or entity, versus whom the claim is made, violated the law or was guilty of a willful injury. Any alleged violation of law or willful injury must be the direct cause of the injury complained of; otherwise, the student and anyone making a claim as a result of any injury, damage or death to said student, hereby waives any such claim. All potential claimants hereby acknowledge that there are other means and tours available to visit Mexico or Hawaii and the student is not in an inferior bargaining position and thus freely accepts the responsibility contracted for herein. Each client has the right to choose to attend or not attend any event provided by College Tours and does so at their own discretion.

(Bold in original) Molly received an invoice form that also contained a “Waiver of Liability” provision virtually identical to that contained in the itinerary. [***14] It also contained a certification that the customer had read the flyer, waiver of liability and the itinerary and acknowledged by her payment for the trip that she had read the information, agreed to it and understood all its terms and conditions. A copy of the invoice was returned to CA with Molly’s final payment for the trip.

In denying the defense motion for summary judgment on the release/waiver issue, the trial court explained:

This Court does not find waiver to be a valid defense to Plaintiffs’ claims. read the flyer, waiver of liability and the itinerary and acknowledged by her payment for the trip that she had read the information, agreed to it and understood all its terms and conditions. Because the danger being waived was so specific and obvious in Valley National Bank v. National Assoc. for Stock Car Auto Racing, Inc., 153 Ariz.App. [sic] 374, 736 P.2d 1186 (App. 1987), that Court allowed the waiver to defeat Plaintiff’s claims. Here, the danger is too defuse [sic] and unspecific for a valid waiver to apply.

We find merit in the trial court’s distinction. Attempts to release oneself from liability by contract for harm caused by one’s own negligence are not looked upon with favor. “This would tend to encourage [***15] carelessness.” Salt River Project Agric. Improvement & Power Dist. v. Westinghouse Elec. Corp., 143 Ariz. 368, 382, 694 P.2d 198, 212 (1984).

[HN7] While an agent may be discharged from liability by an effective release, Restatement [**74] [*299] (Second) of Agency § 419 (1957), such agent is under the “duty of disclosure and fair dealing stated in Section 390.” That section provides that an agent has a duty to deal fairly with the principal and to disclose to him all facts which the agent knows or should know would reasonably affect the principal’s judgment, unless the principal has manifested that he knows such facts or that he does not care to know them.

Thus, although we conclude that CA is a seller to consumers and an agent bound by statutory and common law duties, we are unable to determine from the limited record before us whether the release is valid. Whether CA fulfilled its duty to Molly under Section 390 must await further discovery or trial. Accordingly, the court’s order denying CA’s Motion to Dismiss/Motion for Summary Judgment on waiver/release grounds [***16] is affirmed.

Reversed in part; affirmed in part.

JAMES D. HATHAWAY, Judge

CONCURRING:

WILLIAM E. DRUKE, Chief Judge

PHILIP G. ESPINOSA, Presiding Judge


Outdoor Recreation, Insurance Risk Management and Law

 Coming this fallOutdoorRisk_FinalCoverFull


If you fall down in a foreign country, and you have paid money to be there, you probably have to sue there.

The exception is cheap vacations where the hotels and resorts won’t have you sign a forum selection clause when you arrive.

Mcarthur v. Kerzner International Bahamas Limited, 2015 U.S. App. LEXIS 5058

State: Kansas, United States Court of Appeals For The Eleventh Circuit

Plaintiff: John C. Mcarthur, Sandra S. Mcarthur

Defendant: Kerzner International Bahamas Limited, Kerzner International Limited, Island Hotel Company Limited, Paradise Island Limited

Plaintiff Claims: negligence

Defendant Defenses: Forum Selection Clause

Holding: For the Defendant

Year: 2015

The plaintiffs, husband and wife, went to the Bahamas to watch a college basketball tournament. While at a resort, the husband slipped and fell near the pool injuring his back. The plaintiff’s filed a lawsuit in the federal district court in Kansas. The defendants filed a motion to dismiss based on the forum selection clause the plaintiff’s had signed.

A forum selection clause is the same as a jurisdiction and venue clause. It identifies the place and the law that will be applied to the case.

The district court dismissed the plaintiff’s claims and the plaintiff’s, husband and wife, appealed to the Eleventh Circuit Court of Appeals. This is the decision of the Eleventh Circuit Court of Appeals.

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

The plaintiff’s booked their travel through a travel agent who was hired by the university or done in conjunction with the university. The travel agent upon booking the rooms received a contract from the hotel which required the travel agent to inform the guests of the rules and contract provisions.

The relationship between a travel agent and the hotel is different from most contracts. First whether or not a contract exists is based on the relationship. If a contract exists it is to pay a commission a specific way to the travel agent and/or be based on a relationship. However, in every situation there is a third party beneficiary to the contract or third parties that are part of the contract, the travelers. Either way the travelers have an interest in the contract. The travel agent usually has requirements as part of the contract to communicate parts or the entire contract to their customers, the travelers.

Sometimes the travel agent is the agent of the travelers. In cases where the travel agent is an agent, then the travel agent must communicate all things known or required by the hotel to the traveler.

Those terms and provisions, which were to be communicated in this case included:

…two provisions in which the travel agent agrees to notify their clients that when they book their reservation through the travel agent, they are subject to certain terms and conditions governing their stay at Atlantis.

A section of the contract indicates that the additional terms and conditions are available on the Atlantis website.

The terms and conditions provide that the guest will be asked to sign a form agreeing to certain terms related to any claims the guest may have as a result of the guest’s stay at the Atlantis Resort. It specifically states that “I agree that any claim I may have against [several named defendants and others], along with their parent, related and affiliated companies at every tier, . . . resulting from any events occurring in The Bahamas shall be governed by and construed in accordance with the laws of the Commonwealth of The Bahamas, and further, irrevocably agree to the Supreme Court of The Bahamas as the exclusive venue for any such proceedings whatsoever.”

Because the travel agent is an “agent” of the plaintiff the plaintiff had constructive notice of the terms of the agreement before they arrived in the Bahamas. Constructive notice means you legally had notice of the facts or pleadings at issue even if you did not have actual notice.

When the plaintiff’s arrived at the resort, they signed a registration card titled Acknowledgement, Agreement and Release. This too had a choice of forums clause requiring all suits to be brought in the Bahamas.

The court first reviewed the law surrounding forum selection clauses.

A forum selection clause will be invalidated where “(1) its formation was induced by fraud or overreaching; (2) the plaintiff would be deprived of its day in court because of inconvenience or unfairness; (3) the chosen law would deprive the plaintiff of a remedy; or (4) enforcement of the clause would contravene public policy.”

The test on whether a forum selection clause goes too far or overreaches is:

To determine whether there was fraud or overreaching in a non-negotiated forum selection clause, the court looks to “whether the clause was reasonably communicated to the consumer. A useful two-part test of ‘reasonable communicativeness’ takes into account the clause’s physical characteristics and whether the plaintiffs had the ability to become meaningfully informed of the clause and to reject its terms.”

The court found “The Bahamas is an adequate alternative forum, and the public interest factors weigh in favor of transfer.” The court then looked at the arguments raised by the plaintiffs as to why the forum selection clause should be invalidated. However, the plaintiff’s did not argue any of the four factors necessary to overcome the selection in the clause.

Consequently, the court upheld the District Court’s dismissal of the claim. The plaintiffs were free to go to the Bahamas and file their claim again.

So Now What?

The legal term for deciding the case should be dismissed is forum non conveniens. Latin for the forum is not convenient, meaning the right one based on the contract.

There are two keys here that were critical for the court to rule this way. The first was the forum selected was reasonable for the situation. Normally, you have to choose the forum of the defendant, where the defendant is served or where you may catch the defendant temporarily. (There are classic “stories” of serving defendants in airplanes as they flew over a particular state.)  

There must be a reasonable reason for the selection you choose. If you are based in one state and the plaintiff’s come from others, you cannot just choose any state with the best law or the hardest courts to find. You must choose a state where the accident happens if you are fixed, what the accident may happen if you are running trips in other states or the state where you are legally based.

The second is the plaintiff’s had the opportunity, whether or not they took it, to see the forum selection clause, and the other contractual terms, prior to leaving their homes. This might have resolved with a different result if the forum selection clause and other contracts, such as a release, had been handed to the plaintiff’s upon the arrival without any notice they would be required to sign it.

If the client had not signed the agreement at the time of check in, and if they claimed they had not read or received the contract, the plaintiff’s might still have been held to the contract because they took advantage of the benefits the contract offered.

Get your release, with its forum selection clause, in front of the plaintiff as soon as possible. Now days it can be part of the sign up process online or posted on your website or emailed to the guest when their credit card is run.

What do you think? Leave a comment.

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

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

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

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

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