After this decision, I’m not sure you could prove assumption of the risk without a written document and a video or more.

Posted: April 22, 2024 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, Pennsylvania | Tags: assumption of the risk, Balance Beam, Challenge Couse, Corporate Team Building, Low Challenge Course, Team Building, Woodloch Pines Resort | 3 Comments

Plaintiff was part of a team-building group for her school/employer, she fell off the balance beam and sued for her injuries.

Hazen v. Woodloch Pines Resort, Civil Action 3:21-cv-00174 (M.D. Pa. Feb 16, 2024)

State: Pennsylvania, United States District Court, M.D. Pennsylvania

Plaintiff: Erin Hazen

Defendant: Woodloch Pines Resort d/b/a Woodloch Pines, et al

Plaintiff Claims:

Defendant Defenses: Assumption of the Risk

Holding: For the Plaintiff

Year: 2024

Summary

A middle school assistant principal fell off a low rope’s balance beam, 12″ high, into wood chips suffering injuries to her leg, ankle, and foot. However, under the interpretation of the defense of assumption of the risk by this court, she did not assume the risk of her injuries.

This has got to be appealed!

Facts

Woodloch Pines Resort (“Woodloch”) is an all-inclusive family resort located in Pike County, Pennsylvania. Since the 1990s, it has offered corporate team building activities on an outdoor low ropes challenge course. One of the elements of this challenge course was a “balance beam” or “teeter-totter” device made up of a fulcrum with a plank on top of it. The plank or “beam” is 10-feet long and 10%-inches wide. The fulcrum is 12-inches high and, when at its highest point, the end of the plank or beam is 3 feet above the surface below. The area below and around the balance beam device was covered with wooden mulch, presumably to, cushion the fall of any participants.

In June 2019, the plaintiff, Erin Hazen, was an assistant principal at KIPP TEAM Academy, a public charter school in Newark, New Jersey. She had been working there for about a year. On Saturday, June 22, 2019, Hazen and ten of her colleagues from the “leadership team” at KIPP TEAM Academy were on the third day of a leadership retreat at Woodloch. That morning, they participated in the outdoor challenge course activities as a team. After completing several other activities, they attempted the “balance beam” activity, where Hazen was injured.

The team was instructed by Eric Ranner, Woodloch’s corporate activities director, that the goal of the balance beam activity was to get the entire 11-person leadership team onto the plank without breaking either of two eggs that had been placed under each end of the plank. The parties dispute whether Ranner gave any additional verbal instructions or warnings to the participants. Ranner was the only Woodloch employee present at the time.

After two unsuccessful attempts to complete the activity, the team was able to get ten members on the plank at once during its third attempt. When the eleventh team member mounted the plank, it became unbalanced and Hazen fell off, along with other participants. At least one other participant landed on top of Hazen.

As a result of her fall, Hazen suffered a gruesome ankle injury, including left ankle dislocation, a displaced left ankle trimalleolar fracture with transverse medial malleolar fracture, a transverse distal one-third fibula shaft fracture, syndesmotic rupture, and a minimally displaced proximal fracture in the metaphysis. Her medical treatment included three surgeries and ongoing physical therapy. Due to her injuries, resultant physical limitations, and her course of treatment, Hazen was forced to resign from her job at KIPP TEAM Academy.

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

The only defense raised in this motion was Assumption of the Risk. Under Pennsylvania law assumption of the risk is defined as:

…assumption of the risk is established by showing that the injured party fully appreciated the nature of the risk it faced and voluntarily assumed it. In addition, the injured party must not have had a meaningful and reasonable alternative path to avoid the risk.

Pennsylvania has an additional requirement to prove assumption of the risk from the majority of other states. Most states require that the plaintiff understood and knowingly assumed the risk. In Pennsylvania, the defendant must also prove that the plaintiff had a reasonable alternative way to avoid the risk.

This court then went on to define the components of the assumption of the risk under Pennsylvania law.

Voluntary assumption of the risk involves a subjective awareness of the risk inherent in an activity and a willingness – to accept it. A plaintiff has voluntarily assumed the risk where he fully understands it and Voluntarily chooses to encounter it.

If the plaintiff assumes the risk, like many states, this removes from the defendant the duty to protect the plaintiff.

Under the doctrine of assumption of the risk, a defendant is relieved of its duty to protect a plaintiff where the plaintiff has voluntarily and deliberately proceeded to face a known arid obvious risk and therefore is considered to have assumed liability for his own injuries.”

The court then went on to define what a risk, or danger as this court defined it, is:

A danger is deemed “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.” For a danger to be “known,” it must “not only be known to exist, but. . . also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated.”

In all states, the trier of fact, the jury, must determine if the plaintiff assumed the risk. In some states, the court can make that decision in a motion if there is prior case law with similar facts or if the court determines that a jury would find for the defendant.

It is for that reason that Assumption of the Risk as a defense is second to use a release. A properly written release allows the defendant to motion for a summary judgment and the court, the trial judge can decide, there is no need to spend the money to go to trial.

Here the court went further to define the risk working hard to find a definition that would put an increased burden on the defendant, effectively removing the defense of assumption of the risk.

In defining assumption of risk most courts say the plaintiff must knowingly understand the risk. Here the court stated the plaintiff must not only understand the risk but also the “magnitude and its unreasonable character.”

Going deeper into this extensive black hole to support the plaintiff the court stated.

The defendant’s burden to establish assumption of the risk is a tall order, because assumption of the risk requires knowledge of a specific risk, “It is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks. Rather, the plaintiff must be aware of ‘the particular danger’ from which he is subsequently injured in order to voluntarily assume that risk as a matter of law.

The plaintiff under this ruling must not only know the risk, but the defendant must also prove the plaintiff knew of the particular danger that injured him or her.

The judge is requiring the plaintiff to have a crystal ball to understand every possible injury that could come from assuming the risk.

You are standing on a beam, elevated above the ground 12 inches on a beam that is 10″ wide with 11 other people, and not only must you know that you can fall off, but you must know that you will receive a severe leg, ankle, and foot injury.

Hazen suffered a gruesome ankle injury, including left ankle dislocation, a displaced left ankle trimalleolar fracture with transverse medial malleolar fracture, a transverse distal one-third fibula shaft fracture, syndesmotic rupture, and a minimally displaced proximal fracture in the metaphysis

You need to make a mental note when reading a case when the judge describes the injury as gruesome and then specifically identifies each injury the plaintiff suffered.

The court found the plaintiff understood and assumed that she could fall off the beam and suffer an injury. However, the court went on to say “But “awareness of a general risk does not amount to awareness of a specific risk.””

The judge continued on this track:

Awareness of the specific risk presented by the balance beam activity here includes not just an appreciation of the general possibility that she might fall, but also an appreciation of the likelihood of a fall and the potential for serious injury such as the complex multiple ankle fractures and other injuries that our plaintiff, in fact, suffered.

The next issue the court brought up was whether or not the plaintiff had a real choice to participate or not participate in any part of the team-building exercise.

Here, the parties dispute whether Hazen’s participation in the balance beam activity was voluntary. In her affidavit, Hazen has stated that she felt her participation in this team building activity was required rather than voluntary, noting that she had just finished her first year as an assistant principal at the charter school, she was required in that role to lead by example and thus participate fully in team-building activities, and the purpose of this particular activity was to get the entire team of eleven onto the plank at one time.

At what point in life can you not stop and say I don’t want to do this?

The court proceeded to dismiss the motion by the defendants.

Accordingly, based on the facts and evidence of record, viewed in the light most favorable to the non-moving plaintiff, we find that a reasonable jury could conclude that the plaintiff was not subjectively. aware of the specific risk of serious injury posed by her participation in the balance beam activity that resulted in her injuries, or that she did not voluntarily accept that risk.

So Now What?

I have no idea what a trimalleolar fracture is. Nor does Word or Grammarly recognize trimalleolar as a word. Yet, this court expected a middle school assistant principal to understand the word, and the risk associated with it.

Let alone the ability, as a leader in a school, or assistant principal, that she does not want to participate in an activity because of the risk. If you don’t learn that in middle school, where are you going to learn it?

Here the court went out of its way to find requirements for the defense to prove that were outlandish and impossible. The only way to win anything like this in Pennsylvania in the future is to have the participants sit down and watch a video describing all the possible ways to get hurt, record the participants watching the video, and then sign an agreement, assumption of the risk or release which says the know and understand the risks and the particular dangers of each risk and that the person signing watched the video.

This decision is a little shocking.

What do you think? Leave a comment.

Jim Moss

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

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor

Outdoor Recreation Insurance, Risk Management, and Law

Recreation Insurance, Risk Management and Law.

To Purchase Go Here:

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

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

Facebook

Threads Logo

X (formerly known as Twitter)

Blue Sky

Mastodon

Stimulus

If you are interested in having me write your release, fill out this Information Form and Contract by clicking here and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

@2024 Summit Magic Publishing, LLC

G-YQ06K3L262

#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, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,

Hazen v. Woodloch Pines Resort, Civil Action 3:21-cv-00174 (M.D. Pa. Feb 16, 2024)

Posted: April 22, 2024 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, Pennsylvania | Tags: Balance Beam, challenge course, Corporate Team Building, Low Challenge Course, Low Course, Ropes course, Team Building, Woodloch Pines Resort | Leave a comment

To Read an Analysis of this decision see: After this decision, I’m not sure you could prove assumption of the risk without a written document and a video or more.

ERIN HAZEN, Plaintiff,
v.
WOODLOCH PINES RESORT d/b/a WOODLOCH PINES, et al., Defendants.

Civil Action No. 3:21-cv-00174

United States District Court, M.D. Pennsylvania

February 16, 2024

MEMORANDUM

(SAPORITO, M. J.)

Woodloch Pines Resort (“Woodloch”) is an all-inclusive family resort located in Pike County, Pennsylvania. Since the 1990s, it has offered corporate team building activities on an outdoor low ropes challenge course. One of the elements of this challenge course was a “balance beam” or “teeter-totter” device made up of a fulcrum with a plank on top of it. The plank or “beam” is 10-feet long and 10%-inches wide. The fulcrum is 12%-inches high and, when at its highest point, the end of the plank or beam is 3%4eet above the surface below. The area below and around the balance beam device was covered with wooden mulch, presumably to, cushion the fall of any participants.

The team was instructed by Eric Ranner, Woodloch’s corporate activities director, that the goal of the balance beam activity was to get the entire 11-person leadership team onto the plank without breaking either of two eggs that had been placed under each end of the plank.^[1] The parties dispute whether Ranner gave any additional verbal instructions or warnings to the participants. Ranner was the only Woodloch employee present at the time.

After two unsuccessful attempts to complete the activity, the team was able to get ten members on the plank at once during its third attempt. When the eleventh team member mounted the plank, it became unbalanced and Hazen fell off, along with other participants.^[2] At least one other participant landed on top of Hazen.

Hazen brought this federal diversity action asserting state-law negligence claims against each of the defendants. The defendants have answered the complaint, and, following the completion of discovery, they have moved for summary judgment. In support of their motion for summary judgment, the defendants argue that Hazen is barred from all recovery by the doctrine of primary assumption of the risk.

Because this is a diversity action, we must apply Pennsylvania’s substantive law and federal procedural law. See Gasperini v. Cir. for Humans., Inc., 518 U.S. 415, 427 (1996). “Under Pennsylvania law, assumption of the risk is established by showing that the injured party fully appreciated the nature of the risk it faced and voluntarily assumed it. In addition, the injured party must not have had a meaningful and reasonable alternative path to avoid the risk.” Kirschbaum v WRGSB Assocs., 243 F.3d 145, 156-57 (3d Cir. 2001) (citation omitted); see also . Mucowski v Clark, 590 A.2d 348, 350 (Pa. Super. Ct. 1991) (“Voluntary assumption of the risk involves a subjective awareness of the risk inherent in an activity and a willingness – to accept it. A plaintiff has voluntarily assumed the risk where he fully understands it and Voluntarily chooses to encounter it.”) (citation omitted and emphasis added). “Under the doctrine of assumption of the risk, a defendant is relieved of its duty to protect a plaintiff where the plaintiff has voluntarily and deliberately proceeded to face a known arid obvious risk arid therefore is considered to have assumed liability for his own injuries.” Barrett v. FredavidBuilders, Inc., 685 A.2d 129,130 (Pa. Super. Ct. 1996); see also Carrender v. Fitterer, 469 A.2d 120, 125 (Pa. 1983) (holding that, when an invitee assumes the risk of injury from a dangerous condition, the landowner no longer owes the invitee a duty of care).

As the Carrender court explained:

A danger is deemed “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.” For a danger to be “known,” it must “not only be known to exist, but. . . also be recognized that it is dangerous and the probability arid gravity of the threatened harm must be appreciated.”

Carrender, 469 A.2d at 123-24 (quoting Restatement (Second) of Torts § 343Acmt. b (Am. L. Inst. 1965)) (citations omitted, ellipsis in original).

“Whether the plaintiff knows of the existence of the risk, or whether he understands and appreciates its magnitude and its unreasonable character, is a question of fact, usually to be determined by the jury under proper instructions from the court. The court may itself determine the issue only where reasonable men could not differ as to the conclusion.”. Staymates E ITT Holub Indus., 527 A.2d 140, 146 (Pa. Super. Ct. 1987) (quoting Restatement (Second) of Torts §496D cmt.e); see also Kaplan v. Exxon Corp., 126 F.3d 221, 225 (3d Cir. 1997); Mucowski,
_:590.A.2d at 350 (quoting Staymatesf Carrender, 469 A.2d at 124. As this court has previously explained:

Given that its application is a “drastic measure” barring a plaintiffs recovery, to grant summary judgment on assumption of the risk as a matter of law the court must-conclusively and beyond question- find that the plaintiff was subjectively aware of a specific risk, voluntarily accepted it and acted in spite of that risk, and suffered harm contemplated by that specific risk. The defendant’s burden to establish assumption of the risk is a tall order, because . assumption of the risk requires knowledge of a specific risk, “It is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks. Rather, the plaintiff must be aware of ‘the particular danger’ from which he is subsequently injured in order to voluntarily assume that risk as a matter of law.”

Smerdon v. GEICO Cas. Co., 342 F.Supp.3d 582, 587 (M.D. Pa. 2018) (quoting Bullman v Giuntoli, 761 A.2d 566, 569 (Pa. Super. Ct. 2000), _:and Barillari v. Ski Sha wnee, Inc., 986 F.Supp.2d 555, 562-63 (M.D. Pa. 2013)) (footnotes omitted).

Here, it is undisputed that Hazen was generally aware of the risk that she might fall from the balance beam during this activity. But “awareness of a general risk does not amount to awareness of a specific risk.” Smerdon, 342 F.Supp.3d at 588 (citing Barillari, 986 F.Supp.2d at 562-63). Awareness of the specific risk presented by the balance beam activity here includes not just an appreciation of the general possibility that she might fall, but also an appreciation of the likelihood of a fall and the potential for serious injury such as the complex multiple ankle fractures and other injuries that our plaintiff in fact suffered.^[4]
See Kirschbaum, 243 F.3d at 157 (finding evidence sufficient to permit a reasonable jury to conclude that office building tenant, who was aware of a broken handrail and that it would not aid him if he were to trip while on the stairs, lacked the necessary appreciation of the likelihood that he could fall and need to rely on the handrail); Rice v. Skytop Lodge Corp., No. 00-2243, 2002 WL 775484, at *3 (M.D. Pa. Apr. 23, 2002) (finding evidence Sufficient to permit a reasonable jury to conclude that a sledder, who was aware of general risks of sledding and who had observed the placement of a plastic fence at the bottom of the sledding hill, did not understand the specific risk of serious injury that might be caused by colliding with the fence); Mucowski, 590 A.2d at 350 (finding evidence sufficient to permit a reasonable jury to conclude that a senior engineering student, who was familiar with a pool and the depth of the water therein, was not subjectively aware of the specific risk that he could Strike his head on the bottom of the pool when diving into 4 feet of water from a railing around the pool). Hazen’s failure to fully appreciate the specific risk of serious injury posed by the balance beam activity is further underscored by the fact that, between herself and all ten of her leadership team colleagues that day, none believed the balance beam activity was so unsafe that they should decline to participate. See Smerdon, 342 F.Supp.3d at 589. “Under Carrender, this issue goes to the jury unless reasonable minds could not disagree.” Kaplan, 126 F.3d at 225.

In addition, We note that, “[a]mong the circumstances to consider in evaluating the voluntariness of the plaintiff’s action is whether the plaintiff had a real ‘choice.'” Kaplan, 126 F.3d at 226 (quoting Howell E Clyde, 620 A.2d 1107 (Pa. 1993) (plurality opinion)). Here, the parties dispute whether Hazen’s participation in the balance beam activity was voluntary. In her affidavit, Hazen has stated that she felt her participation in this team building activity was required rather than voluntary, noting that she had just finished her first year as an assistant principal at the charter school, she was required in that role to lead by example and thus participate fully in team-building activities, and the purpose of this particular activity was to get the entire team of eleven onto the plank at one time. Hazen Aff., Doc. 36’7.^[5] Thus, this element of the defendants’ assumption of the risk defense is also subject to a genuine dispute of material fact.

Accordingly, based on the facts and evidence of record, viewed in the light most favorable to the non-moving plaintiff, we find that a reasonable jury could conclude that the plaintiff was not subjectively . aware of the specific risk of serious injury posed by her participation in the balance beam activity that resulted in her injuries, or that she did not voluntarily accept that risk. Accordingly, the motion for summary judgment will be denied.

An appropriate order follows.

———

Notes:

^[1] In addition to multiple Woodloch corporate entities, Ranner is a named defendant in this action, along with Robert Filarsky, an assistant social director at Woodloch and Ranner’s supervisor that day.

^[2] The evidence suggests that some of the participants may have jumped off the plank, but it is undisputed that Hazen fell.

^[3] After a period of unemployment, Hazen is currently employed in a lower-paying position as a teacher at a different charter school in Morristown, New Jersey.

^[4] We note that, while Hazen could have visually observed the particular dimensions of the balance beam device and ascertained that it was made of wood, she had no experience performing this or similar activities in the past, and she had no knowledge of the device’s particular construction, including its weight capacity or the fact that the plank was not itself secured to the fulcrum.

^[5] In addition to deposition testimony by the parties themselves, deposition testimony by various nonparty witnesses, documentary and photographic evidence, arid expert witness reports, the plaintiff has relied on her owri testimonial affidavit, which is offered as a supplement to her deposition testimony and the other evidence. In their reply brief, the defendants have objected to consideration of this affidavit, arguing that it should be disregarded by the court under the “sham affidavit” doctrine. See generally Daubert E NRA Grp., LLC, 861 F.3d 382, 391 (3d Cir. 2017) (“When a nonmovant’s affidavit contradicts earlier deposition testiiriony without a satisfactory or plausible explanation, a district court -iriay disregard it at summary judgment in deciding if a genuine, material factual dispute exists. This is the sham-affidavit doctrine. In applying it we adhere to a ‘flexible approach,’ giving due regard to the ‘surrounding circumstances.”‘) (citations omitted); Perma Res. & Dev’p Co. v. Singer Co., 410 F.2d 572, 577-78 (2d Cir. 1969) (seminal case on the sham affidavit doctrine). But “the principle does not apply if the deposition and the later sworn statement are not actually contradictory.” Palazzo ex rel. Deimage v. Corio, 232 F.3d 38, 43 (2d Cir. 2000). “To be covered by the sham affidavit doctrine, the affidavit testimony must actually contradict previous deposition testimony, not merely differ from it or be in tension With it.” Ramirez v. Lora, No. 18-11230, 2022 WL 1539176, at *8 (D.N.J. May 16, 2022). Here, the defendants have characterized the plaintiff’s affidavit as “self-serving and boot strapping” and “incredulous,” but they have failed to identify any contradictory testimony whatsoever. See Defs.’ Reply Br. 5-8, Doc. 37. Thus, we decline to disregard the Hazen affidavit as evidence on summary judgment.

———

G-YQ06K3L262

Interesting case where a release stopped claims for poor rescue at an underground amusement park in Kentucky.

Posted: October 2, 2023 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, Indoor Recreation Center, Kentucky, Release (pre-injury contract not to sue) | Tags: Aerial Adventure, assumption of the risk, Louisville Mega Cavern, Mega Quest, Mega Quest Adventure, Release, Ropes course, Suspension Trauma, Waiver | Leave a comment

Most of the decision centers around the instructions given by the court; however, there are great nuggets of help for the industry.

Bradley v. Louisville Mega Cavern, LLC, 2022-CA-0828-MR (Ky. Ct. App. May 19, 2023)

State: Kentucky; Court of Appeals of Kentucky

Plaintiff: Anthony Bradley, Individually and as Administrator of the Estate of Mitzi Westover

Defendant: Louisville Mega Cavern, LLC

Plaintiff Claims: failure to exercise ordinary care in the operation of the Mega Quest course and LMC’s failure to properly train its staff to respond to emergencies

Defendant Defenses: pre-existing health conditions and her own failure to exercise ordinary care and Release

Holding: For Defendant

Year: 2023

Summary

The deceased died at an underground amusement park after failing to maneuver an obstacle. The release she signed was ineffective as a release but was used to prove she assumed the risk of her injuries.

Facts

LMC operates an underground adventure park on the site of a former limestone mine in Louisville, Kentucky.[1] LMC operates several attractions on the site, including an underground, aerial adventure ropes course called Mega Quest. On August 17, 2017, Mitzi Westover, her husband Anthony Bradley, and her niece, Hanna Folk, purchased tickets for Mega Quest. Prior to taking part in any activity at LMC, they were required to read and execute a “Participant Agreement” (“the Agreement”).

As required, Westover, Bradley, and Folk electronically signed the Agreement. They then checked in at the front desk and were provided with equipment for the course. LMC provided a safety briefing and training on the course and use of the equipment. Shortly thereafter, the party began the Mega Quest course. Westover started an element that consisted of two horizontal ladders suspended from overhead wire ropes. Westover fell on the first ladder and was assisted by an LMC employee.

She fell again on the second ladder and was unable to get back on the ladder. The LMC employee called for a rescue via a lower-line kit. Westover was suspended on the harness for between five to eight minutes. Westover was responsive for most of this time. But as she was being lowered, Westover lost consciousness and became unresponsive. LMC called 911, which did not arrive on the scene for another nine minutes. Westover was transported to the hospital, where she died on August 22, 2017.

At trial, the Estate presented evidence that Westover’s death was caused by suspension trauma resulting from her extended time hanging unsupported on the harness. The Estate argued that this suspension trauma was caused by LMC’s failure to exercise ordinary care in the operation of the Mega Quest course and LMC’s failure to properly train its staff to respond to emergencies. In response, LMC argued that Westover’s death was caused by her pre-existing health conditions and her own failure to exercise ordinary care. Following the close of proof, the jury found that the Estate failed to prove that LMC failed to exercise ordinary care in the operation of the Mega Quest course and that such failure was a substantial factor in causing Westover’s death.

Following the close of proof, [trial] the jury found that the Estate failed to prove that LMC failed to exercise ordinary care in the operation of the Mega Quest course and that such failure was a substantial factor in causing Westover’s death.

This appeal followed.

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

The case had some very interesting actions and rulings. The trial judge ruled the release was not valid under Kentucky law and excluded it from the trial for that reason. The court also found that the immunity provided by the Kentucky agritourism-immunity statutes, in the release, were also not applicable and prevented the defendant from using those as a defense.

The trial court then ruled:

The Trial Court concluded that, even though the Release and agritourism-immunity provisions of the Agreement were unenforceable, the Agreement itself was still relevant to the disputed issues of negligence. The Trial Court redacted the bolded agritourism warning at the end of the Agreement, except for the line, “You are assuming the risk of participating in this . . . activity.”

The defendant then moved for a limiting instruction saying that the release could not be viewed as a release, but could prove the risks the deceased assumed. Stated another way, the release was used to prove the deceased assumed the risks of her injuries. The court granted this motion.

The Estate extensively argues that the Release provisions in the Agreement were not enforceable. However, the Trial Court agreed, finding that the release was not enforceable as a waiver or release of LMC’s liability for negligence. LMC does not appeal this ruling. Rather, the question on appeal is whether the Agreement was otherwise relevant to the factual matters in dispute; the question is whether the evidence was relevant, or if the prejudicial effect of the evidence substantially outweighed its probative value.

On appeal, the plaintiff argued the release should not have been used to prove assumption of the risk. The defense fought this argument but did not fight the issue of whether the release was valid under Kentucky law. This was so “weird,” even the appellate court pointed it out.

The issue on appeal then revolved around whether the release, as an assumption of the risk document, was “relevant” under the Kentucky rules of evidence.

All evidence is relevant and should be admitted unless it is specifically excluded under another rule of evidence or a law. However, the first hurdle is the evidence must be relevant.

Under KRE[4] 401, relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Under KRE 402, “[a]ll relevant evidence is admissible” unless otherwise excluded by the law or rules of evidence. “Evidence which is not relevant is not admissible.” KRE 402. Relevance is established by any showing of probativeness, however slight.

The appellate court ruled the trial court was correct. The “agreement” since it was no longer legally a release, was properly admitted to show the deceased assumed the risk which caused her death.

Another way that evidence can be excluded is if the value the evidence offered is outweighed by any negative value it may have. This legal argument is stated as “whether the Agreement’s probative value was substantially outweighed by its prejudicial effect.”

Under Kentucky law that is a three-step test.

To make sure a piece of evidence is admitted in a way that the jury understands the narrow reasons for its introduction and how it can be interpreted a jury instruction can be given with those limitations. Here the plaintiff failed to ask, at the right time, for that limiting instruction. By failing to ask the issue was waived.

The appellate court sided with the plaintiff on the value of the release or agreement as proof of assumption of the risk. But found that the level of damage to the plaintiff’s case was not so great that the case should be reversed on that point.

We agree with the Estate that the introduction of the Release and Indemnity portions of the Agreement posed a risk of confusing the jury. Without a limiting instruction, the jury had no guidance from the Court to determine how that language was to be read. The jury may have also been led to believe that it was to consider the legal issue regarding the enforceability of the Agreement. Under these circumstances, we believe that the Trial Court would have been justified in giving the Estate’s proposed instruction even though the issue was not raised by a contemporaneous objection.

This is great proof that a release can have a second life if properly written.

The next issue was the duties, the legal responsibility; the defendant has to the deceased. These duties are presented to the jury in a jury instruction and as such give the jury the definition they must follow in making their decision.

Here the plaintiffs wanted instructions that stated the defendant had to make the amusement park safe.

However, the trial court and appellate court rejected these instructions. The deceased was a business invitee, and the duties owed to a business invitee were adequately covered in other instructions in this case.

Another relevant issue argued by the plaintiff was whether or not a jury instruction and arguments made should have included the OSHA requirements for the operation of the amusement park. There was testimony that the staff was not trained in first aid or rescue, and OSHA requires both. However, OSHA only applies to employees, and the deceased was a patron of the park, not an employee.

Because OSHA standards only apply to employees, the plaintiff was correctly prohibited from giving these arguments.

The court upheld the ruling for the defendant in this case. Although mistakes were made, as there are in most trials, those mistakes were discretionary on the part of the court and did not rise to the level to change the outcome of the trial.

We conclude that the Trial Court’s evidentiary rulings and jury instructions did not amount to an abuse of discretion. Although the Agreement was not relevant to prove that Westover or her Estate waived any claim to liability based on LMC’s negligence, it was relevant and admissible as to the other disputed issues of negligence. Furthermore, the prejudicial effect of the Agreement did not substantially outweigh its probative value on these matters. The Release and Indemnity language in the Agreement was potentially misleading. However, the Estate did not make a contemporaneous request for an admonition. Therefore, the Trial Court’s failure to grant a limiting instruction did not amount to palpable error.

This decision is difficult to read because the arguments are couched in procedural and evidentiary issues rather than interpretation of the facts. However, that is how most cases are overturned at the appellate level, because of evidence or procedure, rather than what law is applied to the facts of the case.

So Now What?

Here is proof that writing your release to cover the risks associated with the activity or sport you are offering to the public has additional value. Granted, having the release written correctly to begin with might have saved a lot of this argument, but in any case, where your release is thrown out as a legal argument, assumption of the risk is a valid defense. Having your release written to cover the legal and knowledge issues, as in this case, may save your business.

What do you think? Leave a comment.

Jim Moss

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

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor

Outdoor Recreation Insurance, Risk Management, and Law

Recreation Insurance, Risk Management and Law.

To Purchase Go Here:

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

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

Threads

Facebook Logo

X, Formerly Twitter

Recreation Law

If you are interested in having me write your release, fill out this Information Form and Contract by clicking here and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

@2023 Summit Magic Publishing, LLC

G-YQ06K3L262

Bradley v. Louisville Mega Cavern, LLC, 2022-CA-0828-MR (Ky. Ct. App. May 19, 2023)

Posted: October 2, 2023 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, Indoor Recreation Center, Kentucky, Release (pre-injury contract not to sue) | Tags: Agritourism, Amusement Park, assumption of the risk, Kentucky, Mega Quest, Mega Quest Aerial Challenge, OSHA, Release, Underground Amusement Park, Waiver | Leave a comment

To Read an Analysis of this decision see:

Interesting case where a release stopped claims for poor rescue at an underground amusement park in Kentucky.

Bradley v. Louisville Mega Cavern, LLC, 2022-CA-0828-MR (Ky. Ct. App. May 19, 2023)

ANTHONY BRADLEY, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF MITZI WESTOVER APPELLANTS
v.
LOUISVILLE MEGA CAVERN, LLC APPELLEE

No. 2022-CA-0828-MR

Court of Appeals of Kentucky

May 19, 2023

NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE ANNIE O’CONNELL, JUDGE ACTION NO. 18-CI-004436

BRIEF FOR APPELLANTS:

Brenton D. Stanley

Jason Swinney

Louisville, Kentucky

Molly B. Stanley

Louisville, Kentucky

Kevin C. Burke

Jamie K. Neal

Louisville, Kentucky

BRIEF FOR APPELLEE:

Maxwell D. Smith

Ashley K. Brown

Betsy R. Catron

William J. Barker II

Lexington, Kentucky

BEFORE: CALDWELL, DIXON, AND ECKERLE, JUDGES.

OPINION

ECKERLE, JUDGE:

Anthony Bradley, Individually and as Administrator of the Estate of Mitzi Westover (collectively, “the Estate”) appeals from a judgment of the Jefferson Circuit Court that confirmed a jury verdict in favor of Louisville Mega Cavern, L.L.C. (“LMC”). The Estate argues that the trial court abused its discretion in its evidentiary rulings and in its instructions to the jury. Finding no abuse of discretion, we affirm.

I.
Facts and Procedural History

LMC operates an underground adventure park on the site of a former limestone mine in Louisville, Kentucky.^[1] LMC operates several attractions on the site, including an underground, aerial adventure ropes course called Mega Quest. On August 17, 2017, Mitzi Westover, her husband Anthony Bradley, and her niece, Hanna Folk, purchased tickets for Mega Quest. Prior to taking part in any activity at LMC, they were required to read and execute a “Participant Agreement” (“the Agreement”). The Agreement describes the course as follows:

The Mega Quest aerial challenge course is self-guided and includes short ziplines, sky bridges and walkways, (some inclined), located high in the cavern and some consisting of planking supported by steel cables and cable handrails. Mega Quest Participants are responsible for making all Equipment Transfers on their own after watching a training video, the careful viewing of which is extremely important and receiving instructions and training from tour guides using special equipment. The age limit for the Mega Quest challenge course is five years old. Participants must be able to reach a height of 50 inches with the palm of the hand with an outstretched arm while standing flatfooted on the floor, and weigh less than 310 pounds.

In addition, the Agreement addressed medical and safety concerns, stating:

The activities are designed for Participants of average mobility and strength who are in reasonably good health. Underlying medical problems including for example obesity, high blood pressure, cardiac and coronary artery disease, pulmonary problems, pregnancy, arthritis, tendonitis, other joint and muscular skeletal problems, or other medical, physical, psychological and psychiatric problems, may impair the safety and wellbeing of Participants on the course. All such conditions may increase the inherent risks of the experience and cause Participants to be a danger to themselves or others and Participants therefore must carefully consider those risks before choosing to participate, and they must fully inform the Provider or its staff of any issues, in writing, prior to using the Facilities. Provider reserves the right to exclude anyone from participating because of medical, safety, or other reasons it deems appropriate. Participant . . .: (1) represents that each Participant or Minor Participant is physically able to participate in the activities without being a danger to themselves or to others; (2) acknowledges that participation is purely voluntary, and done so in spite of the risks (3) is not pregnant, nor under the influence of alcohol, illegal drugs, or impairing legal drugs; (4) agrees to abide by all instructions provided by the Provider or the Provider’s staff; (5) will not make any adjustments to zipline or challenge course equipment but, instead, will allow all adjustments to be made only by or with the assistance of Provider or Provider’s staff; (6) will not intentionally flip over or invert while riding on the ziplines.

The Agreement goes on to identify “inherent” risks in the Mega Cavern:

Serious injuries can occur in zipline courses, challenge course tours, and bike park activities including the risk of injury or death. Risks include among others the following: falls, contact with other participants and fixed or falling objects, and moving about or being transported over the sometimes uneven terrain and grounds on which the activities are initiated and conducted[.] . . . The physical risks range from small scrapes and bruises to bites and stings, broken bones, sprains, neurological damage, and in extraordinary cases, even death. These risks, and others, are inherent to the activities that is, they cannot be eliminated without changing the essential nature, educational and other values of the experience. In all cases, these inherent risks, and other risks which may not be inherent, whether or not described above must be accepted by those who choose to participate.

Following these disclosures, the Agreement states that the participant understands the nature of the activities and voluntarily assumes the risks involved. This provision also states that LMC “has no duty to protect against the risks of illness, injury and death associated with these activities inherent and otherwise, and whether or not described above, including those which may result from negligent acts or omissions of other participants or staff.”

The Agreement also included a “Release and Indemnity” provision, stating that each participant will release, hold harmless, and indemnify LMC for any injuries caused by the activity, including claims of negligence and gross negligence. This section further states that the participant agrees as follows:

not to sue [Provider] for any liability for causes of action, claims and demands of any kind and nature whatsoever, including personal injury and death, products and premises liability and otherwise, that may arise out of or relate in any way to my . . . enrollment or participation in Provider’s programs. The claims hereby indemnified against include, among others, claims of participants and members of my . . . family, arising out of losses caused by, or suffered by me . . . . The agreements of release and indemnity include claims of negligence of a Released Party including without limitation claims of gross negligence, but not claims of willful injury.

The Agreement concluded with bolded language stating:

WARNING

Under Kentucky law, there is no liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism location if injury or death results exclusively from the inherent risks of the agritourism activity and in the absence of negligence. You are assuming the risk of participating in this agritourism activity. KRS^[2] 247.800-247.8010.

On July 31, 2018, Bradley, individually and as administrator of Westover’s Estate, brought this action against LMC asserting claims of personal injury and wrongful death. Bradley separately asserted a claim for loss of spousal consortium. LMC moved for summary judgment based on the “Release and Indemnity” provisions in the Agreement. LMC also argued that it was entitled to agritourism immunity under KRS 247.809. The Trial Court denied the motion for summary judgment, concluding that the pre-injury release was not enforceable. The Court also determined that LMC was not entitled to immunity under KRS 247.809.

Prior to trial, the Estate moved to exclude any reference to the Agreement, arguing that it was not relevant based on the Court’s finding it was unenforceable. LMC responded that the Agreement was relevant to show she had been informed of the risks of the activity, and that she had agreed she was able to participate without being a danger to herself or others. The Trial Court agreed with LMC and allowed introduction of the Agreement.

The Estate filed a motion for a new trial pursuant to CR^[3] 59.01. The Trial Court denied the motion and entered a judgment dismissing based upon the jury’s verdict. The Estate now appeals. Additional facts will be set forth below as necessary.

II.
Standard of Review

A trial court is vested with broad discretion in granting or denying a new trial, and its decision will not be reversed unless it was “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Since the Trial Court had the direct opportunity to consider the evidence and the conduct of the parties, any doubts must be resolved in favor of the Trial Court. CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 73 (Ky. 2010).

In this case, the Estate first argues that it was entitled to a new trial because the Trial Court erroneously admitted certain evidence. We review the Trial Court’s evidentiary rulings for abuse of discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id. at 581. More specifically, a court abuses the discretion afforded it when “(1) its decision rests on an error of law . . . or a clearly erroneous factual finding, or (2) its decision . . . cannot be located within the range of permissible decisions.” Miller v. Eldridge, 146 S.W.3d 909, 915 n.11 (Ky. 2004) (cleaned up).

III. Admission of the Agreement into Evidence

The Estate first raises several issues relating to the Trial Court’s admission of the Agreement into evidence. Based on the Trial Court’s finding that the Release and agritourism-immunity provisions in the Agreement were unenforceable, the Estate filed a motion in limine to exclude the Agreement or any reference to it at trial. The Estate argued that the Release provisions were irrelevant and likely to confuse the jury with matters not at issue.

In response, LMC noted that the Agreement set out the risks of the activity, including to persons with health issues. By signing the Agreement, Westover stated that she was aware of the risks, she was physically capable of performing the Mega Quest course, and that she was not under the influence of any illegal or legal intoxicating drugs. LMC argued that the disclosures in the Agreement were relevant to show that Westover failed to exercise ordinary care in undertaking the Mega Quest course. LMC further argued that the Agreement was relevant to show that Westover failed to inform LMC of her medical conditions or her medications.

Subsequently, the Estate requested a limiting instruction advising the jury that the Release was unenforceable, but “you may consider the ‘Participant Agreement’ for the purpose of determining whether Mitzi Westover was aware of the risks associated with the ‘Mega Quest’ ropes course.” The Trial Court declined to provide this instruction to the jury.

Under KRE^[4] 401, relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Under KRE 402, “[a]ll relevant evidence is admissible” unless otherwise excluded by the law or rules of evidence. “Evidence which is not relevant is not admissible.” KRE 402. Relevance is established by any showing of probativeness, however slight. Springer v. Commonwealth, 998 S.W.2d 439, 449 (Ky. 1999). However, under KRE 403, even relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”

The Estate cites two out-of-state cases holding that it is prejudicial error to admit an unenforceable liability-limiting agreement. Matador Production Co. v. Weatherford Artificial Lift Systems, Inc., 450 S.W.3d 580, 594 (Tex. App. 2014); and Blue Valley Co-op v. National Farmers Organization, 600 N.W.2d 786, 793-96 (Neb. 1999), overruled on other grounds by Weyh v. Gottsch, 303 Neb. 280, 929 N.W.2d 40 (2019). However, in both cases there were no claims that the agreements were relevant for any reason except as a waiver of liability. Matador, 450 S.W.3d at 595; Blue Valley, 600 N.W.2d at 794. In this case, the Trial Court expressly found that the Agreement was relevant to the disputed issues of negligence. Those issues included whether LMC notified Westover of the inherent risks of the activity, as well as any risks that the activity may have posed to individuals with limited mobility or medical conditions.

LMC further argued that the Agreement was relevant to determine the adequacy of its warnings. The Trial Court also concluded that the Agreement was a party admission by Westover under KRE 801A(b). By signing the Agreement, the Trial Court found that Westover manifested her assent to and adoption of the disclosures in the Agreement, as well as her own representations that she was physically capable of performing the activity. Obviously, the Estate raised other disputed issues of negligence, including whether LMC staff was adequately trained and had access to proper equipment in the event of an emergency.

While the Agreement may not have been admissible to prove that Westover waived or released LMC from liability for its own negligence, it was otherwise relevant to show whether Westover was informed of the risks of the Mega Quest course, as well as whether she properly informed LMC of any physical or medical conditions and medications that may have affected her safety on the course. Because these issues were relevant to the disputed issues of negligence, we conclude that the Trial Court did not abuse its discretion by allowing LMC to introduce the Agreement into evidence.

The more significant question is whether the Agreement’s probative value was substantially outweighed by its prejudicial effect. The Estate contends that the Release and Indemnity language was likely to confuse the jury about the ultimate issue of liability. Specifically, the Estate argues that the language may have misled the jury into believing that Westover had waived her right to claim negligence by LMC.

The Trial Court must make three basic inquiries when making a determination under KRE 403: (1) assessment of the probative worth of the evidence whose exclusion is sought; (2) consideration of the probable impact of specified, undesirable consequences likely to flow from its admission (i.e., “undue prejudice, confusion of the issues, or misleading the jury, . . . undue delay, or needless presentation of cumulative evidence”); and (3) a determination of whether the harmful effects from admission exceeds the probative worth of evidence. Webb v. Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012) (citing Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996), overruled on other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky. 2008)). The task of weighing the probative value and undue prejudice of proffered evidence is inherently factual and, therefore, within the discretion of the Trial Court. Ross v. Commonwealth, 455 S.W.3d 899, 910 (Ky. 2015).

Here, the Estate asserts the jury was likely to be confused or misled by the Release and Indemnity language in the Agreement. But the Estate does not point to any testimony, evidence, or argument that emphasized the language or suggested that it was controlling as to LMC’s liability. Furthermore, the Trial Court redacted the bolded language excluding liability for injury or death arising from an agritourism activity, except for the assumption-of-risk language, but the Trial Court did not redact the Release and Indemnity provision at the Estate’s request. Under the circumstances, the Estate has not shown the prejudicial effect of the Agreement substantially outweighed its probative value.

Along similar lines, the Estate requested an instruction advising the jury that the Agreement’s Release and Indemnity language was unenforceable. The proposed instruction stated that “you may not determine that [LMC] is immune from lawsuit. However, you may consider the ‘Participant Agreement’ for the purpose of determining whether Mitzi Westover was aware of the risks associated with participation in the ‘Mega Quest’ ropes course.” The Estate takes the position that it was entitled to this limiting instruction under KRE 105(a), which provides as follows:

When evidence which is admissible as to one (1) party or for one (1) purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly. In the absence of such a request, the admission of the evidence by the trial judge without limitation shall not be a ground for complaint on appeal, except under the palpable error rule.

As discussed above, the Agreement was relevant and admissible as it related to the disputed issues of negligence and as a party admission. But the Agreement was not admissible for LMC to avoid liability under its waiver and release provisions. Indeed, the construction and enforceability of a written instrument are matters of law for the Trial Court to decide, not the jury. See
Morganfield National Bank v. Damien Elder & Sons, 836 S.W.2d 893 (Ky. 1992), and Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998). The Estate points out that KRE 105 required the Trial Court to give the instruction “upon request.” Consequently, the Estate argues that the Trial Court’s failure to give the instruction constitutes reversible error.

In denying the request, the Trial Court took the position that KRE 105 required the Estate to move for an admonition to the jury at the time the Agreement was introduced, and it was not a proper matter for jury instructions. The Kentucky Supreme Court addressed this issue in St. Clair v. Commonwealth, 140 S.W.3d 510 (Ky. 2004). In that case, a defendant waited until the close of evidence to request a limiting instruction as to the appropriate purpose of certain evidence pursuant to KRE 105. The Court held that

[a]lthough the substantive distinction between admonitions and instructions is not always clear or closely hewn to, we interpret the first word of KRE 105(a), i.e., “when,” to mean that the request for a “limited purpose” admonition must be made at the time that the evidence in question is admitted and no later than after the direct examination at which the evidence is introduced.

Id. at 559 (emphasis in original) (internal quotation marks and citations omitted). More recently, our Supreme Court reiterated this point, holding that, “[a]lthough it is within the trial court’s discretion to determine when the admonition should be given, it must be requested ‘no later than after the direct examination’ where the evidence is introduced.” Posey v. Commonwealth, 595 S.W.3d 81, 87 (Ky. 2019) (quoting St. Clair, 140 S.W.3d at 559). Because the Estate failed to request an admonition at the time the Agreement was introduced, we may only review the Trial Court’s denial of an instruction for palpable error.

In the civil context, CR 61.02 defines “palpable error” as an error that affects the substantial rights of a party. An appellate court may review an error and grant appropriate relief, even though the issue is insufficiently raised or preserved for review, “upon a determination that manifest injustice has resulted from the error.” “Manifest injustice” means that “if, upon consideration of the whole case, a substantial possibility does not exist that the result would have been different, the error will be deemed nonprejudicial.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006) (interpreting language in RCr^[5] 10.26, which has been construed “identically” to CR 61.02. See Nami Resources Company, L.L.C. v. Asher Land and Mineral, Ltd., 554 S.W.3d 323, 338 (Ky. 2018)) (citing Graves v. Commonwealth, 17 S.W.3d 858, 864 (Ky. 2000)).

Having said this, the mere possibility of prejudice is not enough to show manifest injustice. The Estate must show a likelihood – “a reasonable possibility” – that, but for the failure to give the instruction, a different result would have occurred. Parker v. Commonwealth, 482 S.W.3d 394, 407-08 (Ky. 2016). “Implicit in the concept of palpable error correction is that the error is so obvious that the trial court was remiss in failing to act upon it sua sponte.” Nami Res., 554 S.W.3d at 338 (Ky. 2018) (quoting Lamb v. Commonwealth, 510 S.W.3d 316, 325 (Ky. 2017)).

Prior to trial, the Estate sought to exclude introduction of the Agreement as irrelevant. The parties extensively litigated this matter, resulting in the Trial Court’s ruling that the Release portions of the Agreement were unenforceable, but that the Agreement was admissible for other purposes. Prior to introduction of the Agreement, the parties also discussed whether portions of the Agreement should be redacted. Based on these discussions, the Trial Court redacted a significant portion of the emphasized language. The Trial Court may well have concluded that the Estate’s decision not to request an admonition was a strategic choice to avoid emphasizing the remaining language in the Agreement.

At trial, LMC emphasized the language in the Agreement describing the risks of the activity and addressing the health and safety concerns. But as noted above, LMC neither argued that the Agreement was controlling as to liability, nor did it suggest that Westover waived her right to recover for any negligence on its part. Therefore, we must conclude that the Estate failed to establish that the Trial Court’s declination to give the limiting instruction amounted to palpable error.

IV. Instructions on LMC’s duties

The Estate also argues that the Trial Court erred by failing to give complete jury instructions on the issue of LMC’s duties. The Trial Court’s instruction advised the jury that LMC had the following duty:

to exercise ordinary care for the safety of its patrons. “Ordinary Care,” as applied to [LMC], means such care as you would expect an ordinarily prudent company engage[d] in the same type of business to exercise under similar circumstances.

The Estate’s proposed instruction included the “ordinary care” language, but also stated LMC’s general duty included the following specific duties:

to make the condition of the “Mega Quest” ropes course reasonably safe; and

(1) to discover unreasonable risks of harm associated with the “Mega Quest” ropes course; and either

(a) take active steps to make the risks safe; or

(b) give adequate warning of those risks.

The Estate’s proposed instruction further defined “unreasonable risk” as:

one that is recognized by a reasonable company in similar circumstances as one that should be avoided or minimized, or one that is in fact recognized by [LMC]. Even if you find that [LMC] adequately warned of the risks associated with participation in the “Mega Quest” ropes course, you may find that [LMC] failed to exercise ordinary care by failing to adopt further precautions against those risks, if it was foreseeable that, despite the warning, some risk of harm remained.

The Estate argues that it was entitled to instructions on the specific duties supporting its cause of action against LMC. A party plaintiff is entitled to have its theory of the case submitted to the jury if there is any evidence to sustain it. Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 250 (Ky. 1995), overruled on other
grounds by Martin v. Ohio Cnty. Hosp. Corp., 295 S.W.3d 104 (Ky. 2009). However, Kentucky law generally requires the use of “bare bones” instructions. Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 229 (Ky. 2005) (citing Lumpkins v. City of
Louisville, 157 S.W.3d 601, 605 (Ky. 2005)). “Bare bones” instructions are proper if they correctly advise the jury about “what [it] must believe from the evidence in order to return a verdict in favor of the party who bears the burden of proof” on that issue. Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 824 (Ky. 1992). The question on appeal is whether the allegedly erroneous instruction misstated the law. Id. at 823.

In Smith v. Smith, 563 S.W.3d 14, 18 (Ky. 2018), our Supreme Court held that a single, “ordinary care” jury instruction does not properly instruct the jury when liability is based upon land classifications or the possessor’s duty based upon those classifications. Id. But in that case, there was a factual issue as to whether the plaintiff was a licensee, a public invitee, or a business invitee. Id. at 17-18. Thus, the separate instruction was necessary for the jury to determine the applicable standard of ordinary care.

In this case, the Estate argued that LMC’s duties of ordinary care included duties to make the premises reasonably safe, to discover unreasonable risks of harm associated with the ropes course, and to take active steps to make those risks safe or to give adequate warning of those risks. Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 913-14 (Ky. 2013). But as noted in Shelton, the issue of duty is a purely legal one, while the standard of care is a factual question. Id. at 914. Here, there was no question that Westover was a business invitee.

Although the Estate asserts that LMC breached its duties to discover unreasonable risks of harm associated with the ropes course, its claims at trial were that LMC failed to use ordinary care in the operation of the ropes course and failed to give Westover adequate warning of the potential risks arising from negligence by either LMC or Westover. Any additional duties could be further explained during closing argument. Olfice, Inc., 173 S.W.3d at 230. Since these duties are adequately covered by the duty of ordinary care, the Trial Court did not abuse its discretion by denying the Estate’s proffered instruction.

V.
Admission of Evidence of Hydrocodone in Westover’s urine

The Estate additionally argues that the Trial Court abused its discretion by admitting evidence of hydrocodone in Westover’s urine. Prior to trial, the Estate filed a motion in limine to exclude a toxicology report showing that Westover had oxycodone and oxymorphone in her blood and hydrocodone in her urine when she was admitted to the hospital. Based on the toxicology report, LMC’s expert witness, Dr. William Smock, was prepared to testify that Westover had levels of oxycodone and hydrocodone in her system, but he was not able to definitively state that these levels caused any impairment or intoxication. Dr. Smock stated that Westover had a prescription for oxycodone, and that oxymorphone is a metabolite of oxycodone. But he could not locate her prescription for hydrocodone. LMC’s other medical expert, Dr. Greg Davis, provided similar testimony.

The Estate argues that the evidence and testimony should be excluded because neither physician could state with any reasonable certainty that Westover was impaired or intoxicated when she undertook the Mega Quest course. The Estate also contends that LMC sought to use the testimony as improper character evidence, branding Westover as an illicit drug user. But, as previously noted, LMC responded that the evidence was relevant because Westover represented that she was not under the influence of any impairing drugs. The Trial Court agreed with LMC and denied the Estate’s motion.

Generally, an expert’s opinion must be couched in terms of probability or reasonable certainty, and opinions which are expressed using language such as “possibility” may be properly excluded as speculative. Combs v. Stortz, 276 S.W.3d 282, 296 (Ky. App. 2009) (citing Schulz v. Celotex Corp., 942 F.2d 204, 208-09 (3d Cir. 1991)). But unlike in Calhoun v. CSX Transp., Inc., No. 2007-CA-001651-MR, 2009 WL 152970, at *13 (Ky. App. Jan. 23, 2009), aff’d in part, rev’d in part, 331 S.W.3d 236 (Ky. 2011), Drs. Smock and Davis were not testifying that Westover’s use of opiates caused her to be impaired or contributed to her injury. They merely testified as to the presence of those substances in her blood and urine at the time of her death.

While KRE 404(b) protects against the introduction of extrinsic act evidence when the evidence is offered solely to prove character, it allows such evidence to be introduced for a proper purpose. Burton v. Commonwealth, 300 S.W.3d 126, 136 (Ky. 2009). This evidence was relevant to show that Westover failed to disclose her use of these substances when she executed the Agreement. Furthermore, the testimony of Drs. Smock and Davis was subject to vigorous cross-examination, during which both admitted that there was no evidence that Westover was impaired.

The Estate maintains that LMC sought to portray Westover as an illicit user of hydrocodone. However, Dr. Davis conceded that Westover may have had a prescription for hydrocodone even though the prescription could not be located at the time of trial. The Estate also presented evidence that trace amounts of hydrocodone may have been found in Westover’s prescription for oxycodone. In addition, the Estate does not point to any evidence, testimony, or argument at trial suggesting that Westover should be denied relief because of her use of these drugs. Because the evidence was relevant and not unduly prejudicial, we cannot find that the Trial Court abused its discretion by allowing evidence and testimony concerning the presence of hydrocodone in Westover’s urine.

VI. Limitation on Cross-Examination

The Estate also argues that the Trial Court abused its discretion by limiting its ability to cross-examine LMC witnesses regarding standards and literature published by the Occupational Health and Safety Administration (“OSHA”). At trial, LMC’s owner, Jim Lowry, testified that LMC was not required to train its staff in first aid or CPR. LMC’s former safety manager, Kimberly Coleman, also testified that it was her understanding that LMC was not required to train its employees to the standards set out by OSHA and the Association for Challenge Course Technology (“ACCT”). When the Estate sought to cross-examine these witnesses about these standards, LMC responded that the OSHA standards were only applicable to employees and not participants in the activity. The Trial Court agreed and precluded the Estate from cross-examining the witness on this matter.

The Estate contends that the OSHA standards and literature were relevant to determine the standard of care expected of an operator of a ropes course and zip line such as LMC. But while industry standards or manuals can inform the standard of care that will satisfy a duty, neither establishes the duty itself. Spencer v. Arnold, No. 2018-CA-000479-MR, 2020 WL 4500588, at *7 (Ky. App. Jul. 24, 2020) (citing Carman v. Dunaway Timber Co., Inc., 949 S.W.2d 569, 571 (Ky. 1997)). As the Trial Court noted, the OSHA regulations and literature specifically referred to the duties owed to employees, not participants. Furthermore, Kentucky had not adopted the ACCT standards at the time of Westover’s injuries. Given the limited relevance of these materials, the Trial Court did not abuse its discretion by restricting the Estate’s cross-examination on these matters.

VII. Exclusion of portions of deposition testimony by LMC’s CR 30.02(b) representative

Finally, LMC designated General Manager Jeremiah Heath as its corporate representative pursuant to CR 30.02(6). Following Heath’s testimony at trial, the Estate sought to read two portions of Heath’s deposition into the record. Specifically, the Estate wanted to introduce deposition testimony in which Heath stated that he had informed LMC employees that they were not allowed to perform CPR. LMC objected, noting that the Estate had an opportunity to cross-examine Heath with his deposition testimony. The Trial Court agreed and sustained LMC’s objection.

The Estate notes that CR 32.01(b) permits the deposition of a corporate representative to be “used by an adverse party for any purpose.” The Estate further notes that the rule permits testimony to be read to the jury even though the designee is available to testify in person. Lambert v. Franklin Real Est. Co., 37 S.W.3d 770, 779 (Ky. App. 2000)(citing Kurt A. Philipps, Jr., 6 Kentucky Practice, CR 32.01 (5th ed. 1995)). However, that language is limited to use of testimony “admissible under the rules of evidence as though the witness were then present and testifying.” Hashmi v. Kelly, 379 S.W.3d 108, 112 (Ky. 2012) (quoting CR 32.01).

While the rule clearly permitted the Estate to cross-examine Heath with his prior deposition testimony, we agree with the Trial Court that his deposition testimony was not separately admissible after he testified. Use of the deposition in this manner would have been substantially prejudicial because LMC would have lacked the opportunity to rebut or explain the testimony without recalling Heath. See Graves by & Through Graves v. Jones, No. 2019-CA-0880-MR, 2021 WL 1431851, at *8 (Ky. App. Apr. 16, 2021). Furthermore, the Trial Court noted that it had sustained several of LMC’s objections during those portions of Heath’s deposition. Those sustained objections would have further limited the admissibility of those portions of the deposition. Given these considerations, we cannot find that the Trial Court abused its discretion by denying the Estate’s untimely request to read these portions of Heath’s deposition testimony to the jury.

VIII. Conclusion

The Trial Court’s instructions accurately stated the applicable law and correctly advised the jury about what it needed to believe from the evidence to return a verdict in favor of the Estate. We also conclude that the medical evidence concerning the presence of hydrocodone in Westover’s urine was relevant and not unfairly prejudicial. Finally, the Trial Court did not abuse its discretion by limiting the Estate’s cross-examination on OSHA standards or by declining to read Heath’s deposition into the record after he had testified. Consequently, we find no basis to disturb the jury’s verdict.

Accordingly, we affirm the judgment of the Jefferson Circuit Court.

ALL CONCUR.

———

Notes:

^[1] The property comprising the former limestone mine is owned by Louisville Underground, L.L.C. The Estate named that entity as a party defendant in its complaint. However, it was dismissed by agreed order prior to trial and is not a party to this appeal.

^[2] Kentucky Revised Statutes.

^[3] Kentucky Rules of Civil Procedure.

^[4] Kentucky Rules of Evidence.

^[5] Kentucky Rules of Criminal Procedure.

———

Kentucky appellate court upholds the use of a release to stop claims from injuries using a zip line.

Posted: October 31, 2022 | Author: Recreation Law | Filed under: Kentucky, Release (pre-injury contract not to sue), Zip Line | Tags: Exculpatory Agreement, Kentucky, Landing Platform, Mammoth Cave Adventures, Release, zip line | Leave a comment

Plaintiff did not make very good arguments, and the court pointed that out.

Bowling v. Mammoth Cave Adventures, LLC (Ky. Ct. App. 2020)

State: Kentucky: Commonwealth of Kentucky Court of Appeals

Plaintiff: Billy D. Bowling

Defendant: Mammoth Cave Adventures, LLC

Plaintiff Claims: (1) an employee of MCA negligently misrepresented that he could zip line despite being over the weight limit, (2) MCA was negligent in not lighting the course or landing area, and (3) the doctrine of equitable estoppel applies.

Defendant Defenses: Release

Holding: For the Defendant

Year: 2020

Summary

Release was sufficient to bar the claims of the plaintiff injured when arriving at the landing platform. More importantly, since the plaintiff did not argue any reasons why the release was invalid; the court really did not review the issues. Did the release the four requirements to be valid under Kentucky law, which it did? Case closed.

Facts

Facts are sparse, but then so is the legal arguments made by the plaintiff.

On June 10, 2017, Bowling went to MCA to zip line with his friends. Before engaging in the activity, Bowling signed a release of liability. Bowling injured his right ankle when approaching the landing platform.

The plaintiff then sued for negligence arguing “the zip lining course and landing ramp were unlit, which resulted in his injury.” There are also statements in the decision that there was a weight limit for people riding the zip line, but it was not a fact argued by the plaintiff.

The trial court granted the defendants motion for summary judgement, and the plaintiff appealed.

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

There were only two legal issues discussed by the appellate court. The first was whether the release was valid and stopped the plaintiff’s claims. Under Kentucky law, for a release to be valid.

…a preinjury release will be upheld only if (1) it explicitly expresses an intention to exonerate by using the word “negligence;” or (2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or (3) protection against negligence is the only reasonable construction of the contract language; or (4) the hazard experienced was clearly within the contemplation of the provision. “Thus, an exculpatory clause must clearly set out the negligence for which liability is to be avoided.”

However, the plaintiff failed to argue that the release did not meet the Kentucky requirements. The plaintiff raised no arguments that the release was not valid so the appellate court properly accepted the trial courts decision that it was. “Bowling fails to assert why the agreement at issue is unenforceable.”

The next issue was even a shorter discussion. The plaintiff brought up on appeal the issue that the release was void based on an estoppel argument. However, since that argument had not been raised in the lower court, it could not be argued on appeal. “It is axiomatic that a party may not raise an issue for the first time on appeal.”

There was also a dissent to the opinion. The dissent made several arguments that the case should be sent back because the allegations in the complaint rose to the level of willful and wanton actions, which would not be covered by the release.

The dissent also made an argument that the release did not fully tell the plaintiff of the possible risks.

The release uses only the word “negligence.” The release does specifically and explicitly release MCA from liability for ordinary negligence claims. The language of the release is specific as to its purpose to exonerate MCA from ordinary negligence liability only. The release specifically warns that zip line activity is dangerous, without any detailed explanation or discussion.

We are seeing more cases with this argument. That a release needs more than just the legal clause that releases the defendant from his or her own negligence. The release also needs to explain the dangers of the activity to the possible plaintiff.

The final argument seems to be an extension of the above argument, that the release needs to point out specific risks to the signor.

Additionally, Bowling alleges there was no lighting on the landing, which is also a disputed factual issue, which would make an inherently dangerous activity even more dangerous. If true, this would clearly be an enhancement to the danger of the activity that would require, at minimum, disclosure and perhaps a warning. The release makes no reference to the lack of lighting on the landing and its enhancement of the dangerous activity.

So Now What?

Looking at a dissenting opinion does not help much in learning current law. The defendant won. However, the dissenting opinion can be important in making sure your release is up to any possible future changes to the law.

If the dissenting judge has more judges join the court that agree or the dissenting judge convinces other judges that his opinion has some important points, the dissent could be a majority opinion in the future. A win now, might not be a win in the future if your release is written to meet the needs of the law today and the possible changes in the law tomorrow.

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

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

G-YQ06K3L262

What do you think? Leave a comment.

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

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Outdoor Recreation Insurance, Risk Management and Law

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

@2023 Summit Magic Publishing, LLC

G-YQ06K3L262

Bowling v. Mammoth Cave Adventures, LLC (Ky. Ct. App. 2020)

To Read an Analysis of this decision see: Kentucky appellate court upholds the use of a release to stop claims from injuries using a zip line.

BILLY D. BOWLING APPELLANT
v.
MAMMOTH CAVE ADVENTURES, LLC APPELLEE

NO. 2019-CA-000822-MR

Commonwealth of Kentucky Court of Appeals

APRIL 24, 2020

NOT TO BE PUBLISHED

APPEAL FROM BARREN CIRCUIT COURT
HONORABLE JOHN T. ALEXANDER, JUDGE
ACTION NO. 18-CI-00357

OPINION
AFFIRMING

** ** ** ** **

BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES.

GOODWINE, JUDGE: Billy D. Bowling (“Bowling”) appeals the Barren Circuit Court’s order granting summary judgment in favor of Mammoth Cave Adventures, LLC (“MCA”). The circuit court found the exculpatory agreement between the parties was enforceable. On appeal, Bowling argues material facts precluded summary judgment. After careful review of the record, finding no error, we affirm.

On June 8, 2018, Bowling filed suit against MCA in Barren Circuit Court alleging he was injured as a result of MCA’s negligence. He asserted the zip lining course and landing ramp were unlit, which resulted in his injury.

MCA moved for summary judgment, arguing the release of liability was an enforceable exculpatory agreement under Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005). Because the agreement was enforceable, MCA was not liable for any alleged negligent conduct.

The circuit court heard MCA’s motion on February 25, 2019. On April 18, 2019, the circuit court entered an order granting summary judgment in favor of MCA. The circuit court examined the release of liability, which provides:

RELEASE OF LIABILITY

In consideration of being given the opportunity to participate in the zip line activities of Mammoth Cave Adventures, LLC, I, on behalf of myself, my personal representatives, assigns, heirs and next of kin, do hereby state as follows:

1. I acknowledge that participating in the zip line activity is dangerous. I understand the nature and rigors of the activity and the risk involved in participation.

2. I wish to participate in the zip line activities and as a result, I fully accept and assume all the risks and dangers involved in said activity and accept responsibility for all injuries, losses, costs and damages I incur as a result of the participation in the activity and I release and discharge and covenant not to sue the Mammoth Cave Adventures, LLC, for any liability, claims, damages, demands or losses which I has [sic] been caused by or alleged to have been caused by the actions or negligence of Mammoth Cave Adventures, LLC, and I will indemnify and save and hold it harmless from any litigation expenses, attorney fees, liabilities, damages or costs, it may incur as a result of any claim of mine to the fullness [sic] extent permitted by law.

3. I understand that I have released Mammoth Cave Adventures, LLC, and I have signed this document freely and without any inducement or assurance of any kind.

The circuit court applied the following four factors in determining the agreement was enforceable:

Specifically, a preinjury release will be upheld only if (1) it explicitly expresses an intention to exonerate by using the word “negligence;” or (2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or (3) protection against negligence is the only reasonable construction of the contract language; or (4) the hazard experienced was clearly within the contemplation of the provision. “Thus, an exculpatory clause must clearly set out the negligence for which liability is to be avoided.”

Id. at 47 (citations omitted).

Bowling subsequently filed a motion to alter, amend, or vacate, which the circuit court denied. This appeal followed.

“Appellate review of a summary judgment involves only legal questions and a determination of whether a disputed material issue of fact exists. So we operate under a de novo standard of review with no need to defer to the trial court’s decision.” Shelton v. Kentucky Easter Seals Soc’y, Inc., 413 S.W.3d 901, 905 (Ky. 2013) (citations omitted).

On appeal, Bowling does not contest the circuit court’s determination that the release of liability was enforceable under Hargis. Instead, he argues: (1) an employee of MCA negligently misrepresented that he could zip line despite being over the weight limit, (2) MCA was negligent in not lighting the course or landing area, and (3) the doctrine of equitable estoppel applies.

First, we address Bowling’s negligence arguments. By signing the release of liability, Bowling surrendered his “right to prosecute a cause of action” against MCA. Waddle v. Galen of Kentucky, Inc., 131 S.W.3d 361, 364 (Ky. App. 2004) (citation omitted). Although exculpatory agreements “are disfavored and are strictly construed against the parties relying upon them,” Bowling fails to assert why the agreement at issue is unenforceable. Hargis, 168 S.W.3d at 47 (citations omitted). He does not contest the circuit court’s thorough analysis under Hargis and does not raise a public policy argument under Miller as Next Friend of E.M. v. House of Boom Kentucky, LLC, 575 S.W.3d 656, 660 (Ky. 2019). Instead, Bowling asks this Court to consider whether MCA acted negligently. Bowling signed an exculpatory agreement agreeing not to sue MCA for any damages caused by its alleged negligence, which the circuit court found enforceable. Bowling has no factual basis for his claim against MCA as a matter of law because he signed an enforceable exculpatory agreement. As such, because this agreement cut off Bowling’s right to sue for the injuries he sustained, his allegation that MCA acted negligently does not amount to a genuine issue of material fact to survive summary judgment.

Furthermore, we decline to address Bowling’s equitable estoppel argument. Not only is it conclusory, he also failed to raise the argument before the circuit court. “It is axiomatic that a party may not raise an issue for the first time on appeal.” Sunrise Children’s Services, Inc. v. Kentucky Unemployment Insurance Commission, 515 S.W.3d 186, 192 (Ky. App. 2016) (citation omitted). “As this Court has stated on numerous occasions, ‘appellants will not be permitted to feed one can of worms to the trial judge and another to the appellate court.'” Elery v. Commonwealth, 368 S.W.3d 78, 97 (Ky. 2012) (quoting Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010)). As this argument is not properly before us and Bowling does not request review for palpable error under Kentucky Rules of Civil Procedure (“CR”) 61.02, we decline to address this argument.

For the foregoing reasons, we affirm the summary judgment of the Barren Circuit Court.

DIXON, JUDGE, CONCURS.

TAYLOR, JUDGE, DISSENTS AND FILES A SEPARATE OPINION.

TAYLOR, JUDGE, DISSENTING. Respectfully, I dissent.

I must disagree with the majority and the trial court that the release form signed by Bowling satisfies all of the factors in Hargis, 168 S.W.3d 36. The release uses only the word “negligence.” The release does specifically and explicitly release MCA from liability for ordinary negligence claims. The language of the release is specific as to its purpose to exonerate MCA from ordinary negligence liability only. The release specifically warns that zip line activity is dangerous, without any detailed explanation or discussion. However, importantly for the claims in this case, there is no language that releases MCA from conduct that would constitute gross negligence under Kentucky law.

Bowling claims that an employee of MCA told him immediately prior to getting on the zip line that there was a weight limit, although it was not disclosed to Bowling before signing the release nor was it set out in the release.

This is a relevant disputed material issue of fact in my opinion. Additionally, Bowling alleges there was no lighting on the landing, which is also a disputed factual issue, which would make an inherently dangerous activity even more dangerous. If true, this would clearly be an enhancement to the danger of the activity that would require, at minimum, disclosure and perhaps a warning. The release makes no reference to the lack of lighting on the landing and its enhancement of the dangerous activity.

A weight limit for participants (and allowing overweight participants to access the zip line) and no lighting in the landing area could be construed as willful or wanton conduct for which a party may not contract away liability through a generic release, without full disclosure in my opinion. This type of release is disfavored under Kentucky law and requires a strict construction of the agreement against MCA that precludes summary judgment in this case. See Hargis, 168 S.W.3d at 47. These material issues of fact as disputed by the parties can only be resolved by a trier of fact and are not appropriately resolved by summary judgment. If the jury determines that MCA’s conduct was grossly negligent, the release would be unenforceable as to this conduct. Of course, under comparative negligence, the jury could also consider Bowling’s conduct in contributing to his injuries.

BRIEF FOR APPELLANT:

Michael L. Harris
Columbia, Kentucky

BRIEF FOR APPELLEE:

David E. Crittenden
Robert D. Bobrow
Louisville, Kentucky

@2023 Summit Magic Publishing, LLC SummitMagic@gmail.com

G-YQ06K3L262

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

Posted: May 2, 2022 | Author: Recreation Law | Filed under: Iowa, Release (pre-injury contract not to sue), Zip Line | Tags: Iowa, Iowa Law, Mt. Crescent Ski Area, Negligence, Safehold Special Risk, zip line, Zipline | Leave a comment

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

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

State: Iowa, Supreme Court of Iowa

Plaintiff: Thomas Lukken

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

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

Defendant Defenses: Release

Holding: Granted to specific defendants and reversed as to others

Year: 2021

Summary

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

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

Facts

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

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

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

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

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

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

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

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

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

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

To prove his claim the plaintiff argued:

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

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

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

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

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

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

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

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

Under Iowa law, releases are valid.

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

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

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

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

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

So Now What?

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

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

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

What do you think? Leave a comment.

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

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

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

By Recreation Law Rec-law@recreation-law.com

James H. Moss

@2023 Summit Magic Publishing, LLC SummitMagic@gmail.com

G-YQ06K3L262

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

Posted: May 2, 2022 | Author: Recreation Law | Filed under: Iowa, Release (pre-injury contract not to sue), Zip Line | Tags: Challenge Quest, Mt. Crescent Ski Area, Negligence, Release, Safehold Special Risk, zip line, Zipline | Leave a comment

962 N.W.2d 71

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

No. 20-0343

Supreme Court of Iowa.

Submitted March 24, 2021
Filed June 30, 2021

Matthew A. Lathrop (argued) of Law Office of Mathew A. Lathrop, Omaha, Nebraska, and Robert M. Livingston of Stuart Tinley Law Firm, LLP, Council Bluffs, for appellant.

Thomas Henderson (argued) and Peter J. Chalik of Whitfield & Eddy, P.L.C., Des Moines, for Mt. Crescent appellees.

Joshua S. Weiner (argued) and Robert M. Slovek of Kutak Rock LLP, Omaha, Nebraska, for appellee Challenge Quest, LLC.

McDermott, J., delivered the opinion of the court, in which Christensen, C.J., and Waterman, Mansfield, McDonald, and Oxley, JJ., joined. Appel, J., filed an opinion concurring specially.

McDERMOTT, Justice.

Before riding on the zip line, Lukken signed a release and waiver-of-liability agreement in favor of Mt. Crescent. It stated in relevant part:

I am aware and fully understand that these activities are very dangerous. They involve the risk of damage, serious injury and death, both to myself and to others.

I understand that there are many potential causes for property damage, serious injury and death at Mt Crescent Ski Area including the negligence of Mt Crescent Ski Area, its owners, agents, employees, volunteer staff, rescue personnel, and equipment as well as my own negligence and the negligence of others.

In consideration of being permitted to participate in the activities offered at Mt Crescent Ski Area I hereby agree to release, waive, discharge, and covenant not to sue Mt Crescent Ski Area, its owners, agents, employees, volunteer staff, or rescue personnel as well as any equipment manufacturers and distributors involved with the Mt Crescent Ski Area facilities from any and all liability from any and all loss or damage I may have and any claims or demands I may have on account of injury to my person and property or the person and property of others, including death, arising out of or related to the activities offered at Mt Crescent Ski Area whether caused by the negligence of Mt Crescent Ski Area, its owners, agents, employees, volunteer staff, rescue personnel, equipment manufacturers, or distributors or otherwise.

….

In consideration of being permitted to participate in the activities offered at Mt Crescent Ski Area, I agree that this Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement extends to any and all acts of negligence by Mt Crescent Ski Area, its owners, agents, employees, volunteer staff, rescue personnel, and equipment manufacturers, and distributors, including negligent rescue operations and is intended to be as broad and inclusive as permitted by Iowa law and that if any portion is held invalid, it is agreed that the balance shall continue in full legal force and effect.

He filed suit against Mt. Crescent (and related individuals and entities alleged to own it) and Challenge Quest (and related entities alleged to have participated in the zip line’s design and construction), pleading causes of action for negligence and strict liability, and requesting punitive damages.

The district court also granted summary judgment in favor of Mt. Crescent, holding the waiver dispositive of the claims. The district court reasoned that Iowa courts consistently uphold exculpatory agreements and that the waiver at issue contained language sufficiently “clear and unequivocal” to demonstrate that Lukken understood he was waiving future claims of negligence. The court held that the express language of waiving “any and all negligence” waived all of Lukken’s negligence claims, including his claim for gross negligence. The district court declined to hold the waiver unenforceable based on public-policy grounds and held that the waiver wasn’t preempted by statute.

Lukken appeals each of the district court’s summary judgment rulings.

II.

We turn first to Lukken’s claims against Challenge Quest. Lukken pleaded claims against Challenge Quest under theories of both negligence and strict liability. Yet his summary judgment and appellate briefing contain no separate legal arguments distinguishing the two theories. He cites no products liability law despite the fact that his petition alleges claims for strict liability based on design defects in the zip line. He instead focuses solely on traditional negligence principles. We will thus analyze Challenge Quest’s liability through the lens of a negligence claim.

To maintain a claim for negligence, Lukken must prove that Challenge Quest owed a duty to protect him from the harm he suffered. See
Thompson v. Kaczinski , 774 N.W.2d 829, 834 (Iowa 2009). Lukken contends that Challenge Quest owed a bevy of duties to Mt. Crescent, including a duty (1) to design and construct a zip line that complied with industry standards, (2) to provide Mt. Crescent appropriate instruction on how to operate the zip line, (3) to address Mt. Crescent’s safety concerns about the zip line, (4) to ensure that Mt. Crescent had procedures in place to train new employees, and (5) to address safety issues with Mt. Crescent arising in future safety inspections. Lukken argues that Challenge Quest owes each of these duties to Mt. Crescent and, based on the risk of physical harm to Mt. Crescent’s zip line riders, these duties extend to Lukken as well.

Whether a defendant owes a duty of care under particular circumstances is a question of law for the court. Hoyt v. Gutterz Bowl & Lounge L.L.C. , 829 N.W.2d 772, 775 (Iowa 2013). The district court in granting summary judgment held that Challenge Quest owed Lukken no duty of care for the injury he sustained. We review the district court’s holding for correction of legal error. Lewis v. Howard L. Allen Invs., Inc. , 956 N.W.2d 489, 490 (Iowa 2021).

The central issue here is the scope of Challenge Quest’s duty in regard to the braking system after the braking system had been replaced without Challenge Quest’s involvement. We have reiterated that, under the Restatement (Third) of Torts, control remains an important consideration in whether a duty exists and liability normally follows control. See
McCormick v. Nikkel & Assocs., Inc. , 819 N.W.2d 368, 371–73 (Iowa 2012). In McCormick v. Nikkel & Associates, Inc. , we held as a matter of law that a subcontractor owed no duty to assure the safety of a jobsite once it locked up the switchgear and transferred control back to the contractor. Id. at 373–75. So too here, once Mt. Crescent decided to replace the braking system, any machine- or human-related flaws in that system ceased to be Challenge Quest’s responsibility. Challenge Quest’s braking system didn’t fail; it no longer existed. Challenge Quest likewise had no connection to the actions of Mt. Crescent’s employee who failed to reset the brake in time to stop Lukken. The employee didn’t work for Mt. Crescent when Challenge Quest conducted its four-day technical training for Mt. Crescent employees prior to Mt. Crescent opening the course to the public. Challenge Quest had no role in the employee’s hiring, supervision, or instruction.

Lukken argues more specifically that Challenge Quest should have incorporated an emergency brake as part of its original braking system. But this argument fails, too, based on the replacement of the braking system and Challenge Quest’s lack of any control at that point. When Mt. Crescent decided to install a different braking system, it became the responsibility of Mt. Crescent and Sky Line to assure the safety of that system. Challenge Quest’s original braking system (without an emergency brake) apparently resulted in some minor mishaps until it was replaced in July 2016. Sky Line’s replacement braking system (without an emergency brake) had the potential to result in a more serious accident in the event of an operator’s error. It would be unfair to make Challenge Quest legally responsible for this replacement system. See
Huck v. Wyeth, Inc. , 850 N.W.2d 353, 381 (Iowa 2014) (reaffirming the “long-standing” rule that requires the plaintiff “to prove the defendant manufactured or supplied the product that caused her injury, and [declining] to extend the duty of product manufacturers to those injured by use of a competitor’s product”). In this case, to the extent any product failed, it wasn’t Challenge Quest’s product. Cf. Weyerhaeuser Co. v. Thermogas Co. , 620 N.W.2d 819, 825 (Iowa 2000) (en banc) (“[T]o establish assembler liability, the plaintiff must show that the assembler actually sold or otherwise placed the defective product on the market. Baughman [ v.
Gen. Motors Corp. , 780 F.2d 1131, 1132–33 (4th Cir. 1986)] (refusing to hold truck manufacturer liable for defective wheel rim that was placed on vehicle after sale and that manufacturer did not supply); Exxon [ Shipping Co. v. Pac. Res., Inc. , 789 F. Supp. 1521, 1522–23, 1527 (D. Haw. 1991)] (refusing to hold designer of mooring terminal liable for defective replacement chain).”) That Lukken claims the new, different product was similarly defective does not provide him a basis to pursue Challenge Quest for a defect in a product that Lukken never used and that didn’t injure him. See Restatement (Third) of Torts: Prod. Liab. § 15 cmt. b , illus. 2, at 232 (Am. L. Inst. 1998).

Lukken also contends that Challenge Quest’s zip line design defects caused riders to reach speeds in excess of ACCT’s standards, which left the braking system unable to safely stop him. But the record demonstrates that Sky Line independently examined the existing zip line, recommended the zipSTOP braking system, and (at Mt. Crescent’s direction) installed it. As the district court correctly found, the actions of Sky Line and Mt. Crescent cut off Challenge Quest’s liability. See
McCormick , 819 N.W.2d at 374 (noting that the party in control “is best positioned to take precautions to identify risks and take measures to improve safety”). In this case, when Mt. Crescent scrapped Challenged Quest’s original braking system and installed Sky Line’s zipSTOP braking system, Challenge Quest was relieved of any liability associated with insufficient stopping capacity or other defects in its original braking system.

Lukken further claims that Challenge Quest breached a duty to provide Mt. Crescent information, training, and policies to ensure Mt. Crescent’s safe ongoing operation of the zip line. Lukken asserts that had Challenge Quest instructed Mt. Crescent on safety procedures that included, for instance, operational redundancies or checklists, Mt. Crescent might have ensured the braking system was properly deployed and cross-checked before Lukken ever started down the zip line. But this claimed duty on Challenge Quest fails for reasons inherent in the different braking systems that were installed. The original braking system required an employee’s active, manual stopping efforts to ensure riders stopped at the landing platform. Yet the zipSTOP system stops riders through an automated brake that requires no similar manual exertion. Challenge Quest had no reason to provide the type of instruction or policies that would have caused Mt. Crescent’s employees to remember to redeploy an automated braking system that, at the time, didn’t exist on this zip line. Challenge Quest trained Mt. Crescent’s employees on how to stop a rider using the original manual stopping method; we see no basis to impose on Challenge Quest some requirement to provide instruction or procedures on operating a distinct braking system that hadn’t been installed. On these facts, Challenge Quest had no duty to provide training or policies on the safe operation of a braking system that relied on a completely different stopping mechanism and that required completely different actions by Mt. Crescent’s employees.

We thus affirm the district court’s grant of summary judgment in favor of Challenge Quest.

III.

We turn to the dismissal of Lukken’s negligence claim against Mt. Crescent.

The district court found that the waiver Lukken signed before riding the zip line was “broad in its inclusiveness and contained clear and unequivocal language sufficient to notify Plaintiff that by signing the document, he would be waiving all future claims for negligence against Defendants.” Lukken argues that even if the waiver’s language could be considered “clear and unequivocal,” Mt. Crescent’s negligence went beyond ordinary negligence and into the realm of gross negligence. He argues that the gross negligence alleged in this case involves conduct more culpable than the inadvertence or inattention of ordinary negligence and that, as a matter of public policy, Iowa courts should not enforce clauses that exculpate parties from grossly negligent conduct.

Exculpatory clauses, sometimes referred to as “hold harmless” clauses, relieve parties from responsibility for the consequences of their actions. “[W]e have repeatedly held that contracts exempting a party from its own negligence are enforceable, and are not contrary to public policy.” Huber v. Hovey , 501 N.W.2d 53, 55 (Iowa 1993). An enforceable waiver must contain “clear and unequivocal language” notifying a casual reader that by signing, she agrees to waive all claims for future acts or omissions of negligence. Sweeney v. City of Bettendorf , 762 N.W.2d 873, 878–79 (Iowa 2009). An intention to absolve a party from all claims of negligence must be clearly and unequivocally expressed in the waiver. Id. at 878–79 ; see also
Baker v. Stewarts’ Inc. , 433 N.W.2d 706, 709 (Iowa 1988) (stating that an intent “to absolve the establishment from liability based upon the acts or omissions of its professional staff … must be clearly and unequivocally expressed”).

Exculpatory clauses reside at the intersection of tort law and contract law. Under tort law, courts generally permit a party to whom a duty of care is owed to pursue damages against another for acts that breach that duty if those acts were the factual cause of the harm and within the other party’s scope of liability. See
Thompson , 774 N.W.2d at 837. But under contract law, “parties of full age and competent understanding must have the greatest freedom of contracting, and contracts, when entered into freely and voluntarily, must be upheld and enforced by the courts.” 5 Richard A. Lord, Williston on Contracts § 12:3, at 862–870 (4th ed. 2009). Not enforcing exculpatory clauses advances the interests of tort law (deterring unsafe conduct and compensating accident victims) but abridges parties’ power to contract; enforcing exculpatory clauses advances the parties’ power to contract but abridges tort remedies.

Courts attempt to strike a balance by not enforcing exculpatory contracts that contravene public policy. See
Wunschel L. Firm, P.C. v. Clabaugh , 291 N.W.2d 331, 335 (Iowa 1980). Admittedly, courts have struggled to articulate a predictable framework for parties to anticipate which agreements will contravene public policy in a future given case and which will not. We have stated in general terms that courts should not enforce a contract that “tends to be injurious to the public or contrary to the public good.” Walker v. Am. Fam. Mut. Ins. , 340 N.W.2d 599, 601 (Iowa 1983). Yet declaring contracts unenforceable as violating public policy “is a delicate power which ‘should be exercised only in cases free from doubt.’ ” Wunschel L. Firm, P.C. , 291 N.W.2d at 335 (quoting Richmond v. Dubuque & Sioux City R.R. , 26 Iowa 191, 202 (1868) ). We will not “curtail the liberty to contract by enabling parties to escape their valid contractual obligation on the ground of public policy unless the preservation of the general public welfare imperatively so demands.” Walker , 340 N.W.2d at 601 (quoting Tschirgi v. Merchs. Nat’l Bank of Cedar Rapids , 253 Iowa 682, 690, 113 N.W.2d 226, 231 (1962) ); see also
Robinson v. Allied Prop. & Cas. Ins. , 816 N.W.2d 398, 408 (Iowa 2012) (” ‘[T]here is a certain danger in too freely invalidating private contracts on the basis of public policy.’ … To do so ‘is to mount “a very unruly horse, and when you once get astride it, you never know where it will carry you.” ‘ ” (alteration in original) (first quoting Skyline Harvestore Sys., Inc. v. Centennial Ins. , 331 N.W.2d 106, 109 (Iowa 1983) ) (second quoting Grinnell Mut. Reins. v. Jungling , 654 N.W.2d 530, 540 (Iowa 2002) )). And yet, in Galloway v. State , we held that “public policy precludes enforcement of a parent’s preinjury waiver of her child’s cause of action for [negligently inflicted] injuries” on an educational field trip. 790 N.W.2d 252, 253, 256, 258 (Iowa 2010). But see
Kelly v. United States , 809 F. Supp. 2d 429, 437 (E.D.N.C. 2011) (anticipating that the North Carolina Supreme Court would enforce the parent’s liability waiver for fifteen-year-old’s high school enrichment program and describing Galloway as an “outlier”).

Lukken argues that we should not enforce an exculpatory clause against him that purports to release claims of “any and all acts of negligence” as contrary to public policy to the extent it includes claims of gross negligence. While we have never provided an all-encompassing framework for analyzing public-policy exceptions, in Baker v. Stewarts’ Inc. , we recited several factors that might be considered to determine whether a contract implicated a public interest. See 433 N.W.2d at 708. The district court in this case found that one of these factors—whether “the party seeking exculpation performs a service of great importance to the public which is of practical necessity for at least some members of the public,” id. —cut sharply against a finding that zip lining implicated a sufficient public interest to warrant interference with the parties’ contract. The district court noted that the Iowa Court of Appeals in an unpublished opinion determined that snow sledding was a “purely recreational activity” and thus not a service of great importance or necessity to the public to justify applying the public-policy exception. Lathrop v. Century, Inc. , No. 01-1058, 2002 WL 31425215, at *3 (Iowa Ct. App. Oct. 30, 2002).

But this focus somewhat misconstrues Lukken’s argument. Lukken’s focus isn’t on whether Mt. Crescent may enforce an exculpatory clause for voluntary recreational activities (under Iowa law, it may), but whether Mt. Crescent may enforce an exculpatory clause that negates claims for more culpable conduct. Lukken argues that the district court’s ruling overlooks the differences between “ordinary” negligence and “gross” negligence, and thus overlooks the public-policy implications associated with the differences in the culpability of the conduct that he alleges.

In his summary judgment and appeal briefing, Lukken contends that gross negligence includes “wanton” conduct based on its description in Iowa Code section 85.20. That statute describes gross negligence as conduct “amounting to such lack of care as to amount to wanton neglect.” Iowa Code § 85.20(2) (2018); see also
Thompson v. Bohlken , 312 N.W.2d 501, 504 (Iowa 1981) (en banc). Lukken recites cases that define gross negligence similar to wanton conduct (and wanton conduct’s close sibling, reckless conduct) as a basis for refusing to enforce contracts that include exculpatory clauses for gross negligence. Yet Lukken’s argument—that his gross negligence claim includes wanton or reckless conduct—glosses over a distinction in our cases between our common law conception of gross negligence and different statutory renderings of gross negligence.

“Gross negligence” is not a distinct cause of action under our common law, but instead is a measure of conduct in a cause of action for negligence. Unertl v. Bezanson , 414 N.W.2d 321, 326–27 (Iowa 1987) (en banc). “In this state, as is well known, the actionable character of negligence is not dependent upon its ‘degree,’ and the ancient differentiation into ‘gross,’ ‘ordinary,’ and ‘slight’ has come to mean little more than a matter of comparative emphasis in the discussion of testimony.” Denny v. Chi., R.I. & P. Ry. , 150 Iowa 460, 464–65, 130 N.W. 363, 364 (1911). Under our common law “there are no degrees of care or of negligence in Iowa,” Tisserat v. Peters , 251 Iowa 250, 252, 99 N.W.2d 924, 925–26 (1959), and we thus do not recognize a tort cause of action based on “gross” negligence as distinct from “ordinary” negligence. Hendricks v. Broderick , 284 N.W.2d 209, 214 (Iowa 1979).

Yet analysis of “gross negligence” appears frequently in our cases interpreting statutes that employ the term. See, e.g. , Thompson , 312 N.W.2d at 504 (interpreting the meaning of “gross negligence” in section 85.20 ); Sechler v. State , 340 N.W.2d 759, 761 (Iowa 1983) (en banc) (interpreting the meaning of “gross negligence” in section 306.41). In Thompson v. Bohlken , for instance, we analyzed the term “gross negligence” in section 85.20, which the statute describes as conduct “amounting to such lack of care as to amount to wanton neglect.” 312 N.W.2d at 504 (quoting Iowa Code § 85.20 (1977)). We determined that the term “gross negligence” under this statute included elements requiring proof of the defendant’s knowledge of the danger, the defendant’s knowledge that injury is probable (not merely possible) to result from the danger, and the defendant’s conscious failure to avoid the danger. Id. at 505. These elements generally track the definition of recklessness in the Restatement (Second) of Torts. See
Leonard ex rel. Meyer v. Behrens , 601 N.W.2d 76, 80 (Iowa 1999) (per curiam) (relying on the definition of “recklessness” in the Restatement (Second) of Torts § 500, at 587 (Am. L. Inst. 1965) ).

But we have warned that conceptions of “gross negligence” deriving from statutory uses of that term are not to be applied beyond those statutes. In Sechler v. State , a case tried before Iowa’s adoption of comparative negligence, we defined gross negligence for purposes of Iowa Code section 306.41 (1983) as not to include wanton neglect. 340 N.W.2d at 761. We later stated that, “[f]ar from creating a new basis of liability, the ‘gross negligence’ discussed in Thompson was a restriction, not an expansion, of the scope of negligence suits.” Unertl , 414 N.W.2d at 327. The notion of gross negligence as including “wanton” conduct under section 85.20 thus is “a concept limited by its terms to workers’ compensation cases.” Id. at 326–27.

As a result, Lukken’s argument that common law gross negligence incorporates wanton or reckless conduct based on the description in section 85.20 doesn’t square with our cases. The district court, reciting our cases stating that gross negligence is simply another degree of ordinary negligence, determined that the exculpatory clause releasing “any and all negligence” likewise released Lukken’s gross negligence claims, and thus dismissed Lukken’s claims against Mt. Crescent.

Lukken’s confusion about how reckless or wanton conduct falls within the scope of gross negligence doesn’t end the analysis in this case, however, because Lukken in his petition alleged that Mt. Crescent engaged in not only negligent conduct but also willful, wanton, and reckless conduct. We have long recognized separate grounds for tort liability based on these more culpable types of conduct. See, e.g. , Leonard ex rel. Meyer , 601 N.W.2d at 80 (recognizing a cause of action in tort for reckless disregard for safety); see also
Hendricks , 284 N.W.2d at 214 (analyzing alleged reckless conduct separate from negligence).

Both the Restatements of Contracts and Torts disfavor exculpatory clauses that attempt to limit liability for harm caused recklessly or intentionally. Restatement (Second) of Contracts § 195(1), at 65 (Am. L. Inst. 1981) (“A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.”); Restatement (Third) of Torts: Apportionment of Liab. § 2 cmt. d , at 20 (Am. L. Inst. 2000) (stating that generally “contracts absolving a party from intentional or reckless conduct are disfavored”).

The Restatement (Second) of Torts notes that “[i]n the construction of statutes which specifically refer to gross negligence, that phrase is sometimes construed as equivalent to reckless disregard” of the interest of others. Restatement (Second) of Torts § 282 cmt. e , special n. 5, at 11. And so it has been in Iowa. Wanton conduct “involves the combination of attitudes: a realization of imminent danger, coupled with a reckless disregard or lack of concern for the probable consequences of the act.” Thompson , 312 N.W.2d at 505. While willfulness is “characterized by intent to injure,” wantonness is characterized by “indifference as to whether the act will injure another.” Id. (citing 57 Am. Jur. 2d Negligence § 102, at 452–53 (1971) ).

Many courts have considered in the same classification the concepts of wantonness, recklessness, and willfulness in declaring liability waivers unenforceable to the extent they seek to release such conduct. See, e.g. , Wolfgang v. Mid-Am. Motorsports, Inc. , 898 F. Supp. 783, 788 (D. Kan. 1995) (recognizing that under Kansas common law “any attempt to limit liability for gross negligence or willful and wanton conduct is unenforceable”); Moore v. Waller , 930 A.2d 176, 179 (D.C. 2007) (recognizing that courts generally don’t enforce exculpatory clauses limiting a party’s liability for “gross negligence, recklessness or intentional torts” (quoting Carleton v. Winter , 901 A.2d 174, 181 (D.C. 2006) )); Jones v. Dressel , 623 P.2d 370, 376 (Colo. 1981) (en banc) (holding that “in no event will such an [exculpatory] agreement provide a shield against a claim for willful and wanton negligence”); Brady v. Glosson , 87 Ga.App. 476, 74 S.E.2d 253, 255–56 (1953) (holding an exculpatory clause unenforceable to relieve liability for willful or wanton conduct); Wolf v. Ford , 335 Md. 525, 644 A.2d 522, 525 (1994) (stating that “a party will not be permitted to excuse its liability for … the more extreme forms of negligence, i.e., reckless, wanton, or gross”); Anderson v. McOskar Enters., Inc. , 712 N.W.2d 796, 801 (Minn. Ct. App. 2006) (stating that “any ‘term’ in a contract which attempts to exempt a party from liability for gross negligence or wanton conduct is unenforceable” (quoting Wolfgang , 898 F. Supp. at 788 )); New Light Co. v. Wells Fargo Alarm Servs. , 247 Neb. 57, 525 N.W.2d 25, 30 (1994) (holding that public policy prevents parties from limiting damages for “gross negligence or willful and wanton misconduct”). We conclude that, consistent with the great weight of authority, exculpatory clauses purporting to negate liability for acts that are wantonly or recklessly committed generally violate public policy.

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

We reverse the district court’s summary judgment ruling as to Mt. Crescent and, in light of this determination, need not address the plaintiff’s other arguments concerning the claims against Mt. Crescent in this appeal. We remand for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All justices concur except Appel, J., who concurs specially.

APPEL, Justice (concurring specially).

I cannot join the majority’s overbroad duty analysis suggesting that because of lack of control, duty invariably evaporates. If the zip line was negligently constructed by Challenge Quest and a patron was injured as a result of the negligent design, a potential claim by the injured patron would not be defeated by a lack of duty. As noted by comment g of the Restatement (Third), section 49, a contractor no longer in possession “is subject to a duty of reasonable care as provided in § 7 for any risk created by the contractor in the course of its work.” 2 Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 49 cmt. g , at 235 (Am. L. Inst. 2012). See generally
McCormick v. Nikkel & Assocs., Inc. , 819 N.W.2d 368, 377–83 (Iowa 2012) (Hecht, J., concurring in part and dissenting in part) (describing the duty of care for contractors after relinquishing possession of land). The analysis after a contractor is no longer in control of the premises concerns the fact-based questions of whether the risk was within the scope of liability and causation, not the legal question of duty. See generally
Morris v. Legends Fieldhouse Bar and Grill, LLC, 958 N.W.2d 817, 828–42 (Iowa 2021) (Appel, J., dissenting) (describing the proper analysis in most negligence cases rests with the fact questions of breach of duty and causation).

Generally, of course, these fact questions are not amenable to summary judgment. See
Thompson v. Kaczinski , 774 N.W.2d 829, 832 (Iowa 2009). But here, causation is not present with respect to the design of the braking system itself as the allegedly defective Challenge Quest system was entirely replaced by another independent vendor. To the extent there was an equipment defect in the braking system (i.e. not having an emergency brake), it was the defect in the new braking system, and not the original braking system, that caused the accident. And, the plaintiff showed no linkage between the unfortunate accident and the nebulous and allegedly insufficient training and safety policies, or the accident and the newly installed braking system (with a fundamentally different design from the original Challenge Quest system). So I concur in the district court’s conclusion that any claim against Challenge Quest fails. But this is an oddball case tightly controlled by its facts that should not be decided based on the legal principles of duty.

I concur in the majority’s holding with respect to the waiver of claims sounding in gross negligence.

@2023 Summit Magic Publishing, LLC SummitMagic@gmail.com

G-YQ06K3L262

Release upheld to stop claims for injuries sustained on a high rope’s course.

Posted: April 25, 2022 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Colorado, Release (pre-injury contract not to sue) | Tags: challenge course, Golden Bell Camp and Conference Center, Golden Bell Retreat, Release, Retreat, Ropes course, Waiver | 5 Comments

Plaintiff’s arguments failed because Colorado is supportive of releases.

Sheldon v. Retreat, 2020 U.S. Dist. LEXIS 69461 (D. Colo. 2020)

State: Colorado, US District Court for the District of Colorado

Plaintiff: Jodi Sheldon

Defendant: Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene, d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center, Cross Bearing Adventures, LLC, Kent Fielden Mcilhany, an individual, and John Doe Corporations 1-10, Defendants

Plaintiff Claims: Colorado’s Premises Liability Act (“PLA”), §13-21-115, C.R.S. negligence against Cross Bearing Adventures (“CBA”), the company which constructed and inspected the course and trained Golden Bell employees on the safety and facilitation of various aspects of the course, and its owner, Kent McIlhany

Defendant Defenses: Release

Holding: For the Defendant

Year: 2020

Summary

The plaintiff signed a release to go to a Church retreat prior to attending the retreat. At the retreat, she was injured on a ropes or challenge course. She sued the retreat, the church and the builder of the course and lost because of the release she had signed.

Facts

The facts in this case are sparse.

On June 29, 2018, plaintiff Jodi Sheldon was seriously injured while participating in a high ropes course at the Golden Bell Ranch (“Golden Bell”).

Ms. Sheldon sued Golden Bell under Colorado’s Premises Liability Act (“PLA”), §13-21-115, C.R.S. She also brought a claim of negligence against Cross Bearing Adventures (“CBA”), the company which constructed and inspected the course and trained Golden Bell employees on the safety and facilitation of various aspects of the course, and its owner, Kent McIlhany

The defendants claim the plaintiff’s claims are barred by the release she signed.

Ms. Sheldon received the Waiver from her aunt3 after having been given a list of activities offered at Golden Bell and indicating her interest in participating in the high ropes course.

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

The court started its analysis of the case by reviewing case law on releases.

Exculpatory agreements “stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts,” Thus, although such agreements are generally disfavored, and cannot “shield against a claim for willful and wanton conduct, regardless of the circumstances or intent of the parties,” “Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence,”

The court then reviewed the four factors that affect the validity of a release under Colorado law.

If a release meets any of the four factors, then under Colorado law, the release is unenforceable. The first two factors can be ignored because the activities were recreational in nature. Colorado courts have long held that there is no public policy or necessity in recreational cases.

The same applies to the third test, because the services offered were recreational in nature, the third test does not apply.

Nor is there any argument or evidence to establish that the third factor – whether the contract was fairly entered into – is applicable here. Indeed, because recreational activities are not considered either essential services or practically necessary, “a person is not ‘at the mercy’ of a business’s negligence when entering an exculpatory agreement involving recreational activities.”

Consequently, under Colorado law only the fourth test can be used to show a release should be void in a recreational case. This test is a simple legal test, is the release written properly and does it convey to the possible plaintiff the intention of the document.

Thus, whether the Waiver is enforceable turns exclusively on the fourth factor, “whether the intention of the parties is expressed in clear and unambiguous language.” In analyzing this factor, the court focuses on whether the parties’ intent to “extinguish liability . . . was clearly and unambiguously expressed.”

The plaintiff argued the language of the release did not cover the risks of a high rope’s course. However, the court found the language did cover the risks; the language was broad enough in scope to cover the risks and injury the plaintiff incurred.

Ms. Sheldon insists the Waiver is ambiguous as to whether the high ropes course was within the scope of the activities covered. I am not persuaded. Here, the Waiver defined the term “Activities” as “recreational activities . . . including activities that may be hazardous or otherwise involve a risk of physical injury or death to participants.” (Emphasis added.) The use of the term “including” plainly signifies that some – but not all – of the Activities covered by the Waiver will be hazardous or involve a risk of physical injury. Thus, even accepting Ms. Sheldon’s suggestion that a high ropes course is not a hazardous activity, her argument fails.

Colorado is extremely lenient on the language allows to prevent a claim.

Nor does the Waiver’s failure to refer specifically to the high ropes course render it ambiguous with respect to the type of activities covered. Colorado law does not require “an exculpatory agreement describe in detail each specific risk that the signor might encounter.”

The language was interpreted to be broad enough to protect the builder of the course, also.

The plaintiff also argued the waiver lacked consideration because of the lapse in time between when she signed the release and when her injury occurred. The court did not agree.

The Waiver does not fail for lack of consideration. Contrary to Ms. Sheldon’s arguments, the mere lapse of time between her payment to participate in the activity and the date the waiver was delivered to Golden Bell is not fatal to its enforcement. Instead, the pertinent question is whether the release of liability was a contract modification or rather is part of the same transaction and thus enforceable without additional consideration.

Consideration is a benefit flowing from one party to the other. Every contract must have consideration. In 99% of the contracts, consideration is defined as money, an amount. The other side of the contract in consideration for money exchanges or provides services or products. In this case the exchange was a fee, money, paid by the plaintiff in exchange for a service, the ropes course, for the fee paid by the defendant.

The Plaintiff then argued the release should be void because of mutual mistake. That argument failed because the plaintiff could not show where there was any issue that was not clearly covered in the release. If a release is written with clarity and signed, their argument of mutual mistake is nearly impossible to prove.

The doctrine of mutual mistake permits a party to rescind a contract “if all parties labored under the same erroneous conception of the contract’s terms and conditions.”

The mutual mistake argument was then expanded by the plaintiff to say because the state had no licensed the high ropes course, then the release should be void by mutual mistake.

Mutual mistake in a contract means both parties to the contract made the same mistake in the contract unenforceable or such that neither party wants to enforce the contract. Normally in a mutual mistake claim, the court re-writes the contract to meet the terms needed to eliminate the mutual mistake.

The state of Colorado does not license ropes course.

The plaintiff claimed the mutual mistake was the ropes course was not licensed. There was a mistake that because the course was unlicensed, the contract was not correct, there was a mistake.

There could not be a mutual mistake because no term in the contract, the release, required that one party have the rope’s course licensed. Meaning, a mutual mistake is not a legal theory that brings in outside issues into the analysis of the contract. A mutual mistake is something that was not understood within the contract.

The plaintiff then argued there was a unilateral mistake that should void the release.

[A] unilateral mistake by one party to a contract can permit reformation if the evidence demonstrates that, at the time the contract was formed, the non-mistaken party was aware of the mistaken party’s mistake.” Thus, one party’s unilateral mistake may permit reformation where “the other engaged in fraud or inequitable conduct.

However, there was nothing in the contract, the release or the evidence that could be identified as one party engaging in fraud or inequitable conduct.

The release was upheld to prevent the claims brought against all three defendants.

So Now What?

Release law is written by poor releases. My releases never go to court because they are written to cover the issues like this. The Socratic method used in law school to learn still applies when practicing law, you learn from failure not success.

Here the release squeaked through, because of the breath of the case law in Colorado supporting releases. In other states, this release would fail.

Have your release written by an attorney who understands release law and understands what you do so you do not become a learning opportunity for the rest of your industry.

The remaining arguments made by the plaintiff were without any merit, and I write about them just as additional caution and to understand what those arguments really mean.

What do you think? Leave a comment.

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

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

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

By Recreation Law Rec-law@recreation-law.com

James H. Moss

@2023 Summit Magic Publishing, LLC SummitMagic@gmail.com

G-YQ06K3L262

Sheldon v. Retreat, 2020 U.S. Dist. LEXIS 69461 (D. Colo. 2020)

Posted: April 25, 2022 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Colorado, Release (pre-injury contract not to sue) | Tags: challenge course, Golden Bell Camp and Conference Center, Golden Bell Retreat, Negligence, Release, Ropes Courses, The Colorado District Church of the Nazarene, Waiver | 1 Comment

Sheldon v. Retreat, 2020 U.S. Dist. LEXIS 69461 (D. Colo. 2020)

JODI SHELDON, Plaintiff,
v.
GOLDEN BELL RETREAT d/b/a THE COLORADO DISTRICT CHURCH OF THE NAZARENE,
d/b/a GOLDEN BELL RANCH and GOLDEN BELL CAMP and CONFERENCE CENTER,
CROSS BEARING ADVENTURES, LLC, KENT FIELDEN MCILHANY, an individual,
and JOHN DOE CORPORATIONS 1-10, Defendants.

Civil Action No. 19-cv-01371-REB-NYW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

April 20, 2020

Judge Robert E. Blackburn

ORDER GRANTING SUMMARY JUDGMENT

Blackburn, J.

The matters before me are (1) the Motion for Summary Judgment on Plaintiff’s Personal Injury Claims Against Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center [#42],1 filed January 21, 2020; and (2) Defendants Cross Bearing Adventures, LLC’s and Kent Fielden McIlhany’s Motion for Summary Judgment [#55], filed March 9, 2020. I grant both motions and dismiss plaintiff’s remaining claims with prejudice as against the named defendants and without prejudice as against the Doe defendants.

I. JURISDICTION

I have jurisdiction over this matter under 28 U.S.C. §1332 (diversity of citizenship).

II. STANDARD OF REVIEW

Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10^th Cir. 1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.

A party who does not have the burden of proof at trial must show the absence of a genuine factual dispute. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10^th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Concrete Works, 36 F.3d at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel. Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10^th Cir.), cert. denied, 120 S.Ct. 53 (1999).

III. ANALYSIS

On June 29, 2018, plaintiff Jodi Sheldon was seriously injured while participating in a high ropes course at the Golden Bell Ranch (“Golden Bell”). Ms. Sheldon sued Golden Bell under Colorado’s Premises Liability Act (“PLA”), §13-21-115, C.R.S. She also brought a claim of negligence against Cross Bearing Adventures (“CBA”), the company which constructed and inspected the course and trained Golden Bell employees on the safety and facilitation of various aspects of the course, and its owner, Kent McIlhany.2

All three defendants claim Ms. Sheldon’s claims are barred by a Waiver, Release and Indemnification Agreement (the “Waiver”) which she signed on May 18, 2018, prior to participating in the high ropes course. The Waiver provided, in relevant part,

I wish to participate in recreational activities to be made available to participants at Golden Bell Camp including activities that may be hazardous or otherwise involve a risk of physical injury or death to the participants (the”Activities”).

I expressly assume any and all risks of injury or death arising from or relating to the Activities including horseback riding, agricultural recreation and waive and release any and all actions, claims, suits or demands of any kind or nature whatsoever against Golden Bell Camp, its corporate affiliates, contractors, vendors, officer, agents, sponsors, volunteers or representatives of any kind (collectively “Releases”) arising from or relating in any way to my voluntary participation in these activities. I understand that this Waiver, Release and Indemnification agreement means, among other things, that if I am injured or die as a result of my participation in these activities, I and/or my family or heirs cannot under any circumstances sue Releases or any of them for damages relating to or caused by my injuries or death.

. . .

I agree to indemnify Releases or any of them and their subrogees, if any, in the event of any loss, damage or claim arising from or relating in any way to my participation in any of the Activities.

. . . .

I have read this Waiver, Release and Indemnification Agreement, have asked and received answers to any questions I had concerning its meaning and execute it freely, without duress, and in full complete understanding of its legal effect, and of the fact that it may affect my legal rights.

(CBA Motion App., Exh. C, Attachment 2.) Ms. Sheldon received the Waiver from her aunt3 after having been given a list of activities offered at Golden Bell and indicating her interest in participating in the high ropes course. (Id., Exh. C, Attachment 1 at 25-26.)

To begin, Ms. Sheldon does not oppose Mr. McIlhany’s motion to dismiss her claims against him personally. The uncontested evidence supports Mr. McIlhany’s assertion that all actions taken by him of which Ms. Sheldon complains were done in his capacity as a member, manager, and operator of CBA and that he never performed any services for Golden Bell in his individual capacity. Ms. Sheldon’s claims against Mr. McIlhany therefore will be dismissed with prejudice.

As for Ms. Sheldon’s claims against Golden Bell and CBA, they are precluded by the Waiver.4 Because this case implicates the court’s diversity jurisdiction, I apply Colorado law. Wade v. EMASCO Insurance Co., 483 F.3d 657, 665-66 (10^th Cir. 2007). Exculpatory agreements “stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts,” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). Thus, although such agreements are generally disfavored, see B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998), and cannot “shield against a claim for willful and wanton conduct, regardless of the circumstances or intent of the parties,” Boles v. Sun Ergoline, Inc., 223 P.3d 724, 726 (Colo. 2010), “Colorado common law does not categorically prohibit the enforcement of contracts seeking to release claims of negligence,” Espinoza v. Arkansas Valley Adventures, LLC, 809 F.3d 1150, 1152 (10^th Cir. 2016).

Colorado courts have identified four factors which inform the decision whether to enforce an exculpatory agreement: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Brigance v. Vail Summit Resorts, Inc., 883 F.3d 1243, 1250 (10t Cir. 2018) (quoting Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981)) (internal quotation marks omitted).

The first two Jones factors focus on public policy questions – asking whether the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity. Meanwhile, the latter two factors focus on more party – and contract-specific questions – asking whether the release was fairly obtained and clearly and unambiguously expressed.

Patterson v. Powder Monarch, LLC, 926 F.3d 633, 639 (10^th Cir. 2019) (internal citations and quotation marks omitted). “[I]f an exculpatory agreement satisfies any of the four factors, it must be deemed unenforceable.” Brigance, 883 F.3d at 1250. The determination of this question is a matter of law for the court. Jones, 623 P.2d at 376. See also Johnson v. Gold’s Gym Rockies, LLC, 2019 WL 1112374 at *3 (D. Colo. March 11, 2019).

The first two factors are generally inapplicable to businesses engaged in recreational activities, Patterson, 926 F.3d at 639; Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004), and the parties do not argue otherwise. See also Brigance, 883 F.3d at 1250-51, 1252-53 (citing cases). Nor is there any argument or evidence to establish that the third factor – whether the contract was fairly entered into – is applicable here. Indeed, because recreational activities are not considered either essential services or practically necessary, “a person is not ‘at the mercy’ of a business’s negligence when entering an exculpatory agreement involving recreational activities.” Brigance, 883 F.3d at 1253 (quoting Hamill v. Cheley Colorado Camps, Inc., 262 P.3d 945, 949-50 (Colo. App. 2011)).

Thus, whether the Waiver is enforceable turns exclusively on the fourth factor, “whether the intention of the parties is expressed in clear and unambiguous language.” Jones, 623 P.2d at 376. In analyzing this factor, the court focuses on whether the parties’ intent to “extinguish liability . . . was clearly and unambiguously expressed.” Heil Valley Ranch, 784 P.2d at 785.

To determine whether the intent of the parties is clearly and unambiguously expressed, [Colorado courts] have previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions. [They] have even taken into account an injured party’s subsequent acknowledgment that he understood the meaning of the provision.

Chadwick, 100 P.3d at 467 (internal citations omitted).

Ms. Sheldon insists the Waiver is ambiguous as to whether the high ropes course was within the scope of the activities covered. I am not persuaded. Here, the Waiver defined the term “Activities” as “recreational activities . . . including activities that may be hazardous or otherwise involve a risk of physical injury or death to participants.” (Emphasis added.) The use of the term “including” plainly signifies that some – but not all – of the Activities covered by the Waiver will be hazardous or involve a risk of physical injury. Thus, even accepting Ms. Sheldon’s suggestion that a high ropes course is not a hazardous activity,⁵ her argument fails.

Nor does the Waiver’s failure to refer specifically to the high ropes course render it ambiguous with respect to the type of activities covered.⁶ Colorado law does not require “an exculpatory agreement describe in detail each specific risk that the signor might encounter.” Squires v. Breckenridge Outdoor Education Center, 715 F.3d 867, 873 (10^th Cir. 2013). Read in context, and considering not only its structure and language but also its purpose, the Waiver clearly and unambiguously applies to activities such as the high ropes course. See Patterson, 926 F.3d at 642. In this regard, Ms. Sheldon testified that prior to signing up for the high ropes course, she reviewed a list of activities offered by Golden Bell which, in addition to the high ropes course, also included “horseback riding,” an activity specifically referenced in and covered by the Waiver. (CBA Motion App., Exh. C, Attachment 1 at 25.) Moreover, nothing in the record suggests Ms. Sheldon would have been asked to sign a Waiver had she not requested to participate in the high ropes course. Given those circumstances, it “strains logic,” Squires, 715 F.3d at 874, to suggest Ms. Sheldon was confused or misled as to the fact that she was being asked to waive potential claims of negligence associated with the high ropes course. See also Hamill, 262 P.3d at 952 (exculpatory waiver enforceable against parent who signed on behalf of minor child where parent knew activities that were offered at camp; “An agreement with such plain and unambiguous terms will not fail because one of the parties, in hindsight, now claims to have misunderstood the scope of that agreement . . . based on ambiguities not readily apparent within the four corners of the agreement.”).7

Relatedly, the Waiver also clearly bars Ms. Sheldon’s claims against CBA. “A person not a party to an express contract may bring an action on such contract if the parties to the agreement intended to benefit the non-party, provided that the benefit claimed is a direct and not merely an incidental benefit of the contract.” E.B. Roberts Const. Co. v. Concrete Contractors, Inc., 704 P.2d 859, 865 (Colo. 1985). The Waiver specifically protects Golden Bell’s “contractors” and “vendors” from claims “arising from or relating in any way to [Ms. Sheldon’s] voluntary participation in these activities.” (CBA Motion App., Exh. C, Attachment 2.) Clearly, the Waiver was intended to cover parties like CBA in precisely the situation presented by this lawsuit. Moreover, the benefit thus conferred is directly related to its purpose – to absolve such parties from liability for claims of negligence.

Ms. Sheldon’s suggestion that the Wavier is ambiguous as to whether contractors and vendors are covered for all purposes or only when they are on site is meritless. The Waiver plainly is intended to have the broadest possible scope, applying to claims “arising from or relating in any way” to Ms. Sheldon’s participation in the covered activities. Clearly, the parties intended to absolve contractors from claims they were negligent in any way in relation to the subject activities, regardless whether that negligence happened on site at the time of the event. I thus find and conclude that the Waiver clearly and unambiguously bars Ms. Sheldon’s claims against CBA as well.

Ms. Sheldon’s remaining arguments attempting to avoid the effect of the Waiver are likewise unavailing. The Waiver does not fail for lack of consideration. Contrary to Ms. Sheldon’s arguments, the mere lapse of time between her payment to participate in the activity and the date the waiver was delivered to Golden Bell is not fatal to its enforcement. Instead, the pertinent question is whether the release of liability was a contract modification or rather is part of the same transaction and thus enforceable without additional consideration. See Patterson, 926 F.3d at 638 (“[E]ven aside from the question of timing, we are persuaded based on the nature and circumstances of the transaction that the payment and exculpatory agreement here . . . are better viewed as part of the same transaction, rather than as a subsequent contract modification.”) (citing Mincin, 308 F.3d at 1109).8

I am similarly unpersuaded by Ms. Sheldon’s suggestion that the Waiver fails due to either unilateral or mutual mistake. The doctrine of mutual mistake permits a party to rescind a contract “if all parties labored under the same erroneous conception of the contract’s terms and conditions.” In re Estate of Ramstetter, 411 P.3d 1043, 1051 (Colo. App. 2016) (citation and internal quotation marks omitted). Ms. Sheldon has failed to prove by clear and convincing evidence that such is the case here. Cabs, Inc. v. Hartford Insurance Group, 151 Fed. Appx. 604, 610 (10^th Cir. Aug. 31, 2005); Maryland Casualty Co. v. Buckeye Gas Products Co., 797 P.2d 11, 13 (Colo. 1990).

For one thing, it is not clear that Ms. Sheldon’s asserted mistake – that Golden Bell’s high ropes course had been licensed by the state of Colorado – was sufficiently similar to Golden Bell’s mistake – that it did not require such a license – to warrant application of the doctrine at all.⁹ Assuming arguendo that it does, however, the doctrine of mutual mistake permits reformation of the contract “where both parties’ understanding of their agreement is contrary to the terms of a written instrument due to a drafting error[.]” Tatonka Capital Corp. v. Connelly, 390 F.Supp.3d 1289, 1294 (D. Colo. 2019), as modified on reconsideration, 2019 WL 5535226 (D. Colo. Oct. 25, 2019), appeal filed, 2019 WL 5535226 (10^th Cir. Nov. 25, 2019) (No. 19-1450). See also Casey v. Colorado Higher Education Insurance Benefits Alliance Trust, 310 P.3d 196, 207 (Colo. App. 2012) (“A mutual mistake claim requires a showing that both parties were laboring under the same erroneous conception of the contract’s terms and conditions.”) See also Ranch O, LLC v. Colorado Cattlemen’s Agricultural Land Trust, 361 P.3d 1063, 1066-67 (Colo. App. 2015) (doctrine of mutual mistake applies only to mistakes going to a “basic assumption” underlying the contract).10

No term of the contract here addressed whether Golden Bell had, or was required to have, a state-issued license. Thus, any mistake as to that fact “did not create any ambiguity regarding the terms or substance of the [Waiver].” Shoels v. Klebold, 375 F.3d 1054, 1067 (10^th Cir. 2004), cert. denied, 125 S.Ct. 1302 (2005). The Colorado Supreme Court long ago warned that courts “should not sanction, under the guise of reformation, the insertion in [contracts] of a new term or provision which was never even in the minds of the parties, let alone assented to by them.” Segelke v. Kilmer, 360 P.2d 423, 427 (Colo. 1961). “To order reformation under these circumstances is to rewrite, not to reform, the instruments.” Id. Just so here. I thus find the Waiver is not infirm based on mutual mistake.

I likewise reject Ms. Sheldon’s suggestion that she may avoid the waiver’s effect under the doctrine of unilateral mistake. “[A] unilateral mistake by one party to a contract can permit reformation if the evidence demonstrates that, at the time the contract was formed, the non-mistaken party was aware of the mistaken party’s mistake.” Tatonka Capital Corp., 390 F.Supp.3d at 1299. Thus, one party’s unilateral mistake may permit reformation where “the other engaged in fraud or inequitable conduct.” Poly Trucking, Inc. v. Concentra Health Service., Inc., 93 P.3d 561, 563 (Colo. App. 2004). See also RESTATEMENT (SECOND) OF CONTRACTS § 153 (contract may be avoided based on unilateral mistake where “(a) the effect of the mistake is such that enforcement of the contract would be unconscionable, or (b) the other party had reason to know of the mistake or his fault caused the mistake”); Shoels, 375 F.3d at 1068 (quoting Powder Horn Constructors, Inc. v. City of Florence, 754 P.2d 356, 364 (Colo.1988) (“[E]quity will not allow a party to knowingly take advantage of a mistake of another.”)).

None of these circumstances pertains here. It cannot be unconscionable to enforce an exculpatory contract which, like this one, is enforceable under Colorado law. Moreover, there is no hint in the record that Golden Bell knew or had reason to know that Ms. Sheldon did not know its high ropes course was not licensed by the state. Nor is there evidence to suggest Golden Bell was required to make its licensing status known to participants or that it purposefully hid its licensing status from Ms. Sheldon. At best, the evidence suggests Golden Bell’s website made it appear the camp’s activities were open to the general public, which if true would have rendered them subject to inspection and licensing by the state.11 Yet there is neither argument nor evidence that Ms. Sheldon even consulted, much less relied on, Golden Bell’s website in deciding to participate in the high ropes course or sign the Waiver.12 I thus find and conclude that the Waiver is not voidable based on unilateral mistake either.

IV. CONCLUSION

For these reasons, the named defendants are entitled to summary judgment, and Ms. Sheldon’s remaining claims against them will be dismissed with prejudice. Although the caption of this case named a number of unknown John Doe defendant corporations who may have had “ownership and control of the subject obstacle activity (Complaint ¶ 10 at 3 [#1], filed May 13, 2019), with discovery now closed, Ms. Sheldon has not identified any such entities. These defendants therefore also should be dismissed, albeit without prejudice.13
See Culp v. Williams, 2011 WL 1597686 at *3 (D. Colo. April 27, 2011) (because Doe designation is not permitted where “plaintiff’s ignorance of the defendant’s true identity is the result of willful ignorance or lack of reasonable inquiry,” Doe defendants dismissed where case had been pending for more than a year and plaintiff failed to show “good reason as to why [it] ha[d] been unable to obtain the true identity of these unnamed Defendants”).

V. ORDERS

THEREFORE, IT IS ORDERED as follows:

1. That the Motion for Summary Judgment on Plaintiff’s Personal Injury Claims Against Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center [#42], filed January 21, 2020, is granted;

2. That Defendants Cross Bearing Adventures, LLC’s and Kent Fielden McIlhany’s Motion for Summary Judgment [#55], filed March 9, 2020, is granted;

3. That plaintiff’s remaining claims against defendants are dismissed as follows:

a. That the remaining claims of plaintiff against defendants, Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center; Cross Bearing Adventures, LLC; Kent Fielden McIlhany, an individual, are dismissed with prejudice; and

b. That the remaining claims of plaintiff against defendants, John Doe Corporations 1 through 10 are dismissed without prejudice;

4. That judgment shall enter as follows:

a. That judgment with prejudice shall enter on behalf of defendants, Golden Bell Retreat d/b/a The Colorado District Church of the Nazarene d/b/a Golden Bell Ranch and Golden Bell Camp and Conference Center; Cross Bearing Adventures, LLC; and Kent Fielden McIlhany, an individual, and against plaintiff, Jodi Sheldon, as to all remaining claims for relief and causes of action asserted herein;

b. That judgment without prejudice shall enter on behalf of defendants, John Doe Corporations 1 through 10, and against plaintiff, Jodi Sheldon, as to all remaining claims for relief and causes of action asserted herein;

5. That judgment shall enter further in accordance with my Order Adopting Recommendation of United States Magistrate Judge [#35], filed January 8, 2020;

6. That the combined Final Pretrial Conference and Trial Preparation Conference scheduled for June 11, 2020, at 10:00 a.m., is vacated;

7. That the trial scheduled to commence on June 29, 2020, is vacated;

8. That defendants are awarded their costs, to be taxed by the clerk in the time and manner required by Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1; and

9. That this case is closed.

Dated April 20, 2020, at Denver, Colorado.

BY THE COURT:

/s/_________
Robert E. Blackburn
United States District Judge

——–

Footnotes:

1. “[#42]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention throughout this order.

2. Ms. Sheldon’s claims of negligence and fraudulent concealment against Golden Bell were dismissed previously as preempted by the PLA. (See Order Adopting Recommendation of the United States Magistrate Judge [#35], filed January 8, 2020.)

3. Ms. Sheldon, who is a resident of Illinois, attended Golden Bell as part of a large family reunion.

4. I reject Ms. Sheldon’s suggestion that I should defer ruling on this motion until after Golden Bell’s Rule 30(b)(6) deposition is completed. Pursuant to Rule 56(d), to warrant such action, Ms. Sheldon must “show[] by affidavit or declaration that, for specified reasons, [she] cannot present facts essential to justify [her] opposition.” FED. R. CIV. P. 56(d). No such affidavit or declaration has been submitted in support of Ms. Sheldon’s request. The request also violates D.C.COLO.LCivR 7.1(d), which provides that “[a] motion shall not be included in a response or reply to the original motion. A motion shall be filed as a separate document.” I therefore deny this request and consider the summary judgment motions as submitted.

5. Frankly, however, this argument strains credulity. I would be hard pressed to find that it is not inherently risky to be suspended many feet above the ground, regardless of safety measures taken to mitigate the risk. Moreover, Ms. Sheldon’s subjective belief that the ropes course was not inherently dangerous is irrelevant. See Brooks v. Timberline Tours, Inc., 127 F.3d 1273, 1275 n.1 (10t Cir. 1997) (“Plaintiffs’ subjective intent is inadmissible to overcome the parties overt manifestation of intent in the releases because the language in these agreements is clear and unambiguous.”) (citation and internal quotation marks omitted).

6. Ms. Sheldon’s reliance on the district court’s decision in Schlumbrecht-Muniz v. Steamboat Ski & Resort Corp., 132 F.Supp.3d 1310 (D. Colo. 2015), is misplaced. There, although the agreement at issue clearly and unambiguously released the defendant from claims related to the plaintiff’s participation in “the Event” (a ski race), it was not clear that it covered injuries the plaintiff sustained after she finished competing in that event. See id. at 1315. There is no such ambiguity here. Ms. Sheldon was injured while participating in the “activities” which were the subject of the Waiver.

7. I further reject Ms. Sheldon’s argument that her claim of gross negligence against Golden Bell cannot be waived. Assuming such is the case as a matter of law, as a matter of fact, Ms. Sheldon failed to plead such a claim.

8. In reaching its determination, the Mincin court relied on two state court decisions which reached similar conclusions. See Mincin, 308 F.3d at 1109 (citing Beehner v. Cragun Corp., 636 N.W.2d 821, 829 (Minn. Ct. App.2001) (“This court has held that an exculpatory agreement signed after a fee to participate in a recreational activity has been paid is part of the same transaction and is therefore enforceable without additional consideration other than permission to participate in the activity.”), and Hewitt v. Miller, 521 P.2d 244, 248 n.3 (Wash. App. 1974) (concluding that release signed by scuba diving student after payment of fee was an integrated part of the whole transaction and was thus supported by original consideration)).

9. At the time Ms. Sheldon participated in the high ropes course, the course was not licensed by the Colorado Division of Oil and Public Safety (“OPS”) because Golden Bell believed itself subject to a “private event” exception, as its activities were available only to persons staying at the camp or its associated RV park and not open to the general public. However, because Golden Bell charged a separate fee for participation in activities at the camp to groups making use of the RV park, OPS found Golden Bell was not entitled to the benefit of this exclusion. Golden Bell resolved the violation by changing the way in which it offers its activities to guests of the RV park. OPS waived the fine assessed and considered the matter resolved as of August 23, 2019. (See Pl. Resp. App. [#52], Exh. J, Golden Bell Motion App., Exhs. A & B.)

10. Even where the doctrine of mutual mistake is otherwise applicable, however, a party is not entitled to reformation where she was “‘aware, at the time the contract is made, that [she] ha[d] only limited knowledge with respect to the facts to which the mistake relates but treat[ed] [her] limited knowledge as sufficient.'” In re Estate of Ramstetter, 411 P.3d 1043, 1051 (Colo. App. 2016) (quoting RESTATEMENT (SECOND) OF CONTRACTS § 154(b)). Such is arguably the case here as well.

11.
See supra, note 6.

12. These same reasons preclude Ms. Sheldon’s belated assertion that Golden Bell engaged in fraud which would invalidate the Waiver. Otherwise, this argument is so woefully undeveloped and unsupported by citation to any legal authority that I decline to consider it. See Bird v. Regents of New Mexico State University, 619 Fed. Appx. 733, 766 (10^th Cir. Aug. 6, 2015) (arguments which re “conclusory, unsupported, and undeveloped” “are insufficient to overcome summary judgment “); Center for Biological Diversity v. Pizarchik, 858 F.Supp.2d 1221, 1230 n.11 (D. Colo. 2012) (court does not consider “cursory, unsupported, or otherwise inadequately briefed arguments”). To the extent Ms. Sheldon believed she required further discovery to make this argument, she has forfeited any such argument. See supra, note 4.

13. Without knowledge as to how any such corporations may be related to or associated with Golden Bell, it is impossible to say whether they would be covered by the Waiver and thus entitled to dismissal with prejudice. Cf. Roper v. Grayson, 81 F.3d 124, 126 (10^th Cir. 1996); Bustamante v. Board of County Commissioners of San Miguel County, 2009 WL 10706928 at *5 n.7 (D.N.M. Oct. 2, 2009).

@2023 Summit Magic Publishing, LLC SummitMagic@gmail.com

G-YQ06K3L262

Do Releases Work? Should I be using a Release in my Business? Will my customers be upset if I make them sign a release?

Posted: May 18, 2021 | Author: Recreation Law | Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest | Leave a comment

These and many other questions are answered in my book Outdoor Recreation Risk Management, Insurance and Law.

Releases, (or as some people incorrectly call them waivers) are a legal agreement that in advance of any possible injury identifies who will pay for what. Releases can and to stop lawsuits.

This book will explain releases and other defenses you can use to put yourself in a position to stop lawsuits and claims.

This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.

This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.

You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.

Table of Contents

Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2 U.S. Legal System and Legal Research

Chapter 3 Risk 25

Chapter 4 Risk, Accidents, and Litigation: Why People Sue

Chapter 5 Law 57

Chapter 6 Statutes that Affect Outdoor Recreation

Chapter 7 Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8 Defenses to Claims

Chapter 9 Minors

Chapter 10 Skiing and Ski Areas

Chapter 11 Other Commercial Recreational Activities

Chapter 12 Water Sports, Paddlesports, and water-based activities

Chapter 13 Rental Programs

Chapter 14 Insurance

$130.00 plus shipping

Artwork by Don Long donaldoelong@earthlink.net

New Book Aids Both CEOs and Students

Posted: August 1, 2019 | Author: Recreation Law | Filed under: Adventure Travel, Assumption of the Risk, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Insurance, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Mountain Biking, Mountaineering, Paddlesports, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Sea Kayaking, Ski Area, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Swimming, Whitewater Rafting, Zip Line | Tags: Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Desk Reference, Donkeys, Equine Activities (Horses, first aid, Good Samaritan Statutes, Hang gliding, Insurance, James H. Moss, Jurisdiction and Venue (Forum Selection), Law, Legal Case, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, Outdoor Industry, Outdoor recreation, Outdoor Recreation Insurance, Outdoor Recreation Risk Management, Paddlesports, Paragliding, Recreational Use Statute, Reference Book, Release (pre-injury contract not to sue), Reward, Risk, Risk Management, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Whitewater Rafting, zip line | Leave a comment

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Outdoor Recreation Insurance, Risk Management, and Law

Denver based James H. Moss, JD, an attorney who specializes in the legal issues of outdoor recreation and adventure travel companies, guides, outfitters, and manufacturers, has written a comprehensive legal guidebook titled, “Outdoor Recreation Insurance, Risk Management, and Law”. Sagamore Publishing, a well-known Illinois-based educational publisher, distributes the book.

Mr. Moss, who applied his 30 years of experience with the legal, insurance, and risk management issues of the outdoor industry, wrote the book in order to fill a void.

“There was nothing out there that looked at case law and applied it to legal problems in outdoor recreation,” Moss explained. “The goal of this book is to provide sound advice based on past law and experience.”

The Reference book is sold via the Summit Magic Publishing, LLC.

While written as a college-level textbook, the guide also serves as a legal primer for executives, managers, and business owners in the field of outdoor recreation. It discusses how to tackle, prevent, and overcome legal issues in all areas of the industry.

The book is organized into 14 chapters that are easily accessed as standalone topics, or read through comprehensively. Specific topics include rental programs, statues that affect outdoor recreation, skiing and ski areas, and defenses to claims. Mr. Moss also incorporated listings of legal definitions, cases, and statutes, making the book easy for laypeople to understand.

PURCHASE

TABLE OF CONTENTS

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

Perception versus Actual Risk

Risk v. Reward

Risk Evaluation

Risk Management Strategies

Humans & Risk

Risk = Accidents

Accidents may/may not lead to litigation

How Do You Deal with Risk?

How Does Acceptance of Risk Convert to Litigation?

Negative Feelings against the Business

Risk, Accidents & Litigation

No Real Acceptance of the Risk

No Money to Pay Injury Bills

No Health Insurance

Insurance Company Subrogation

Negative Feelings

Litigation

Dealing with Different People

Dealing with Victims

Develop a Friend & Eliminate a Lawsuit

Don’t Compound Minor Problems into Major Lawsuits

Emergency Medical Services

Additional Causes of Lawsuits in Outdoor Recreation

Employees

How Do You Handle A Victim?

Dealing with Different People

Dealing with Victims

Legal System in the United States

Courts

State Court System

Federal Court System

Other Court Systems

Laws

Statutes

Parties to a Lawsuit

Attorneys

Trials

Law

Torts

Negligence

Duty

Breach of the Duty

Injury

Proximate Causation

Damages

Determination of Duty Owed

Duty of an Outfitter

Duty of a Guide

Duty of Livery Owner

Duty of Rental Agent

Duty of Volunteer Youth Leader

In Loco Parentis

Intentional Torts

Gross Negligence

Willful & Wanton Negligence

Intentional Negligence

Negligence Per Se

Strict Liability

Attractive Nuisance

Results of Acts That Are More than Ordinary Negligence

Product Liability

Contracts

Breach of Contract

Breach of Warranty

Express Warranty

Implied Warranty

Warranty of Fitness for a Particular Purpose

Warranty of Merchantability

Warranty of Statute

Detrimental Reliance

Unjust Enrichment

Liquor Liability

Food Service Liability

Damages

Compensatory Damages

Special Damages

Punitive Damages

Statutory Defenses

Skier Safety Acts

Whitewater Guides & Outfitters

Equine Liability Acts

Legal Defenses

Assumption of Risk

Express Assumption of Risk

Implied Assumption of Risk

Primary Assumption of Risk

Secondary Assumption of Risk

Contributory Negligence

Assumption of Risk & Minors

Inherent Dangers

Assumption of Risk Documents.

Assumption of Risk as a Defense.

Statutory Assumption of Risk

Express Assumption of Risk

Contributory Negligence

Joint and Several Liability

Release, Waivers & Contracts Not to Sue

Why do you need them

Exculpatory Agreements

Releases

Waivers

Covenants Not to sue

Who should be covered

What should be included

Negligence Clause

Jurisdiction & Venue Clause

Assumption of Risk

Other Clauses

Indemnification

Hold Harmless Agreement

Liquidated Damages

Previous Experience

Misc

Photography release

Video Disclaimer

Drug and/or Alcohol clause

Medical Transportation & Release

HIPAA

Problem Areas

What the Courts do not want to see

Statute of Limitations

Minors

Adults

Defenses Myths

Agreements to Participate

Parental Consent Agreements

Informed Consent Agreements

Certification

Accreditation

Standards, Guidelines & Protocols

License

Specific Occupational Risks

Personal Liability of Instructors, Teachers & Educators

College & University Issues

Animal Operations, Packers

Equine Activities

Canoe Livery Operations

Tube rentals

Downhill Skiing

Ski Rental Programs

Indoor Climbing Walls

Instructional Programs

Mountaineering

Retail Rental Programs

Rock Climbing

Tubing Hills

Whitewater Rafting

Risk Management Plan

Introduction for Risk Management Plans

What Is A Risk Management Plan?

What should be in a Risk Management Plan

Risk Management Plan Template

Ideas on Developing a Risk Management Plan

Preparing your Business for Unknown Disasters

Building Fire & Evacuation

Dealing with an Emergency

Insurance

Theory of Insurance

Insurance Companies

Deductibles

Self-Insured Retention

Personal v. Commercial Policies

Types of Policies

Automobile

Comprehension

Collision

Bodily Injury

Property Damage

Uninsured Motorist

Personal Injury Protection

Non-Owned Automobile

Hired Car

Fire Policy

Coverage

Liability

Named Peril v. All Risk

Commercial Policies

Underwriting

Exclusions

Special Endorsements

Rescue Reimbursement

Policy Procedures

Coverage’s

Agents

Brokers

General Agents

Captive Agents

Types of Policies

Claims Made

Occurrence

Claims

Federal and State Government Insurance Requirements

Bibliography

Index

The 427-page volume is sold via Summit Magic Publishing, LLC.

What is a Risk Management Plan and What do You Need in Yours?

Posted: July 25, 2019 | Author: Recreation Law | Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, risk management plan, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Whitewater Rafting, zip line | Leave a comment

Everyone has told you, that you need a risk management plan. A plan to follow if you have

Outdoor Recreation Insurance, Risk Management, and Law

a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure your plan is a workable plan, not one that will create liability for you.

Table of Contents

Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2 U.S. Legal System and Legal Research

Chapter 3 Risk 25

Chapter 4 Risk, Accidents, and Litigation: Why People Sue

Chapter 5 Law 57

Chapter 6 Statutes that Affect Outdoor Recreation

Chapter 7 PreInjury Contracts to Prevent Litigation: Releases

Chapter 8 Defenses to Claims

Chapter 9 Minors

Chapter 10 Skiing and Ski Areas

Chapter 11 Other Commercial Recreational Activities

Chapter 12 Water Sports, Paddlesports, and water-based activities

Chapter 13 Rental Programs

Chapter 14 Insurance

$130.00 plus shipping

Can’t Sleep? Guest was injured, and you don’t know what to do? This book can answer those questions for you.

Posted: July 23, 2019 | Author: Recreation Law | Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Camping, Climbing, Climbing Wall, Contract, Criminal Liability, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, How, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest | Leave a comment

An injured guest is everyone’s business owner’s nightmare. What happened, how do you make sure it does not happen again, what can you do to help the guest, can you help the guests are just some of the questions that might be keeping you up at night.

This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.

This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.

You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.

Table of Contents

Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2 U.S. Legal System and Legal Research

Chapter 3 Risk 25

Chapter 4 Risk, Accidents, and Litigation: Why People Sue

Chapter 5 Law 57

Chapter 6 Statutes that Affect Outdoor Recreation

Chapter 7 Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8 Defenses to Claims

Chapter 9 Minors

Chapter 10 Skiing and Ski Areas

Chapter 11 Other Commercial Recreational Activities

Chapter 12 Water Sports, Paddlesports, and water-based activities

Chapter 13 Rental Programs

Chapter 14 Insurance

$130.00 plus shipping

Need a Handy Reference Guide to Understand your Insurance Policy?

Posted: July 18, 2019 | Author: Recreation Law | Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Challenge or Ropes Course, Climbing, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Whitewater Rafting, zip line | Leave a comment

This book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.

Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2 U.S. Legal System and Legal Research

Chapter 3 Risk 25

Chapter 4 Risk, Accidents, and Litigation: Why People Sue

Chapter 5 Law 57

Chapter 6 Statutes that Affect Outdoor Recreation

Chapter 7 PreInjury Contracts to Prevent Litigation: Releases

Chapter 8 Defenses to Claims

Chapter 9 Minors

Chapter 10 Skiing and Ski Areas

Chapter 11 Other Commercial Recreational Activities

Chapter 12 Water Sports, Paddlesports, and water-based activities

Chapter 13 Rental Programs

Chapter 14 Insurance

$99.00 plus shipping

Do Releases Work? Should I be using a Release in my Business? Will my customers be upset if I make them sign a release?

Posted: April 30, 2019 | Author: Recreation Law | Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest | Leave a comment

These and many other questions are answered in my book Outdoor Recreation Risk Management, Insurance and Law.

Releases, (or as some people incorrectly call them waivers) are a legal agreement that in advance of any possible injury identifies who will pay for what. Releases can and to stop lawsuits.

This book will explain releases and other defenses you can use to put yourself in a position to stop lawsuits and claims.

This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.

This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.

You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.

Table of Contents

Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2 U.S. Legal System and Legal Research

Chapter 3 Risk 25

Chapter 4 Risk, Accidents, and Litigation: Why People Sue

Chapter 5 Law 57

Chapter 6 Statutes that Affect Outdoor Recreation

Chapter 7 Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8 Defenses to Claims

Chapter 9 Minors

Chapter 10 Skiing and Ski Areas

Chapter 11 Other Commercial Recreational Activities

Chapter 12 Water Sports, Paddlesports, and water-based activities

Chapter 13 Rental Programs

Chapter 14 Insurance

$99.00 plus shipping

Artwork by Don Long donaldoelong@earthlink.net

Can’t Sleep? Guest was injured, and you don’t know what to do? This book can answer those questions for you.

Posted: April 16, 2019 | Author: Recreation Law | Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Camping, Climbing, Climbing Wall, Contract, Criminal Liability, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, How, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest | Leave a comment

This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.

This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.

You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.

Table of Contents

Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2 U.S. Legal System and Legal Research

Chapter 3 Risk 25

Chapter 4 Risk, Accidents, and Litigation: Why People Sue

Chapter 5 Law 57

Chapter 6 Statutes that Affect Outdoor Recreation

Chapter 7 Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8 Defenses to Claims

Chapter 9 Minors

Chapter 10 Skiing and Ski Areas

Chapter 11 Other Commercial Recreational Activities

Chapter 12 Water Sports, Paddlesports, and water-based activities

Chapter 13 Rental Programs

Chapter 14 Insurance

$130.00 plus shipping

What is a Risk Management Plan and What do You Need in Yours?

Posted: April 11, 2019 | Author: Recreation Law | Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, risk management plan, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Whitewater Rafting, zip line | Leave a comment

Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

Table of Contents

Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2 U.S. Legal System and Legal Research

Chapter 3 Risk 25

Chapter 4 Risk, Accidents, and Litigation: Why People Sue

Chapter 5 Law 57

Chapter 6 Statutes that Affect Outdoor Recreation

Chapter 7 PreInjury Contracts to Prevent Litigation: Releases

Chapter 8 Defenses to Claims

Chapter 9 Minors

Chapter 10 Skiing and Ski Areas

Chapter 11 Other Commercial Recreational Activities

Chapter 12 Water Sports, Paddlesports, and water-based activities

Chapter 13 Rental Programs

Chapter 14 Insurance

$99.00 plus shipping

Need a Handy Reference Guide to Understand your Insurance Policy?

Posted: April 2, 2019 | Author: Recreation Law | Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Challenge or Ropes Course, Climbing, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Whitewater Rafting, zip line | Leave a comment

Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2 U.S. Legal System and Legal Research

Chapter 3 Risk 25

Chapter 4 Risk, Accidents, and Litigation: Why People Sue

Chapter 5 Law 57

Chapter 6 Statutes that Affect Outdoor Recreation

Chapter 7 PreInjury Contracts to Prevent Litigation: Releases

Chapter 8 Defenses to Claims

Chapter 9 Minors

Chapter 10 Skiing and Ski Areas

Chapter 11 Other Commercial Recreational Activities

Chapter 12 Water Sports, Paddlesports, and water-based activities

Chapter 13 Rental Programs

Chapter 14 Insurance

$99.00 plus shipping

2nd Annual Adventure Trainer’s

Posted: August 10, 2018 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Zip Line | Tags: Leahy, Ropes course, zip line | Leave a comment

https://i0.wp.com/files.constantcontact.com/cbcab44a001/1b499338-3916-480a-a5dd-990735b51793.jpg

WHAT:

The 2nd Annual Adventure Trainer’s Lab is an advanced level conference that offers professional development and continuing education opportunities to TRAINERS working in the “traditional use” and “amusement device” fields of…challenge course, zip line, canopy tour and adventure parks.

In 2017, the first ever Adventure Trainer’s Lab attracted an impressive and diverse group of trainers. Overall, the response was very positive and the closing debrief provided us with feedback to enhance the quality and value of the conference.

It is our intention that The Adventure Trainer’s Lab be responsive to and evolve based on the input of all trainers.

WHY:

Adventure trainers are largely responsible for the growth and efficacy of these experiential modalities yet opportunities for professional development and continuing education are rare. Thus, leaving many adventure trainers at a loss for resources or a body of peers to engage in healthy dialog and debate.

Until now…The Adventure Trainer’s Lab seeks to positively influence the safety, efficacy and sustainability of the adventure and experiential fields by supporting the development and evolution of trainers.

HOW:

The format for The Adventure Trainer’s Lab is a 3-day gathering combining prepared sessions / speakers with the dynamic and responsive nature of “Open Space Technology”.

“Open Space Technology” is the epitome of experiential education as it engages participants fully in the content, direction and flow of the conference.

In the months leading up to the conference, we are seeking your input into the content you need, presenters you value and your ideas of how to make the event highly productive and meaningful.

Help us to create the conference that will serve you.

WHO:

If you train facilitators and guides in the “traditional use” and/or “amusement device” fields of…challenge course, zip line, canopy tour and adventure parks, then…this conference is for YOU!

You may work for a…school district / university, camp, therapeutic facility, resort / retreat center, government agency, commercial adventure program, or for a professional vendor, etc.

Or, you have / are pursuing an advanced degree in education or training.

Or, you provide products, services or training to trainers (and/or) facilitators.

DISCOUNTS:

New in 2018…the ALUMNI RATE! You are eligible if you attended The Adventure Trainer’s Lab in 2017.

Alumni rates ALSO apply to employees of an organization that have sent participants to a previous Adventure Trainer’s Lab.

BIRDS OF A FEATHER FLOCK TOGETHER:

Join us December 3-5, 2018 at the Renaissance Boulder Flatiron Hotel as we…exchange ideas, share best practices, build our knowledge, develop testing rubrics, debate higher levels of certification and find new trainer employees / employers. Come with your questions, your knowledge and your passion.

Let’s create a learning community of adventure trainers and raise the bar on facilitation and training for recreation, education and therapy!

For complete conference information and registration, click here

EARLIER Bird registration ends…September 28, 2018

Virus-free. www.avast.com

Need a Handy Reference Guide to Understand your Insurance Policy?

Posted: May 28, 2018 | Author: Recreation Law | Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Challenge or Ropes Course, Climbing, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, and Law, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Risk Management | Leave a comment

Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2 U.S. Legal System and Legal Research

Chapter 3 Risk 25

Chapter 4 Risk, Accidents, and Litigation: Why People Sue

Chapter 5 Law 57

Chapter 6 Statutes that Affect Outdoor Recreation

Chapter 7 PreInjury Contracts to Prevent Litigation: Releases

Chapter 8 Defenses to Claims

Chapter 9 Minors

Chapter 10 Skiing and Ski Areas

Chapter 11 Other Commercial Recreational Activities

Chapter 12 Water Sports, Paddlesports, and water-based activities

Chapter 13 Rental Programs

Chapter 14 Insurance

$99.00 plus shipping

Poorly written jurisdiction and venue clause places the defendant in jam when the defendant counter claims for attorney fees and costs.

Posted: February 5, 2018 | Author: Recreation Law | Filed under: Jurisdiction and Venue (Forum Selection), Massachusetts, Zip Line | Tags: authenticity, Binding, canopy, causes of action, contractual, counterclaim, designated, enforceability, federal common law, file suit, Forum selection clause, fraudulently induced, harmless, indemnify, interpreting, Jurisdiction, Jurisdiction and Venue (Forum Selection), Jurisdiction and Venue Clause, Lawsuit, mandatory, Ordinary Negligence, permissive, present case, qualifying, recommendations, removal, Venue, written objection, zip | 2 Comments

This case was based on a zip-line accident. The release signed by the plaintiff had a forum selection clause, also known as a jurisdiction and venture clause. However, the clause was limited way so that when the defendant brought a counterclaim for attorney fees, it negated the forum selection clause.

Pittman, v. Zoar Outdoor Adventure Resort, Inc., 2017 U.S. Dist. LEXIS 107839

State: Massachusetts, United States District Court for the District of Massachusetts

Plaintiff: Josephine Pittman

Defendant: Zoar Outdoor Adventure Resort, Inc.

Plaintiff Claims: gross negligence and fraudulent inducement concerning a participant agreement and waiver of liability

Defendant Defenses: Release

Holding: Basically, for the Plaintiff

Year: 2017

Summary

This case was based on a zip line accident at the defendant’s location. The plaintiff filed the case in state court in Massachusetts. The defendant then removed the case to Federal District Court because the parties were from two different states.

After removal, the defendant filed a counterclaim for fees and costs as per the release. The plaintiff filed a motion to dismiss the counter claim because it was filed in the wrong court. Meaning the jurisdiction and venue clause was written in such a way it only applied to the complaint and not the counterclaim.

Facts

The facts concerning the actual accident are nowhere in the decision. This decision is based solely on the issues of jurisdiction and venue.

This opinion is based upon a motion to dismiss filed by the plaintiff, to dismiss the counter claim of the defendant for attorney fees and costs for filing the complaint to begin with.

No decision on the facts was made as of the writing of this decision.

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

The court did a thorough analysis of forum selection clauses in its review of the issues.

In that jurisdiction, forum selection clauses, also known as jurisdiction and venue clauses, are valid and usually upheld. “Forum selection clauses “‘are prima facie valid and should be enforced.'”

There are two issues the court must review to determine if the forum selection clause should be followed.

Before giving effect to a forum selection clause, a court must address certain threshold is-sues, including whether: (1) the clause is mandatory or permissive; and (2) the clause governs the claims allegedly subject to it.

There are two types of forum selection clauses, mandatory and permissive. Permissive forum selection clauses allow the parties to change the jurisdiction and venue. Mandatory clauses require the court to follow the contract and change the venue and apply the jurisdiction identified in the forum selection clause.

Not only is the language in the clause used to determine if it is permissive or mandatory, but also if the forum selection clause refers to a venue. Mandatory forum selection clauses include a required venue.

The next part, whether the clause governs the claims allegedly subject to the clause was the major issue. Consequently, the language of the clause was the difference. The clause stated: “”[i]n the event [Plaintiff] file[s] a lawsuit against Zoar, [Plaintiff] agree[s]” to the venue specified in paragraph 6 of the Participant Agreement”

The court interpreted the clause to only apply to the lawsuit brought by the plaintiff, as the clause states. The court found the forum selection clause did not apply to the counterclaim filed by the defendant against the plaintiff.

Thus, by far the most persuasive reading of the forum selection clause is that it dictated the venue where Plaintiff could file suit against Defendant but did not waive Defendant’s right of removal or dictate the forum in which Defendant could bring claims against Plaintiff arising out of the Participant Agreement.

However, here is where the decision starts to twist, and the defendant is saved, but only saved by accident.

The plaintiff in filing their motion to dismiss the counterclaim did not also move to change the venue or send the case back to state court. The plaintiff’s claim was going to be litigated in Federal District court where it has been moved.

The court implies if the plaintiff had moved to dismiss or change venue the court might have been inclined to do so. As it was, the forum selection clause only applied to the plaintiff’s claims against the defendant. The court claim was not subject to the clause.

However, since the majority of the lawsuit would be based on the plaintiff’s complaint, it would be jurisdictionally economical to keep both cases together. Furthermore, the plaintiff claimed in her defense to the release that she was fraudulently induced to sign the release. If she prevailed on that claim, the forum selection clause would not apply because the contract, the release would not be valid.

If she succeeds in meeting her burden of proof on this point, she will not be bound by the terms of the Participant Agreement, which is the sole basis for Defendant’s counterclaim for fees and costs. Thus, Plaintiff’s claims and Defendant’s counterclaim “involve a common nucleus of operative fact [and] all claims should be adjudicated together in this court.

So, until the trial is over on the plaintiff’s complaint and the validity of the plaintiff’s defense to the release, the motion to change the venue because the forum selection, clause did not apply to the country claim was denied.

The court dismissed the plaintiff’s motion to dismiss the defendant’s counterclaim.

So Now What?

Here again, not understanding the breath of a lawsuit when writing a release almost cost the defendant. Judicial economy, not wasting the court’s time and money or either of the parties’ time and money is what saved the day.

If you need your release written properly to cover the issues, you have, the people you market too and the activities you offer, please contact me.

What do you think? Leave a comment.

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

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

Pittman, v. Zoar Outdoor Adventure Resort, Inc., 2017 U.S. Dist. LEXIS 107839

Posted: January 20, 2018 | Author: Recreation Law | Filed under: Jurisdiction and Venue (Forum Selection), Legal Case, Massachusetts, Release (pre-injury contract not to sue), Zip Line | Tags: authenticity, Binding, canopy, causes of action, contractual, counterclaim, designated, enforceability, federal common law, file suit, Forum selection clause, fraudulently induced, harmless, indemnify, interpreting, Jurisdiction, Jurisdiction and Venue (Forum Selection), Jurisdiction and Venue Clause, Lawsuit, mandatory, Ordinary Negligence, permissive, present case, qualifying, recommendations, removal, Venue, written objection, zip, zip line | Leave a comment

Pittman, v. Zoar Outdoor Adventure Resort, Inc., 2017 U.S. Dist. LEXIS 107839

Josephine Pittman, Plaintiff, v. Zoar Outdoor Adventure Resort, Inc., Defendant.

Civil Action No. 16-30182-MGM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

2017 U.S. Dist. LEXIS 107839

June 9, 2017, Decided

June 9, 2017, Filed

SUBSEQUENT HISTORY: Adopted by, Motion denied by Pittman v. Zoar Outdoor Adventure Resort, Inc., 2017 U.S. Dist. LEXIS 106873 (D. Mass., July 11, 2017)

COUNSEL: [*1] For Josephine Pittman, Plaintiff, Counter Defendant: Timothy L. O’Keefe, LEAD ATTORNEY, Brittani K. Morgan, Kenny, O’Keefe & Usseglio, P.C., Hartford, CT; Timothy P. Wickstrom, Wickstrom Morse, LLP, Whitinsville, MA.

For Zoar Outdoor Adventure Resort, Inc., Defendant, Counter Claimant: Thomas B. Farrey, III, LEAD ATTORNEY, Burns & Farrey, Worcester, MA; Michael W. Garland, Burns & Farrey, P.C., Worcester, MA.

For Zoar Outdoor Adventure Resort, Inc., Counter Claimant: Thomas B. Farrey, III, LEAD ATTORNEY, Burns & Farrey, Worcester, MA.

For Josephine Pittman, Counter Defendant: Timothy L. O’Keefe, LEAD ATTORNEY, Brittani K. Morgan, Kenny, O’Keefe & Usseglio, P.C., Hartford, CT.

JUDGES: KATHERINE A. ROBERTSON, United States Magistrate Judge.

OPINION BY: KATHERINE A. ROBERTSON

OPINION

REPORT AND RECOMMENDATION ON PLAINTIFF’S MOTION TO DISMISS COUNTERLCLAIM FOR IMPROPER VENUE

(Dkt. No. 11)

ROBERTSON, U.S.M.J.

I. Introduction

On or around October 19, 2016, plaintiff Josephine Pittman (“Plaintiff”) filed a complaint in the Trial Court of the Commonwealth of Massachusetts, Superior Court Department, Franklin County (Dkt. No. 1-1). In summary, the complaint alleged that Plaintiff suffered serious injuries as a participant in a zip [*2] line canopy tour on the premises of defendant Zoar Outdoor Adventure Resort, Inc. (“Defendant”). Defendant removed the case to this court pursuant to 28 U.S.C. § 1441(a), which provides for removal of actions where the parties are diverse (Dkt. No. 1). In this court, Defendant answered the complaint and asserted a counterclaim against Plaintiff for fees and costs (Dkt. No. 3). Presently before the court is Plaintiff’s Motion to Dismiss Counterclaim for Improper Venue (“Plaintiff’s Motion to Dismiss”), which was referred to the undersigned for Report and Recommendation by the presiding District Judge (Dkt. No. 27). For the reasons set forth below, the court recommends that Plaintiff’s Motion to Dismiss be denied.

II. Relevant background

Plaintiff’s initial complaint (“Complaint”) asserted claims of gross negligence (Count I) and fraudulent inducement concerning a participant agreement and waiver of liability (“Participant Agreement”) signed by Plaintiff as a condition of her participation in the zip lining activity (Count II) (Dkt. No. 1-1).¹ In its response to the Complaint, Defendant asserted a counterclaim for contractual indemnification based on the contents of the Participation Agreement signed by Plaintiff. [*3] ² Defendant attached a copy of the Participant Agreement as Exhibit A to Defendant’s Answer to Plaintiff’s Complaint, Counterclaim and Claim for Jury Trial (Dkt. No. 3).

1 With leave of court, Plaintiff filed an amended complaint on June 5, 2017 (“Amended Complaint”), adding a claim of ordinary negligence and claims of loss of consortium on behalf of her husband, Ronald Pittman, and her daughter, Lillian Pittman (Dkt. No. 34).

2 The formal title of the document is “Participant Agreement, Release and Acknowledgement of Risk.”

In relevant part, the Participant Agreement provides as follows:

2. I expressly agree to and promise to accept and assume all of the risks existing in this activity [expressly including zip line canopy tours]. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks.

3. I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless Zoar from any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity or my use of Zoar’s equipment, vehicles, facilities, or premises before, during, and after this activity including any such claims which allege negligent acts or omissions of Zoar.

4. Should Zoar or anyone acting on their behalf, be required to incur attorney’s fees and costs to enforce this agreement, I agree to indemnify and hold them harmless for all such fees and costs.

. . .

6. In the event that I file a lawsuit against Zoar, I agree the Venue of any dispute that may arise out of this agreement [*4] or otherwise between the parties to which Zoar or its agents is a party shall be either in the town of Charlemont, Massachusetts Justice Court or the County or State Supreme Court in Franklin County, Massachusetts. I further agree that the substantive law of Massachusetts shall apply in that action without regard to the conflict of law rules of that state.³

(Dkt. No. 3-1 at 2).

3 The court takes judicial notice of the fact that a “town of Charlemont Justice Court” does not exist in Charlemont, Massachusetts. The parties agreed at oral argument that the Superior Court in Franklin County is the venue designated by the forum selection clause.

Plaintiff’s Motion to Dismiss is based solely on the forum selection clause in paragraph 6 of the Participant Agreement (Dkt. No. 11).

III. Standard of Review and Applicable Law

In this circuit, a motion to dismiss based on a forum selection clause is treated “as a motion alleging the failure to state a claim for which relief can be granted under Rule 12(b)(6).” Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009) (citing Silva v. Encyclopedia Britannica, Inc., 239 F.3d 385, 387 & n.3 (1st Cir. 2001)). This court “must ‘accept as true the well-pleaded factual allegations of the complaint, draw all reasonable inferences therefrom in the [counterclaim] plaintiff’s favor, and determine whether the [counterclaim], so read, limns facts sufficient to justify recovery on any cognizable theory.'” Id. (quoting LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir. 1998)). A court considering a motion to dismiss “may properly consider only facts and documents that are part of or incorporated into the complaint.” Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008). In the present [*5] action, Defendant has attached the Participant Agreement in support of its counterclaim, and neither party disputes the authenticity of the document. Accordingly, in ruling on Plaintiff’s Motion to Dismiss, the court may appropriately take into account the contents of the Participant Agreement, including the choice of forum provision which is the basis of that motion. See Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001) (document sufficiently referred to in the complaint, the authenticity of which is not disputed, properly may be considered on a 12(b)(6) motion).

It remains an unsettled question in this circuit whether “‘forum selection clauses are to be treated as substantive or procedural for Erie purposes.'” Rivera, 575 F.3d at 16 (quoting Lambert v. Kysar, 983 F.2d 1110, 1116 & n.10 (1st Cir. 1993)). This is a question that the court need not address. See id. The forum selection clause in the Participant Agreement provides that Massachusetts law shall apply to legal actions arising out of the agreement or otherwise between the parties (Dkt. No. 35-1 at 1, ¶ 6). This court should, therefore, look to Massachusetts law for principles bearing on interpretation of the Participant Agreement. That said, there is no conflict between federal common law and Massachusetts law regarding the enforceability and interpretation [*6] of forum selection clauses. See generally Boland v. George S. May Int’l Co., 81 Mass. App. Ct. 817, 969 N.E.2d 166, 169-74 (Mass. App. Ct. 2012) (relying on federal and Massachusetts law for purposes of interpreting a forum selection clause). Accordingly, it is also appropriate for this court to apply federal common law in ruling on the enforceability and interpretation of the Participant Agreement’s forum selection clause. See Rivera, 575 F.3d at 16-17; see also OsComp Sys., Inc. v. Bakken Express, LLC, 930 F. Supp. 2d 261, 268 n.3 (D. Mass. 2013) (relying on federal common law where the parties did so; noting that there do not appear to be material discrepancies between federal and Massachusetts law regarding the validity and interpretation of forum selection clauses); Summa Humma Enters., LLC v. Fisher Eng’g, Civil No. 12-cv-367-LM, 2013 U.S. Dist. LEXIS 856, 2013 WL 57042, at *3 (D. Me. Jan. 3, 2013) (court would apply Maine law to interpretation of forum selection clauses; because Maine law was co-extensive with federal law concerning the interpretation of a forum selection clause, the court would also apply federal common law to the interpretive task).

IV. Analysis

Notwithstanding citations to cases ruling that forum selection clauses can constitute a waiver of a defendant’s right to remove a case to federal court, Plaintiff has not moved for dismissal or remand of this case to the state court where it was filed. Rather, Plaintiff’s Motion to Dismiss is limited [*7] to seeking dismissal of Defendant’s counterclaim. On this point, Plaintiff contends that this court is an improper venue for a counterclaim alleging contractual indemnity because the claim is a dispute between the parties that arises out of the Participant Agreement. Plaintiff notes that, in setting forth the designated venue, the forum selection clause uses the word “shall,” which, Plaintiff argues, connotes a mandatory choice of venue which is binding on Defendant (Dkt. No. 12). Defendant opposes Plaintiff’s Motion to Dismiss on the ground that the forum selection clause was binding on Plaintiff, but by its terms, did not constrain Defendant’s choice of venue for any claims it had against Plaintiff arising from the Participant Agreement (Dkt. No. 15). In the court’s view, Defendant has the better of the arguments.

Forum selection clauses “‘are prima facie valid and should be enforced.'” Silva, 239 F.3d at 386 (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972)). “A forum selection clause ‘does not divest a court of [the] jurisdiction it otherwise retains, rather it constitutes a stipulation in which the parties join in asking the court to give effect to their agreement by declining to exercise jurisdiction.'” Provanzano v. Parker View Farm, Inc., 827 F. Supp. 2d 53, 58 (D. Mass. 2011) (quoting Silva, 239 F.3d at 389 n.6). Before giving effect to [*8] a forum selection clause, a court must address certain threshold issues, including whether: (1) the clause is mandatory or permissive; and (2) the clause governs the claims allegedly subject to it. See id.

1. The Forum Selection Clause is Mandatory as to Claims to Which it Applies

“‘Permissive forum selection clauses, often described as “consent to jurisdiction” clauses, authorize jurisdiction and venue in a designated forum, but do not prohibit litigation elsewhere. . . . In contrast, mandatory forum selection clauses contain clear language indicating that jurisdiction and venue are appropriate exclusively in the designated forum.'” Rivera, 575 F.3d at 17 (quoting 14D C.A. Wright, A.R. Miller & E.H. Cooper, Federal Practice and Procedure § 3803.1 (3d ed. 1998)). “The use of words such as ‘will’ or ‘shall’ demonstrate parties’ exclusive commitment to the named forum.” Provanzano, 827 F. Supp. 2d at 60 (citing Summit Packaging Sys., Inc. v. Kenyon & Kenyon, 273 F.3d 9, 12 (1st Cir. 2001)). Moreover, “[a] crucial distinction between mandatory and permissive clauses is whether the clause only mentions jurisdiction or specifically refers to venue.” Arguss Communs. Group, Inc. v. Teletron, Inc., No. CIV. 99-257-JD, 1999 U.S. Dist. LEXIS 18085, 2000 WL 36936, at *7 (D.N.H. Nov. 19, 1999). In the present case, “[b]ecause the [Participant] Agreement uses the term ‘shall’ to describe . . . the commitment to resolving . . . [certain] litigation [*9] ‘in [either the town of Charlemont, Massachusetts Justice Court or the County or State Supreme Court in Franklin County, Massachusetts,’] [and because it refers to ‘venue,’ not just ‘jurisdiction,’] it is a mandatory clause.” Xiao Wei Yang Catering Linkage in Inner Mongolia Co., LTD v. Inner Mongolia Xiao Wei Yang USA, Inc., 150 F. Supp. 3d 71, 77 (D. Mass. 2015). Indeed, the parties do not appear to dispute that the forum selection clause in the Participant Agreement is mandatory as to claims to which it applies.

2. The Forum Selection Clause Does Not Apply to Defendant’s Counterclaim

Whether to enforce a forum selection clause depends on whether the clause governs the claims asserted in the lawsuit. See Provanzano, 827 F. Supp. 2d at 60 (citing Huffington v. T.C. Grp., LLC, 637 F.3d 18, 21 (1st Cir. 2011)); see also Pacheco v. St. Luke’s Emergency Assocs., P.C., 879 F. Supp. 2d 136, 140 (D. Mass. 2012). This is a matter of interpreting the terms of the contract between the parties. “The construction of a written contract which is plain in its terms and free from ambiguity presents a question of law for the court,'” Boland, 969 N.E.2d at 173 (quoting Hiller v. Submarine Signal Co., 325 Mass. 546, 91 N.E.2d 667, 669 (Mass. 1950)), and it is “‘the language of the forum selection clause itself that determines which claims fall within its scope.'” Pacheco, 879 F. Supp. 2d at 140 (quoting Rivera, 575 F.3d at 19).

In the present case, the plain language of the forum selection clause mandated venue in the Franklin County Superior Court, but only as to claims asserted by Plaintiff. Plaintiff’s contention that the forum selection clause is binding on Defendant ignores the qualifying introductory clause of the provision, which states [*10] that “[i]n the event [Plaintiff] file[s] a lawsuit against Zoar, [Plaintiff] agree[s]” to the venue specified in paragraph 6 of the Participant Agreement (Dkt No. 3-1 at 2). In this case, as in Rivera, the mandatory venue language “is preceded and informed by a qualifying phrase: ‘In the event that . . . [I file suit against Zoar] . . ., I . . . agree [the Venue] . . . .’ That is, the [Participant Agreement] required [Plaintiff] to assert any causes of action that [she] may have against [Defendant] in the [Franklin County Superior Court].” Rivera, 575 F.3d at 18. There is no comparable venue provision, nor is there any mandatory or restrictive language, in paragraph 4 related to an assertion by Defendant of a claim for recovery of attorney’s fees and costs (Dkt. No. 3-1 at 2). Thus, by far the most persuasive reading of the forum selection clause is that it dictated the venue where Plaintiff could file suit against Defendant but did not waive Defendant’s right of removal or dictate the forum in which Defendant could bring claims against Plaintiff arising out of the Participant Agreement. See Pacheco, 879 F. Supp. 2d at 140; Boland, 969 N.E.2d at 174; cf. Xiao Wei Catering Linkage, 150 F. Supp. 3d at 77 (satisfaction of condition precedent was required to trigger application of a forum selection clause).

Furthermore, because [*11] Plaintiff has not moved for remand and intends to prosecute her claims against Defendant in this court, it would be a waste of judicial resources to require Defendant to seek recovery of fees and costs in a separate state court action. In Count II of Plaintiff’s Complaint (and her amended complaint), she has alleged that she was fraudulently induced to sign the Participant Agreement. “It is black-letter law that an agreement . . . is voidable by a party who is fraudulently induced to enter into it.” Green v. Harvard Vanguard Med. Assocs., Inc., 79 Mass. App. Ct. 1, 944 N.E.2d 184, 193 (Mass. App. Ct. 2011); see also St. Fleur v. WPI Cable Sys./Mutron, 450 Mass. 345, 879 N.E.2d 27, 35 (Mass. 2008) (a party is not bound by a contract she was fraudulently induced to sign). To prevail on the claim of ordinary negligence alleged in the Amended Complaint, Plaintiff will be required to prove that she was fraudulently induced to sign the Participant Agreement. See Lee v. Allied Sports Assocs., 349 Mass. 544, 209 N.E.2d 329, 332-33 (Mass. 1965). If she succeeds in meeting her burden of proof on this point, she will not be bound by the terms of the Participant Agreement, which is the sole basis for Defendant’s counterclaim for fees and costs. Thus, Plaintiff’s claims and Defendant’s counterclaim “involve a common nucleus of operative fact [and] all claims should be adjudicated together in this court.” Pacheco, 879 F. Supp. 2d at 138.

V. Conclusion

For these reasons, it is this court’s RECOMMENDATION [*12] that Plaintiff’s Motion be DENIED.⁴

4 The parties are advised that under the provisions of Fed. R. Civ. P. 72(b) or Fed. R. Crim. P. 59(b), any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within fourteen (14) days of the party’s receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of HHS, 848 F.2d 271, 275 (1st Cir. 1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir. 1980). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). A party may respond to another party’s objections within fourteen (14) days after being served with a copy thereof.

/s/ Katherine A. Robertson

KATHERINE A. ROBERTSON

United States Magistrate Judge

DATED: June 9, 2017

Just because you have a piece of paper saying you are an additional insured, it does not mean there is any coverage under any policy to protect you.

Posted: August 14, 2017 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Insurance, Minors, Youth, Children, Missouri, Summer Camp, Youth Camps, Zip Line | Tags: Additional Insured, Ambiguity, Ambiguous, Camper, certificate, Certificate of Insurance, challenge course, church, Church Camp, coverage, declarations, denial letter, dining hall, duty to defend, endorsement, Guest, Insurance policy, insured, latent ambiguity, Lawsuit, lease, leased, liability arising, liability coverage, Liability insurance, lodge, lodging, meal, named insured, ordinary person, owes, Ropes course, space, Summary judgment, tenant, Youth Camp, zip line | Leave a comment

Additional insured certificates are limited by two things, what the underlying policy provides coverage for and what the certificate of insurance says it will cover. Lacking coverage under the policy or lacking the necessary language in the additional insured certificate you are hanging in the wind without any insurance coverage.

For an additional insured certificate to be valid, you must put together three things. A contract which identifies the requirements or insurance you are looking for. An insurance policy that insures those requirements and a certificate of insurance that covers those requirements or better states as the requirements are set forth in the original contract. Lacking any, one of those and you are just wasting paper.

When you get a certificate of insurance, you must then read it to make sure you meet the requirements it may set out. If there is a limitation on the amount of time you have to file a claim or a specific way to notify the insured, make sure you follow those procedures.

Finally, whenever you file any claim with any insurance company for coverage, follow the procedures the policy requires then follow up with a letter providing notice the insurance company in writing.

Great American Alliance Insurance Company, v. Windermere Baptist Conference Center, Inc., et al., 2017 U.S. Dist. LEXIS 103148

State: Missouri, United States District Court for the Western District of Missouri, Central Division

Plaintiff: Great American Alliance Insurance Company

Defendant: Windermere Baptist Conference Center, Inc., et al.

Plaintiff Claims: Great American now moves for summary judgment on its requested declaratory judgment that: (1) no liability coverage exists under its policy issued to Student Life for any claims asserted in the underlying lawsuit against Windermere or Windermere’s employees, including Kendra Brown; (2) Great American owes no duty to defend Windermere, Kendra Brown, or any other Windermere employees in the underlying lawsuit; and
(3) no medical payments coverage exists for Karlee Richards.

Defendant Defenses: No coverage provided under the policy or certificate of insurance

Holding: Split decision, however the insurance company will not pay anything under the certificate of insurance

Year: 2017

This is a legally complicated case with simple facts. A church rented a camp from Student Life, which had contracted with a church camp called Windermere. The reservation form and simple agreement between the camp and the church required the issuance of a certificate of insurance.

A camper, part of the church group fell while riding the zip line. She sued. That lawsuit was still pending when this lawsuit was started to determine whose insurance was required to defend against the camper’s lawsuit.

In that case, damages are being sought against them for injuries sustained by Karlee Richards after she fell while zip-lining at The Edge, a ropes course at Windermere’s Conference Center. Kendra Brown was an employee of Windermere, working at the Edge at the time of the accident.

The injured camper Richards was with the Searcy Baptist Church. They rented the camp through Student Life. Student Life rented the camp from Windermere. The contract between Student Life and Windermere is the one at question here. Windermere required a certificate of insurance from Student Life.

June 2014, Karlee Richards and her Searcy Baptist Church youth group were attending a summer camp at Windermere’s Conference Center, which was sponsored by Lifeway Christian Resources of the Southern Baptist Conference, d.b.a. Student Life. Student Life contracted with Windermere to hold the church camp at Windermere’s facility in Missouri. Student Life had a liability policy with Great American, and Windermere was an additional insured on that policy. The additional insured endorsement provides that the additional insured, in this case Windermere, is only covered for “liability arising out of the ownership, maintenance or use of that portion of the premises leased to Great American contends that Windermere is not entitled to coverage for Kaylee Richards’s injuries because Windermere did not “lease” the Edge to Student Life because the Edge was not specifically mentioned in Student Life’s written agreement with Windermere.

The first issue the court skipped was the policy that Student Life had, was restrictive and had minimal coverage. It had a requirement that all claims had to be made in one year. This may not be bad, but if the statute of limitations for the type of injury is two years or three, you may not have coverage for a claim because you did not know you had one until after the time period had run.

Student Life is the named insured on a Commercial General Liability policy with Great American. The policy requires that all requests for medical payments be made within one year of the accident that gives rise to the insurance claim. Also, when there is other valid and collectible excess insurance coverage, the Great American policy provides that Great American will have no duty to defend its insured against a claim for damages.

On top of the claim limitation period, the coverage was solely excess coverage. Meaning the coverage did on top of any other coverage the insured had and had no duty to defend or pay for attorneys. It only had to pay for a claim after the
limits of the underlying policy were exhausted. No underlying policy was ever mentioned in the case so it is unknown if one existed.

If this is the only policy, Student Life purchased, they bought the wrong one!

Another issue was whether the student life policy would provide coverage for employees of Windermere that were sued based on the accident.

This suit was brought by the Student Life insurance company, Great American Alliance Insurance Company, asking the court to tell Student Life it was not going to pay or defend any of the claims brought by the injured camper against Windermere.

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

The court first looked at whether the additional insured certificate was ambiguous. If so, then the court had to interpret the ambiguity under Missouri’s law.

An ambiguity is an uncertainty in the meaning of the policy.

If an ambiguity exists, the policy language will be construed against the insurer. Mendota, “‘An ambiguity exists when there is
duplicity, indistinctness, or uncertainty in the meaning of the language of the policy.'” “‘To test whether the language used in the policy is ambiguous, the language is considered in the light in which it would normally be understood by the lay person who bought and paid for the policy.'” Whether an insurance policy is ambiguous is a question of law.”

The burden of proving there is coverage falls on the party seeking it, in this case, Windermere. An ambiguity exists if there are different interpretations of the language in the policy. There are two types of Ambiguities, Latent and patent.

A policy is ambiguous if it is “fairly open to different interpretations” because it contains “duplicity, indistinctness, or uncertainty of meaning.” Importantly, there are two types of ambiguities in the law: patent and latent. “A patent ambiguity is detected from the face of the document, whereas a latent ambiguity is found ‘when the particular words of a document apply equally well to two different objects or some external circumstances make their meaning uncertain.'”

Here the court found that a patent ambiguity existed.

For these reasons, a patent ambiguity exists. The disputed phrase not only should be interpreted in favor of the Defendants, but the Defendants’ interpretation is arguably the only one that would make sense to an ordinary person under these circumstances.

The court also found a latent ambiguity existed in the certificate of insurance.

A latent ambiguity exists when a contract “on its face appears clear and unambiguous, but some collateral matter makes the meaning
uncertain.” Id. In other words, an ambiguity is “latent if language, which is plain on its face, becomes uncertain upon application.”

If an ambiguity is found in an insurance policy, the ambiguity is construed against the insurance company. “In the
alternative, it is well-settled that an ambiguity within an insurance policy must be construed against the insurer.”

Consequently, the court ruled on this issue, that there was coverage for Windermere from the Student Life Policy. However, the court found against Student Life and Windermere on the other issues.

Windermere requested coverage for defending its employees, which the court denied.

Great American argues that no coverage exists for Brown or any other Windermere employee because the Additional Insured Endorsement does not provide additional insured status and/or coverage for an additional insured’s employees. Brown is not identified anywhere in Student Life’s Great American policy nor is she listed as an Additional Insured on a Certificate of Liability. Therefore, any coverage for Brown would necessarily derive from her status as Windermere’s employee, and employees are not covered as insureds by the Additional Insured Endorsement.

The court agreed with Great American that no coverage was described in the certificate of insurance.

The next issue was, whether or not there was a duty to defend. A duty to defend is to pay the cost of the lawsuit; attorney fees, expert witness fees, etc.

Under Missouri law, the duty to defend “arises whenever there is a potential or possible liability to pay based on the facts at the outset of the case and is not dependent on the probable liability to pay based on the facts ascertained through trial.”

Because there was no coverage for the Windermere employees, there was no duty to defend them either. A duty to defend must be specifically identified in the policy. In this case the policy specifically stated, there was no duty to defend.

The last issue was whether medical expenses of the injured camper were owed by Great American to Windermere. Again, since the policy specifically stated there was no coverage for medical expenses this was denied. The court also found the
requirement under the policy to make a claim for medical expenses had to be done within one year, and that time had lapsed; therefore, no medical expenses were owed by the Student Life Policy with Great American.

The decision was split, however, in reality; Windermere got nothing from the decision. If Windermere lost its suit or exhausted its own liability insurance policy protection, it could, then see money from the Student Life policy with Great American, but no other coverage was owed by Great American. However, that meant the camper was going to have to win millions probably to exhaust the Windermere policy and Windermere or its insurance company was going to foot the bill with no help from the policy under the certificate of insurance.

So Now What?

This is a classic case were not knowing or checking what happens when you receive an additional insured certificate ends up costing you more money than not having one.

The underlying policy by the group coming into the camp was crap. On top of that it had major restrictions on when it would pay. Add to those issues the certificate of insurance was badly written and the company receiving the additional insured certificate received a worthless piece of paper. On top of that it cost them a lot of money I’m guessing to sue to find out they were not going to get anything from the policy.

1. Issue a request for a Certificate of Insurance in a contract or the contract. Set forth in the contract everything you must have and the type of insurance policy that must be underlying the certificate of insurance.

2. Request a copy of the insurance policy be delivered with the certificate of insurance. Again, if the policy is crap, you are getting crap.

3. Make sure the insurance policy covers what the contract says it should cover.

4. Make sure the certificate of insurance covers what the contract says it must cover.

Just collecting certificates of insurance to put in a box or file cabinet are only killing trees. It is probably not providing you any protection as in this case.

What do you think? Leave a comment.

To Comment Click on the Heading and go to the bottom of the page.

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

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

Author: Outdoor Recreation Insurance, Risk Management and Law To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@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,

Great American Alliance Insurance Company, Plaintiff, vs. Windermere Baptist Conference Center, Inc., et al., 2017 U.S. Dist. LEXIS 103148

Posted: August 13, 2017 | Author: Recreation Law | Filed under: Challenge or Ropes Course, Insurance, Legal Case, Missouri, Zip Line | Tags: Ambiguity, Ambiguous, Camper, certificate, challenge course, church, Church Camp, coverage, declarations, denial letter, dining hall, duty to defend, endorsement, Guest, Insurance policy, insured, latent ambiguity, Lawsuit, lease, leased, liability arising, liability coverage, Liability insurance, lodge, lodging, meal, named insured, ordinary person, owes, Ropes course, space, Summary judgment, Summer Camp, tenant, zip line | Leave a comment

Great American Alliance Insurance Company, Plaintiff, vs. Windermere Baptist Conference Center, Inc., et al., 2017 U.S. Dist. LEXIS 103148

Great American Alliance Insurance Company, Plaintiff, vs. Windermere Baptist Conference Center, Inc., et al., Defendants.

No. 2:16-cv-04046-NKL

United States District Court for the Western District of Missouri, Central Division

2017 U.S. Dist. LEXIS 103148

July 5, 2017, Decided

July 5, 2017, Filed

PRIOR HISTORY: Great Am. Alliance Ins. Co. v. Windermere Baptist Conf. Ctr., Inc., 2016 U.S. Dist. LEXIS 92701 (W.D. Mo., July 18, 2016)

COUNSEL: [*1] For Great American Alliance Insurance Company, Plaintiff: John S. Sandberg, LEAD ATTORNEY, Kenneth R. Goleaner, Sandberg, Phoenix & von Gontard, PC-St. Louis, St. Louis, MO.

For Windermere Baptist Conference Center, Inc., Defendant: Amber Joy Simon, Lauren E. Tucker McCubbin, LEAD ATTORNEYS, Lisa A. Weixelman, Polsinelli PC – KCMO, Kansas City, MO.

For Kendra Brown, Defendant: Christopher P. Rackers, LEAD ATTORNEY, Kaci R Peterson, Schreimann, Rackers & Francka, LLC, Jefferson City, MO.

For Jeremy Richards, Karlee Richards, Defendants: Patrick M. Martucci, LEAD ATTORNEY, Johnson, Vorhees & Martucci – Joplin, Joplin, MO.

JUDGES: NANETTE K. LAUGHREY, United States District Judge.

OPINION BY: NANETTE K. LAUGHREY

OPINION

ORDER

This case principally concerns whether Defendants, Windermere Baptist Conference Center and Kendra Brown, have insurance coverage under a Great American policy for potential liability in a suit pending in Morgan County. In that case, damages are being sought against them for injuries sustained by Karlee Richards after she fell while zip-lining at The Edge, a ropes course at Windermere’s Conference Center. Kendra Brown was an employee of Windermere, working at the Edge at the time of the accident.

In [*2] June 2014, Karlee Richards and her Searcy Baptist Church youth group were attending a summer camp at Windermere’s Conference Center, which was sponsored by Lifeway Christian Resources of the Southern Baptist Conference, d.b.a. Student Life.¹ Student Life contracted with Windermere to hold the church camp at Windermere’s facility in Missouri. Student Life had a liability policy with Great American, and Windermere was an additional insured on that policy. The additional insured endorsement provides that the additional insured, in this case Windermere, is only covered for “liability arising out of the ownership, maintenance or use of that portion of the premises leased to [Student Life] [by Windemere].” [Doc. 35-17, p.1 (“Endorsement”)]. Great American contends that Windermere is not entitled to coverage for Kaylee Richards’s injuries because Windermere did not “lease” the Edge to Student Life because the Edge was not specifically mentioned in Student Life’s written agreement with Windermere.

1 Lifeway Christian Resources of the Southern Baptist Convention does business as Student Life. The Court refers to Lifeway and Student Life interchangeably throughout the remainder of this Order as simply, “Student Life.”

Pending before the Court is Great American’s Motion for Summary Judgment. [Doc. 34]. For the following reasons, the Motion is granted in part and denied in part.

I. Undisputed Facts²

2 Unless otherwise noted, the facts recited are those which are properly supported and undisputed.

A. The Student Life [*3] Camp at Windermere

Windermere Baptist Conference Center is a large Conference Center on the Lake of the Ozarks with over 300 acres and 126 buildings, including group lodging, a dining hall, conference space, cabins, a chapel, and a gift shop. Windermere also offers various recreational facilities and activities at its campus, including the Edge. Organizations like Student Life use Windermere’s facilities for summer church camps.

Student Life had been conducting camps at Windermere for about ten years prior to its June 2014 camp. In January 2014, Student Life and Windermere executed an Amended Conference Contract. The “Amended Conference Contract,” provides:

Amended Conference Contract

. . .

EVENT INFORMATION

Event Name: Student Life #1 ’14 (June 2-6, 2014)

Expected #: 1000

Arrive Date: Saturday, May 31, 2014

(Check in begins at 3:00 PM. Rooms may not be available until 6:00 PM. . .)

Depart Date: Saturday, June 7, 2014

Lodging Check out time is 11:00 AM. Keys must be turned in by this time. . .)

LODGING INFORMATION

Lodging Type	Start	End	Nights	Units	Cost	Total
Per Person (Student Life Extra)	5/31/14	6/2/14	2	25	$17.50	$825.00
Per Person (Student Life Extra)	6/1/14	6/2/14	1	15	$17.50	$262.50
Per Person (Student Life [*4] ’14)	6/2/14	6/5/14	4	1,000	$70.00	$70,000
						Minimum
Total for Lodging: $71,137.50	$56,910.00

You will need to provide Windermere a rooming list (names of individuals occupying each room) and a copy of your conference or retreat schedule at the time of check-in.

. . .

MEAL INFORMATION

…	Minimum
Total for Meals: $76,570.00	$61,733.00

. . .

All guests eating in the dining hall must have a meal ticket or wrist band to be

admitted into the Dining Hall.

. . .

CONFERENCE SPACE INFORMATION

Facility/Room	Start	End	Cost
…
Wilderness Creek Auditorium (1500)	6/1/14 8:00am	6/6/14 12:00pm
…
Deer Ridge Conf Rm 1 (30)	6/2/14 3:00pm	6/6/14 12:00pm
…
Total for Conference Space: $0.00

. . .

Use of conference space and facilities begins at the start time stated in the contract. Conference or facility space usage time ends at the time stated in the contract and must be empty of all guests and guest items.

. . .

ENTITY OBLIGATION

Estimated Total Payment	$147,707.50
Total Minimum Payment	$118,643.00
…
Property Damage/Abuse

The above named group will have financial responsibility for any damages and excessive wear and tear it incurs to the Windermere grounds, facilities or property to the extent that such damage or excessive wear and tear arises [*5] from the negligence or willful misconduct of the above named group. Cleanup of any facilities or grounds that are excessively dirty will be the financial responsibility of the group.

[Doc. 35-5 (“Amended Conference Contract”)].

The parties’ Amended Conference Contract does not identify every building or activity that was available to campers during Student Life’s camp at Windermere. For example, the chapel, which is made available to any group attending a camp at Windermere, is not listed. In addition, the dining hall is not specifically listed under the “Conference Space Information” heading, despite the Amended Conference Contract listing a price for meals Windermere is to provide.

In addition, it is undisputed that Windermere offered various free recreational activities to its guest campers, including those who attended the Student Life camp. Windermere also offered some special recreational activities that required an additional fee and reservations. The Edge was one such activity. The Edge, a ropes and zip-lining course, is not accessible to campers at Windermere without special scheduling, the purchase of tickets, and the execution of a “Recreational Release” form. Student Life [*6] advertised Windermere’s recreational facilities, including “The Edge,” as available for use to its campers, and it was Student Life’s expectation that these facilities would be available.

In addition to the Amended Conference Contract, Student Life also completed a Facilities Request Form, and Windermere completed a Fax Back Response Sheet. [Docs. 40-3 and 40-4]. The Fax Back Response Sheet provides:

Student Life Camp

Windermere Conference Center

Recreation:

. . .

What are some free-time options on your campus?

o Sand Volleyball, Outdoor Basketball, Tennis, Mini Golf, Disc Golf, Pool, Hiking, The Edge (low/high ropes course), Paintball, Waterfront Activities (Inflatable water park, kayak, canoe, paddle boats, fishing, etc) (See attached PDF on available Recreation Packages).

[Doc. 40-4, p. 3].

B. Great American Insurance Policy

Student Life is the named insured on a Commercial General Liability policy with Great American. The policy requires that all requests for medical payments be made within one year of the accident that gives rise to the insurance claim. [Doc. 42-2, p. 62 of 166]. Also, when there is other valid and collectible excess insurance coverage, the Great American policy provides [*7] that Great American will have no duty to defend its insured against a claim for damages. [Doc. 42-2, p. 67-68 of 166].

Because Student Life was contracting with Windermere for its event, Windermere was named as an additional insured on Student Life’s Great American policy. The Certificate of Liability Insurance was issued by Great American on May 8, 2014, and Windermere accepted. The Certificate referenced Great American’s policy issued to Student Life, Policy No.: GLP 0310189 and stated:

Event: Student Life Event Dates: May 31-June 7 and June 14-20, 2014 Windermere Conference Center is included as Additional Insured on the General Liability policy, as per endorsement #CG 82 24, ed. 12/01, and on the Automobile Liability policy, as per endorsement #CA 8518, ed. 6/09.

[Doc. 35-7 (“Certificate of Liability Insurance”)].

C. The Underlying Lawsuit

The Searcy Baptist Church youth group was one of the groups of campers that attended Student Life’s camp at Windermere in June of 2014. Karlee Richards and the rest of the Searcy youth group were scheduled to ride The Edge on June 4, 2014. They paid Windermere an additional fee for this activity. While zip-lining at The Edge that day, Richards fell [*8] and was injured. Kendra Brown, a Windermere employee, was working at the Edge at the time of the accident.

Following Karlee Richards’s accident at The Edge, her father, Jeremy Richards, both individually and as Next Friend, brought suit against Windermere and several of Windermere’s employees, including Kendra Brown. This lawsuit is currently pending in the Circuit Court of Morgan County, Missouri and seeks damages for Karlee Richards’s physical injuries sustained at The Edge.

On November 17, 2015, Windermere and Kendra Brown tendered claims to Great American for defense and indemnity of the underlying lawsuit, seeking coverage as additional insureds under Student Life’s Great American policy. [Doc. 35-15 (“Demand Letter”)]. The letter also demanded Medical Payments coverage for Karlee Richards’s medical expenses. The demand for Medical Payments coverage was made more than one year after Richards’s June 4, 2014 accident at The Edge. [Docs. 35-15 (“Demand Letter”) and 35-18 (“Feb. 4, 2016 Denial Letter”)].

Great American responded to the parties’ demand letter with a request for additional information, including information regarding Windermere’s coverage through Church Mutual Insurance [*9] Company. Windermere’s insurer, Church Mutual, was defending Windermere in the underlying lawsuit. [Doc. 35-14, p. 1 of 7 (“Dec. 17, 2015 Letter”)]. In subsequent correspondence with Great American, Windermere also stated, “Church Mutual, the insurer for ‘Windermere’ has tendered its full two million dollars in liability insurance.” [Doc. 35-14, p. 1 of 7 (“Dec. 17, 2015 Letter”)].

In its February 4, 2016 denial letter to Windermere and Brown, Great American concluded that Richards’s accident did not arise out of the ownership, maintenance, or use of the premises Windermere leased to Student Life and denied Windermere’s tender. Great American’s letter also provided that:

[E]ven if indemnity coverage did exist for Windermere and Kendra Brown under the Lifeway Policy, it is also clear that that [sic] Great American owes no defense obligation of the pending lawsuit. Your December 17, 2015 correspondence renewing the tender of defense on behalf of both Windermere and Kendra Brown makes clear that Windermere is being afforded a defense by Church Mutual and that Kendra Brown is being defended by both Church Mutual and Shelter. . . . [T]he Social Service Agency General Liability Broadening Endorsement [*10] makes clear that any coverage that did exist would be excess over all other insurance, including both the Church Mutual and Shelter policies. The “Other Insurance” provision of the Lifeway Policy makes clear that, where its coverage is excess and a defense is being provided by another carrier, Great American owes no duty to defend. Hence, Windermere’s and Kendra Brown’s tender of the defense of the pending lawsuit is denied for this additional reason.

[Doc. 35-18, p. 6 (“Feb. 4, 2016 Denial Letter”)]. Great American also denied Brown’s tender, stating that she was not an additional insured on the policy. Id.

II. Discussion

Windermere seeks coverage in the underlying Morgan County lawsuit as an additional insured under the Great American policy issued to Student Life. After denying Windermere’s tender, Great American filed suit before this Court seeking a declaratory judgment regarding its obligations under the policy. Great American now moves for summary judgment on its requested declaratory judgment that: (1) no liability coverage exists under its policy issued to Student Life for any claims asserted in the underlying lawsuit against Windermere or Windermere’s employees, including Kendra [*11] Brown; (2) Great American owes no duty to defend Windermere, Kendra Brown, or any other Windermere employees in the underlying lawsuit; and (3) no medical payments coverage exists for Karlee Richards.

A movant is entitled to summary judgment “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 a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The rule requires summary judgment to be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

A federal court sitting in diversity applies the choice-of-law rules of the state where the court sits, in this case, Missouri. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); American Guarantee Liability Ins. Co. v. U.S. Fidelity & Guaranty Co., 668 F.3d 991, 996 (8th Cir.2012). But a court need not undertake a choice-of-law inquiry unless an actual conflict of law is demonstrated. Prudential Ins. Co. of Am. v. Kamrath, 475 F.3d 920, 924 (8th Cir.2007) (citation omitted). Because the parties do not raise any actual conflict and because they do not dispute that Missouri law applies, the Court applies Missouri law.³

3 Plaintiff Great American contends no choice of law analysis is necessary because the outcome is the same under the law of the three states that could potentially apply: Missouri, Tennessee, and Alabama. Because Defendants Windermere, Brown, and the Richards contend Missouri law should apply, the Court concludes that the parties agree to the application of Missouri law.

A. Interpretation of Insurance Policies in Missouri

The interpretation [*12] of an insurance policy is a question of law to be determined by the Court. Mendota Ins. Co. v. Lawson, 456 S.W.3d 898, 903 (Mo. Ct. App. 2015). The ultimate goal of contract interpretation is to determine the intent of the parties. Bolinger v. Clarks Mut. Ins. Co., 485 S.W.3d 803, 809 (Mo. Ct. App. 2016). To determine the intent of the parties, the language in the contract is to be read according to its plain and ordinary meaning. Mendota, 456 S.W.3d at 903.

In interpreting an insurance policy, “[t]he key is whether the contract language is ambiguous or unambiguous.” Todd v. Mo. United Sch. Ins. Council, 223 S.W.3d 156, 160 (Mo. banc 2007). If an ambiguity exists, the policy language will be construed against the insurer. Mendota, 456 S.W.3d at 904. “‘An ambiguity exists when there is duplicity, indistinctness, or uncertainty in the meaning of the language of the policy.'” Fanning v. Progressive Northwestern Ins. Co., 412 S.W.3d 360, 364 (Mo. Ct. App. 2013) (quoting Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007)). “‘To test whether the language used in the policy is ambiguous, the language is considered in the light in which it would normally be understood by the lay person who bought and paid for the policy.'” Blumer v. Automobile Club Inter–Ins, 340 S.W.3d 214, 219 (Mo. Ct. App. 2011) (quoting Heringer v. Am. Family Mut. Ins. Co., 140 S.W.3d 100, 102 (Mo. Ct. App. 2004)). “Whether an insurance policy is ambiguous is a question of law.” Todd, 223 S.W.3d at 160.

“[T]he parties seeking to establish coverage under the insurance policy have the burden of proving that the claim is within the coverage afforded by the policy . . . even though they are denominated as defendants in a declaratory judgment action.” State Farm Fire & Cas. Co. v. D.T.S., 867 S.W.2d 642 (Mo. Ct. App. 1993).

B. Liability Coverage [*13] for Windermere as Additional Insured

The Great American policy’s declarations page lists Student Life as the named insured. Windermere is listed as an additional Insured as follows:

5. AUTOMATIC ADDITIONAL INSURED(S)

a. Additional Insured — Manager or Lessor of Premises

(1) This policy is amended to include as an insured any person or organization (hereinafter called Additional Insured) from whom you lease or rent property and which requires you to add such person or organization as an Additional Insured

***

(2) With respect to the insurance afforded the Additional Insured identified in Paragraph A.(1) of this endorsement, the following additional provisions apply:

(a) This insurance applies only to liability arising out of the ownership, maintenance or use of that portion of the premises leased to [Student Life].

[Doc. 35-17, p. 1 (“Endorsement”)]

Great American contends that the reference in Section 5.a.(2)(a) to “premises leased to you” refers to the specific places identified in the Amended Conference Contract between Windermere and Student Life. According to Great American, because the Edge is not listed, Windermere’s potential liability for the accident at the Edge is not covered. In contrast, Windermere [*14] argues that “premises lease” includes all the places on its property that Student Life campers were authorized to access, including the Edge.

1. Interpretation of Section 5.a.(2)(a)⁴

4 Defendants Brown and the Richards argue that the limitation of liability in Section 5.a.(2)(a) does not apply to Windermere because that section refers to Paragraph A.(1), and Windermere is identified as an Additional Insured by Paragraph a.(1). In other words, these Defendants reason that the parties must be referring to something other than the preceding paragraph a.(1) because capital A.(1) rather than lower case a.(1) was used. Defendants further reason that the only “Paragraph A.(1)” in the endorsement is located in Section 7A.(1) which limits liability to $300,000 for personal property and building damage rented to an additional insured. The Court rejects this argument because the reference to “A” instead of “a” is clearly a minor typographical error, and the Defendants’ strained interpretation of Section 7 in this context makes no sense. In Mendota Insurance Company v. Ware, 348 S.W.3d 68 (Mo. Ct. App. 2011), the Missouri Court of Appeals rejected a similar argument based on a typographical error because the “policy’s intended meaning, would be apparent to an ordinary reader.” Id. at 73. In the context of the Great American policy, it would not be reasonable for an ordinary reader to think that the use of A.(1), immediately after a section labeled a.(1), would be referring to 7A.(1) when 7A.(1) has nothing to do with identifying an additional insured and is not located in close proximity to the paragraph that does deal with the additional insured.

Whether an insurance provision is ambiguous is a question of law for the Court. General Am. Life Ins. Co. v. Barrett, 847 S.W.2d 125, 131 (Mo. Ct. App. 1993). A policy is ambiguous if it is “fairly open to different interpretations” because it contains “duplicity, indistinctness, or uncertainty of meaning.” Id. Importantly, there are two types of ambiguities in the law: patent and latent. Cent. United Life Ins. Co. v. Huff, 358 S.W.3d 88, 95 (Mo. Ct. App. 2011). “A patent ambiguity is detected from the face of the document, whereas a latent ambiguity is found ‘when the particular words of a document apply equally well to two different objects or some external circumstances make their meaning uncertain.'” Id. (quoting Jake C. Byers, Inc. v. J.B.C. Invs., 834 S.W.2d 806, 816 (Mo. Ct. App. 1992)).

a. Patent Ambiguity

The key phrase that this Court must interpret and apply is “portion of the premises leased to [Student Life].” “The words of a policy must be given their plain and ordinary meaning consistent with the reasonable expectation and objectives of the parties, unless it is obvious that a technical meaning was intended.” Bolinger v. Clarks Mut. Ins. Co., 485 S.W.3d 803, 809 (Mo. Ct. App. 2016). (internal quotation marks removed). Counsel for Great American argues that the term “lease” is understood by everyone [*15] to be a premise over which one has exclusive or near exclusive control. [Oral Argument Transcript, p. 3]. Therefore, the word “lease” would only cover the property over which Student Life had exclusive control by the terms of the Amended Conference Contract. In contrast, Windermere effectively argues that all of the documents surrounding the formation of the insurance policy demonstrate that an ordinary person would not intend the technical meaning of the term “lease,” i.e. exclusive possession, but instead, would expect it to cover all of the Windermere property to which Student Life campers had authorized access.

Under Missouri law, a lease gives exclusive⁵ use of property for a determined period of time to the lessee. Chubb Group of Ins. Cos. v. C.F. Murphy & Associates, Inc., 656 S.W.2d 766, 777 (Mo. Ct. App. 1983). The term “lease” gives rise to a landlord-tenant relationship, whereby the tenant has “exclusive possession of the premises as against all the world,” including the landlord. Santa Fe Trail Neighborhood Redevelopment Corp. v. W.F. Coen & Co., 154 S.W.3d 432, 439 (Mo. Ct. App. 2005) (internal quotation marks and citations removed). In contrast, “[a] license is only a privilege to enter certain premises for a specific purpose. Kimack v. Adams, 930 S.W.2d 505, 507 (Mo. Ct. App. 1996). The difference between a lease and a license is technical and difficult to determine. Santa Fe, 154 S.W.3d at 439.

5 Great American did not cite to a case that says “near exclusive” possession is enough, and the Court has found no such statement in Missouri law.

When there is a conflict between the technical definition [*16] of a term in a policy and what a reasonable person would understand, the lay definition controls unless it is obvious that a technical definition was intended. Mansion Hills Condo. Ass’n v. Am. Fam. Mut. Ins. Co., 62 S.W.3d 633, 638 (Mo. Ct. App. 2001). “To determine the [lay definition] of a term, courts will consult standard English language dictionaries.” Id. Merriam Webster’s New College Dictionary defines “leased” as “property occupied or used under the terms of a lease.” Webster’s II New College Dictionary (1995). “Lease” is defined as “a contract granting occupation or use of property during a certain period in exchange for a specified rent.” Id. “Premises” is defined as “land and the buildings on it.” Id. Those definitions do not indicate possession is exclusive.

In this context, did the parties intend the phrase “premises leased to you” to have a technical meaning–i.e. the formation of a landlord-tenant relationship between Windermere and Student Life whereby Student Life would have exclusive control over the property listed in the Amended Conference Contract, even as to Windermere? The Certificate of Insurance⁶ suggests otherwise. [Doc. 35-7]. It states:

Event: Student Life Event Dates: May 31-June 7 and June 14-20, 2014 Windermere Conference Center is included as [*17] Additional Insured on the General Liability policy, as per endorsement #CG 82 24, ed. 12/01, and on the Automobile Liability policy, as per endorsement #CA 8518, ed. 6/09.

This language does not suggest that the parties intended a landlord-tenant relationship being created between Student Life and Windermere. Rather, it suggests that Great American knew it was providing liability insurance to Windermere for an event — the camp — being held by Student Life on the Windermere campus. At a minimum, there is a conflict between the technical meaning of the word lease and what an ordinary person would understand under these circumstances, taking into account the dictionary definitions. In those circumstances, the technical definition does not control. See Mansion Hills Condo. Ass’n v. Am. Fam. Mut. Ins. Co., 62 S.W.3d 633, 638 (Mo. Ct. App. 2001).

6 Because the Certificate of Liability was issued to Windermere for the purpose of adding Windermere as an additional insured, “as per endorsement #CG 82 24 ed. 12/01,” the Certificate arguably became a part of the insurance contract. See Corder v. Morgan Roofing Co., 355 Mo. 127, 195 S.W.2d 441 (Mo. 1946) (finding certificate of insurance that doubled liability coverage, added insurance for property damage, and certified complete coverage of all operations in connection with the insured’s construction contract was part of the insurance contract); see also, Section 1.5.a.(1) of this endorsement:

This policy is amended to include as an insured any person or organization (hereinafter called Additional Insured) from whom you lease or rent property and which requires you to add such person or organization as an Additional Insured on this policy.

Further, State ex rel. State Highway Commission v. Johnson, 592 S.W.2d 854, 857-8 (Mo. Ct. App. 1979), says that a court may consider the circumstances under which the contract was made. These circumstances, as discussed below in the section on latent ambiguity, also support [*18] a finding that an ordinary person would expect to be covered for camp activities, not just for dorm rooms and conference space.

b. Latent Ambiguity

Even if there were no patent ambiguity, the Court can look at extrinsic evidence to determine if there is a latent ambiguity.⁷ Royal Banks of Mo. v. Fridkin, 819 S.W.2d 359, 362 (Mo. banc 1991) (“A latent ambiguity . . . must be developed by extrinsic evidence.”).

7 Although Defendants do not use the term latent ambiguity, this appears to be the crux of Defendants’ argument: that even if the “premises leased” term is not ambiguous on its face, it is ambiguous when applied to the facts at hand.

A latent ambiguity exists when a contract “on its face appears clear and unambiguous, but some collateral matter makes the meaning uncertain.” Id. In other words, an ambiguity is “latent if language, which is plain on its face, becomes uncertain upon application.” Gen. Am. Life Ins. Co. v. Barrett, 847 S.W.2d 125, 131 (Mo. Ct. App. 1993). For example, “[a] latent ambiguity may be one in which the description of the property is clear upon the face of the instrument, but it turns out that there is more than one estate to which the description applies; or it may be one where the property is imperfectly or in some respects erroneously described, so as not to refer with precision [*19] to any particular object.” Muilenburg, Inc. v. Cherokee Rose Design & Build, LLC, 250 S.W.3d 848, 854-55 (Mo. Ct. App. 2008) (quoting Prestigiacamo v. Am. Equitable Assur. Co. of N.Y., 240 Mo. App. 839, 221 S.W.2d 217, 221 (1949) (internal quotation marks omitted)). The case of Royal Banks of Mo. v. Fridkin, 819 S.W.2d 359, 362 (Mo. banc 1991) provides another example. In Royal Banks, the Missouri Supreme Court found a latent ambiguity in an otherwise unambiguous contract where the contract described a $10,000.00 promissory note but where no $10,000.00 promissory note actually existed. Id. Looking to extrinsic evidence, the court concluded, “Evidence of a promissory note that fits the description in the guaranty in all respects except for principal amount, coupled with the fact that a $10,000.00 note did not exist, is a collateral matter that renders the meaning of the guaranty uncertain. Once it became apparent that there was no $10,000.00 note but instead only a $50,000.00 note, a latent ambiguity existed.” Id.

Although parol evidence may not ordinarily be considered to create an ambiguity, the Court may consider such evidence to demonstrate the existence of collateral matters that create a latent ambiguity. Royal Banks of Mo. v. Fridkin, 819 S.W.2d 359, 362 (Mo. banc. 1991) (“A latent ambiguity is not apparent on the face of the writing and therefore, must be developed by extrinsic evidence.”). Therefore, the Court may consider extrinsic evidence to determine if a latent ambiguity exists. In this case, [*20] in the absence of a definition of “premises leased,” the surrounding facts suggest a latent ambiguity about what was intended by this term.

The plain language of the Amended Conference Contract alludes to Student Life’s use of and access to many more properties than merely conference space and lodging units during its event. For example, the Contract’s plain language contemplates Student Life’s use of a dining hall⁸ because the meals they contracted for were to be served there. Yet, the Contract does not specifically list the dining hall. Likewise, the Contract does not mention the chapel, despite Windermere’s title as Windermere Baptist Conference Center and its practice of contracting with church groups to conduct summer church camps. At a minimum, a jury could find the parties intended that campers would have access to the chapel, even though it was not listed. Finally, the Contract, like the Certificate of Insurance, refers to an “Event,” and Great American’s interpretation of the Contract considers only part of what was going to occur at that event.

8 The Contract’s “Meal Information” section provides start and end times for specific meals and alludes to Student Life’s use of the Dining Hall, stating, “All guests eating in the dining hall must have a meal ticket or wrist band to be admitted into the Dining Hall.” [Doc. 35-5, p. 2].

The Court also considers the parties’ Fax Back Response Sheet. [Doc. 40-4]. This document confirms that the purpose of the parties’ [*21] agreement was to host an event, referred to by the Sheet as “Student Life Camp.” [Doc. 40-4]. In addition, the Sheet shows the parties’ understanding that Student Life’s campers would have access to not only conference and dorm space, but also a church for worship, recreational fields, a gymnasium, hiking trails, a body of water for “waterfront activities,” and as is relevant in this case, The Edge ropes course:

What are some free-time options on your campus?

o Sand Volleyball, Outdoor Basketball, Tennis, Mini Golf, Disc Golf, Pool, Hiking, The Edge (low/high ropes course), Paintball, Waterfront Activities (Inflatable water park, kayak, canoe, paddle boats, fishing, etc) . . .

See generally [Doc. 40-4 and p. 3 (emphasis added)]. Because Student Life was contracting with Windermere for an event–to host a camp complete with various camp activities and facilities–the Court cannot find that a reasonable insured would have intended the term, “premises leased,” to limit its coverage only to liability arising out of conference rooms and lodging units.

There is no dispute that Student Life camper, Karlee Richards, was authorized to access The Edge at the time of her accident. Based on the Fax [*22] Back Response Sheet, alone, which suggests that Student Life would expect to have access to The Edge during its event, a reasonable juror could conclude that The Edge was a “portion of the premises leased,” which would entitle Windermere to coverage as an additional insured for its liability to Richards. Therefore, summary judgment must be denied.⁹

9 Although Defendants did not file their own motions for summary judgment, Defendants ask the Court to grant summary judgment in their favor, citing Fed. R. Civ. P. 56(f)(1), which provides: “After giving notice and a reasonable time to respond, the court may: (1) grant summary judgment for a nonmovant.” [Doc. 53]. Granting summary judgment for the non-movants under this rule is discretionary. Due to the fact that the focus of this briefing has been on Great American’s request for summary judgment, the Court declines to exercise its discretion under this provision. However, the Court will permit Defendants to file their own motions for summary judgment within 20 days of the date of this Order, not inconsistent with this order as to the issues ruled against them.

In the alternative, it is well-settled that an ambiguity within an insurance policy must be construed against the insurer. Krombach v. Mayflower Ins. Co., Ltd., 827 S.W.2d 208, 210 (Mo. banc 1992). As already discussed, an ambiguity exists as to what the parties intended “premises leased” to refer to. Therefore, construing this ambiguous term against Great American requires the Court to apply the meaning “which would be attached by an ordinary person of average understanding if purchasing insurance.” Id. An ordinary insured could reasonably understand this phrase to refer to the areas to which Student Life had access during its event at Windermere. Therefore, Great American’s Motion for Summary Judgement must be denied on this issue.

Great American’s cited authorities do not require a different outcome. First, the coverage disputes in many of Great American’s authorities center on how to interpret “arising out of,” [*23] without any dispute as to what properties the parties understood to be the “leased premises” covered by the additional insured endorsement at issue. In contrast to the facts before this Court, each of these cases involved an undisputed lease contract between a landlord and tenant, rather than an event contract between two organizations, and there was no dispute or ambiguity surrounding what property was meant by the “premises leased” or a similar term. See, e.g., Belz Park Place v. P.F. Chang’s China Bistro, Inc., 2015 WL 11145058 (W.D. Tenn. Mar. 23, 2015) (within context of landlord-tenant relationship, involving a lease contract, and no dispute about the leased premises); Liberty Mut. Ins. Co. v. Michigan Mut. Ins. Co., 891 N.E.2d 99 (Ind. Ct. App. 2008) (same); Northbrook Ins. Co. v. American States Ins. Co., 495 N.W.2d 450 (Minn. Ct. App. 1993) (same); Hilton Hotels Corp v. Employers Ins. of Wausau, 629 So.2d 1064 (Fla. Dist. Ct. App. 1994) (same); SFH, Inc. v. Millard Refrigerated Svcs., Inc., 339 F.3d 738 (8th Cir. 2003) (same).

For example, in U.S. Fidelity & Guar. v. Drazic, 877 S.W.2d 140 (Mo. Ct. App. 1994). the Missouri Court of Appeals considered additional insured coverage within the context of a landlord-tenant relationship and an unambiguous lease contract. The Drazics leased a portion of their basement to the Brewers, and the Drazics were named as additional insureds under the Brewers’ liability insurance policy. Id. at 141. After the Brewers’ employee fell in a parking lot near the Drazics’ building and injured herself, she filed suit alleging that the Drazics negligently discharged steam from their dry cleaning business, which formed ice on the parking area [*24] causing her fall. Id. at 141-42. The policy’s additional insured endorsement provided coverage to the Drazics as additional insureds “but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises designated below leased to the named insured.” Id. at 142-43 (emphasis added). The court considered the parties’ lease contract, which identified the premises leased as a “designated portion of a commercial building known and numbered as 418 Manchester Road, Ballwin, Missouri 63011, plus the area adjacent to the entrance of Brewer’s Quilt Shop for installation of their office.” Id. at 142. The court reasoned that the endorsement’s “plain language contemplated coverage for the Drazics as additional insureds for liability arising out of incidents taking place in that part of the building leased to the Brewers pursuant to the lease contract” and that there was no coverage because the accident at issue “took place on a parking area outside the building.” Id. at 143.

In contrast to Drazic, the Great American policy does not limit coverage to the “premises designated below” accompanied by a lease that specifically identifies an address or description of the area unambiguously covered by this [*25] clause. Also unlike the facts before this Court, there is no dispute or uncertainty in Drazic about what is meant by the “premises [leased].”

In addition, the Court rejects Great American’s reliance on Drazic for the separate proposition that “the purpose of additional insured endorsements obtained in a landlord-tenant context is to provide landlords protection from vicarious liability due to a tenant‘s action which takes place on the premises that the tenant has leased.” [Doc. 35, p. 16 (quoting Drazic, 877 S.W.2d at 143)]. Despite articulating this theory, the Drazic court did not resolve the coverage question based on vicarious liability: “The injury to Leary occurred due to alleged negligence on the part of the landlords’ business . . . and it did not occur on the premises leased to the [tenants].” Drazic, 877 S.W.2d at 143 (emphasis added). Furthermore, to the extent Great American contends that additional insured coverage is limited to acts for which Windermere is vicariously liable, the Court disagrees. The case from which this theory originated involved an insurance contract materially different from the one at issue here because the policy language in that case specifically limited coverage for additional insureds “against [*26] vicarious liability for the acts of the named insured.” See Hormel Foods Corp. v. Northbrook Property and Cas. Ins. Co., 938 F. Supp. 555, 558-560 (D. Minn. 1996) (quoting Harbor Ins. Co. v. Lewis, 562 F. Supp. 800, 802 (E.D. Pa. 1983) and explaining the origins and inapplicability of this theory). In contrast, coverage under the Great American policy cannot be said to turn on “vicarious liability” because the policy provision does not use this language.

As for other cases cited by Great American, these cases are distinguishable because they involve starkly different contract language than the term, “premises leased,” which this Court has found to be ambiguous. See, e.g., Lancaster v. Ferrell Paving, Inc., 397 S.W.3d 606 (Tenn. Ct. App. 2012) (involving different endorsement language: “liability arising out of your ongoing operations performed for the [additional] insured”) (emphasis added). Finally, Great American’s reliance on contract cases outside of the insurance context is misplaced because these cases also interpret contract provisions that are unlike the policy language at issue here. See, e.g., Once Upon a Time, LLC v. Chappelle Properties, LLC, 209 So. 3d 1094, 2016 WL 3031347 (Ala. 2016) (applying Alabama law to an indemnity agreement that did not contain the language “arising out of” or “premises leased” and did not involve insurance policy); Union Realty Co., Ltd. v. Family Dollar Stores of Tennessee, Inc., 255 S.W.3d 586 (Tenn. Ct. App. 2008) (interpreting contract language regarding the landlord’s and tenant’s obligations to procure insurance but no interpretation of insurance policy language at [*27] issue); Pilla v. Tom-Boy, Inc., 756 S.W.2d 638 (Mo. Ct. App. 1988) (interpreting indemnity provision in a lease that did not contain the language “arising out of” outside of insurance context and no dispute surrounding what constituted the leased premises).

Finally, the Court rejects Great American’s separate argument that whether a tenant has “shared” versus “exclusive” use of an area controls whether that area is part of the “premises leased” covered by an insurance endorsement. For example, in Colony Ins. Co. v. Pinewoods Enterprises, Inc., 29 F. Supp. 2d 1079 (E.D. Mo. 1998), a district court found insurance coverage for liability arising out of an area shared between the additional insured and other parties. In Colony, Bledsoe and Pinewoods entered a leasing contract in which Bledsoe (the lessee) leased portions of Pinewood’s campgrounds for a concert. Id. at 1081. Pinewoods was named as an additional insured under Bledsoe’s general liability policy with Colony Insurance. Id. During the concert, a rain storm caused many of the concert goers to take shelter on and under a deck attached to a lodge at the campground. Id. The lodge’s deck collapsed, injuring numerous concertgoers. Id. At issue was whether Colony Insurance’s coverage of Pinewoods as an additional insured extended to this accident. Id.

The court considered both the insurance [*28] policy endorsement and the parties’ lease contract. The endorsement provided additional insured coverage “but only with respect to liability arising out of your [Bledsoe’s] operations or premises owned by or rented to you.” Id. at 1082. The leasing contract specifically provided that Bledsoe “shall have the exclusive use of the Pinewoods Park” for a specific time period with the exception of the Lodge area. Id. at 1081-82. The contract also provided:

(5) LESSEE [Bledsoe], its customers, guests and invitees will share the Lodge area and facilities, i.e. store, gift shop, bait and tackle area . . . with the fishermen and permanent guests and any campers reserved prior to June 10, 1995.

Id. at 1082. The court concluded that Bledsoe leased the lodge area because the contract “specifically (albeit not exclusively) lease[d] the lodge area to Bledsoe,” and the endorsement provided that coverage extended to “the premises owned by or rented to you.” Id. at 1083 (emphasis added). The court concluded that “Colony’s additional insured endorsement extend[ed] coverage to Pinewoods for any liability arising out of the collapse of the lodge’s deck because the lodge was part of the premises leased to Bledsoe.” Id. In contrast to Great American’s contention that exclusivity [*29] is required, the Colony court still found the lodge premises to be “rented to” Bledsoe for purposes of additional insured coverage, despite the fact that the parties’ lease agreement provided that Bledsoe would “share” the lodge area premises at issue “with the fishermen and permanent guests and any campers.” Id. (emphasis added).

C. Liability Coverage for Kendra Brown or Other Windermere Employees

Great American also moves for summary judgment on the issue of coverage for Kendra Brown, Windermere’s employee. Great American argues that no coverage exists for Brown or any other Windermere employee because the Additional Insured Endorsement does not provide additional insured status and/or coverage for an additional insured’s employees. Brown is not identified anywhere in Student Life’s Great American policy nor is she listed as an Additional Insured on a Certificate of Liability. Therefore, any coverage for Brown would necessarily derive from her status as Windermere’s employee, and employees are not covered as insureds by the Additional Insured Endorsement.

Brown does not dispute that the Additional Insured Endorsement fails to provide coverage for an additional insured’s employees. Instead, [*30] Brown argues that Windermere should be considered a “Named Insured,” which in turn, makes the provisions applicable to “Named Insureds” also applicable to Windermere, including the provision that expands coverage for “Named Insureds” to their employees. The Court rejects this argument as based on an unreasonable interpretation of the policy.

Brown contends that the policy does not define “Named Insured,” and thus, it must be given the meaning that would be attached by an ordinary person. Brown reasons that an ordinary person would define “Named Insured” as a person or entity that is actually named as an insured. In turn, Brown says, because the Certificate of Liability names Windermere as an additional insured, Windermere must be a “Named Insured.” Brown next points to the following provision:

Throughout this Policy the words “you” and “your” refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a named insured under this Policy.

The word “insured” means any person or organization qualifying as such under

SECTION II — WHO IS AN INSURED.

***

[Doc. 42-2, p. 65 of 166 (“CGL Policy”)]. Brown contends that because she has established that Windermere [*31] is a “Named Insured,” “you” and “your” throughout the policy must also refer to Windermere. Next, Brown points to Section II of the policy:

SECTION II — WHO IS AN INSURED

2. Each of the following is also an Insured:

a. Your . . . “employees,” . . . but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business.

[Doc. 42-2, p. 65 of 166 (“CGL Policy”)]. Brown argues that if the Court accepts her contention as true that Windermere is a “Named Insured,” then “your” refers to Windermere, which means that Brown “is also an Insured” as “[y]our [Windermere’s] ’employee,'” according to Section II.2.a.

Brown’s argument fails because it is based on an unreasonable interpretation that Windermere is somehow a “Named Insured,” a status unsupported by the policy’s clear language.¹⁰ First, the policy distinguishes between mere “insureds” and those insureds that are “Named Insureds.” Compare “The word ‘insured’ means any person or organization qualifying as such under SECTION II — WHO IS AN INSURED” with “Throughout this Policy the words ‘you’ and ‘your’ refer to the Named Insured shown in the Declarations, and any other person or organization qualifying [*32] as a named insured under this Policy.” [Doc. 42-2, p. 65 of 166 (“CGL Policy”)]. The fact that the policy differentiates between the two statuses shows that they are different terms, despite Brown’s contention that all insureds named are “Named Insureds.”

10 Furthermore, even if the Court accepted Brown’s contention that Windermere, an Additional Insured, was in fact, a Named Insured, Brown still has not shown that she is entitled to coverage under the policy as a Windermere employee because she has not alleged any facts or argument that her liability to Richards arose from “acts within the scope of [her] employment . . . or while performing duties related to the conduct of [Windermere’s] business.” Section II.(2).a.; [Doc. 42-2, p. 65 of 166 (“CGL Policy”)].

Furthermore, the policy’s plain language identifies which insureds are “Named Insureds.” First, the top of the policy’s Declarations page states:

NAMED INSURED LIFEWAY CHRISTIAN RESOURCES OF THE SOUTHERN BAPTIST CONVENTION

[Doc. 42-2, p. 29 of 166]. Therefore, because Student Life is “shown in the Declarations,” it is a “Named Insured.” The policy also includes a Named Insured Endorsement, which amends the Declarations by providing, “It is agreed that the Named Insured shown in the Declarations is amended to read as follows.” [Doc. 42-2, p. 41 of 166]. This statement is followed by a list of various organizations’ names related to Lifeway, which the endorsement provides are also included as Named Insureds. Id. Accordingly, it is reasonable to conclude that these organizations constitute “any other . . . organization qualifying as a named insured under this Policy” and therefore are also “Named Insureds.” [Doc. 42-2, p. 65 of 166 (“CGL [*33] Policy”)]. Based on the policy’s plain language, an ordinary person would understand “Named Insured” to refer to those insureds identified on the Declarations Page next to “NAMED INSURED” and those insureds identified in the Named Insured Endorsement. To interpret the policy to mean that anyone named as an insured, including those named as Additional Insureds, were also entitled to the same expansive level of coverage as the “Named Insureds” would be unreasonable.

In contrast to those entities that are clearly designated as “Named Insureds,” Windermere is not listed as a Named Insured on either the Declarations page or on the endorsement adding Named Insureds to the Declarations page. Instead, the policy’s only reference to Windermere is located in the Certificate of Liability it was issued prior to Student Life’s 2014 camp, which included it as an “Additional Insured,” providing:

Windermere Conference Center is included as Additional Insured on the General Liability policy, as per endorsement #CG 82 24, ed. 12/01, and on the Automobile Liability policy, as per endorsement #CA 8518, ed. 6/09.

[Doc. 35-7 (“Certificate of Liability Insurance”) (emphasis added)]. The Additional Insured Endorsement [*34] provides that it “is added to SECTION II — WHO IS AN INSURED, 5. AUTOMATIC ADDITIONAL INSURED(S).” [Doc. 35-17, p.1 (“Endorsement”).] Had Great American intended to make Windermere a “Named Insured,” it could have identified it as a “Named Insured” within the Certificate of Liability, or it could have provided that Windermere be added to the Named Insured Endorsement, rather than merely “Section II — Who is an Insured.” It did neither. For these reasons, an ordinary person would understand Windermere to be an “insured,” not a “Named Insured,” and thus, the words “you” and “your” throughout the policy do not refer to Windermere. Accordingly, the provision that expands coverage for “Named Insureds” to cover their employees as insureds does not apply to Windermere. Because Brown is not an insured under the policy and therefore not entitled to coverage, summary judgment is granted in favor of Great American on this point.

D. Duty to Defend

Great American also contends that it owes no duty to defend Windermere or Brown and it should be granted summary judgment on this claim. Under Missouri law, the duty to defend “arises whenever there is a potential or possible liability to pay based on [*35] the facts at the outset of the case and is not dependent on the probable liability to pay based on the facts ascertained through trial.” Columbia Cas. Co. v. HIAR Holding, L.L.C., 411 S.W.3d 258, 265 n.10 (Mo. 2013) (internal quotation marks removed). Because the Court has already found that Brown and other Windermere employees are not insureds under Great American’s policy and thus, not entitled to coverage, it follows that Great American has no duty to defend Brown.¹¹

11 This rationale was also articulated in Great American’s denial letter, which provided:

First, as to Kendra Brown, she is not listed as an additional insured on the Certificate of Liability Insurance, nor is there any indication on the [Certificate] that additional insured status is to be afforded to employees of Windermere. Finally, there is nothing in the specific form referenced on the Certificate . . . nor anywhere else in the Lifeway Policy, that affords additional insured status to Kendra Brown or any other Windermere employee. . . . Kendra Brown is simply not an additional insured under the Lifeway Policy such that Great American is denying the tender made on behalf of Kendra Brown.

[Doc. 35-18, p. 5-6 of 12 (“Feb. 4, 2016 Denial Letter”)].

As to whether Great American owes a duty to defend Windermere, the Endorsement makes clear that any coverage for Windermere as an additional insured would be excess, and the policy does not afford [*36] a defense when (1) its coverage is excess and (2) when the insured is being provided a defense by another carrier.¹² Under Missouri law, “‘an insurer’s duty to defend is purely contractual.'” Markel Am. Ins. Co. v. Unnerstall, 2009 U.S. Dist. LEXIS 3430, 2009 WL 57451 at *4 (E.D. Mo. 2009) (quoting Crown Ctr. Redevelopment Corp. v. Occidental Fire, 716 S.W.2d 348 (Mo. Ct. App. 1986)). “If there is no contract to defend, there is no duty to defend.” Id. In relevant part, the Endorsement provides:

5. AUTOMATIC ADDITIONAL INSURED(S)

a. Additional Insured — Manager or Lessor of Premises

***

(2) With respect to the insurance afforded the Additional Insured identified in Paragraph A.(1) of this endorsement, the following additional provisions apply:

***

(d) Coverage provided herein is excess over any other valid and collectible insurance available to the Additional Insured whether the other insurance is primary, excess, contingent or on any other basis unless a written contractual arrangement specifically requires this insurance to be primary.

12 This rationale was also articulated in Great American’s denial letter, which provided:

[E]ven if indemnity coverage did exist for Windermere and Kendra Brown under the Lifeway Policy, it is also clear that that [sic] Great American owes no defense obligation of the pending lawsuit. Your December 17, 2015 correspondence renewing the tender of defense on behalf of both Windermere and Kendra Brown makes clear that Windermere is being [*37] afforded a defense by Church Mutual and that Kendra Brown is being defended by both Church Mutual and Shelter. . . . [T]he Social Service Agency General Liability Broadening Endorsement makes clear that any coverage that did exist would be excess over all other insurance, including both the Church Mutual and Shelter policies. The “Other Insurance” provision of the Lifeway Policy makes clear that, where its coverage is excess and a defense is being provided by another carrier, Great American owes no duty to defend. Hence, Windermere’s and Kendra Brown’s tender of the defense of the pending lawsuit is denied for this additional reason.

[Doc. 35-18, p. 6 (“Feb. 4, 2016 Denial Letter”)].

The Additional Insured Endorsement’s Section 5.a.(2)(d) is clear that any coverage afforded is “excess over any other valid and collectible insurance,” regardless of the priority of coverage of the insurance–be it “primary, excess, [or] contingent.” In this case, Church Mutual had already tendered, or attempted to tender its policy limits on Windermere’s behalf in the underlying lawsuit. Therefore, although Windermere is entitled to coverage under the Great American policy, this coverage is excess.

The Other Insurance provision then states that where coverage is excess [*38] and the insured is being provided a defense by another carrier, Great American has no defense obligation. [Doc. 42-2, p. 66-68 of 166 (“CGL Policy”)]. Specifically, this provision provides:

SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS

***

4. Other Insurance

***

(2) When this insurance is excess we will have no duty under Coverages A or B to defend the Insured against any “suit” if any other insurer has a duty to defend the Insured against the “suit.” . . .

Windermere is currently being defended by its own insurance carrier, Church Mutual. Because the policy is clear that there is no defense obligation where coverage is excess and a defense is being provided by another carrier, which is the case here, the Court rejects Windermere’s contention that it is entitled to a defense based on a potential for coverage. Therefore, summary judgment is granted for Great American on its duty to defend.

E. Medical Payments Coverage

Finally, Great American moves for summary judgment as to the Medical Payments coverage for Richards’s medical expenses. In its November 17, 2015 letter to Great American, Windermere demanded the Coverage C Medical Payments limits for Richards. The provision governing Medical [*39] Payments provides in relevant part:

COMMERCIAL GENERAL LIABILITY COVERAGE FORM

***

Coverage C — Medical Payments

1. Insuring Agreement

a. We will pay medical expenses as described below for “bodily injury” caused by an accident:

***

provided that:

***

(b) the expenses are incurred and reported to us within one year of the date of the accident; and

***

[Doc. 42-2, p. 62 of 166 (“CGL Policy”)].

Great American argues that it is entitled to summary judgment as to this coverage because medical expenses were not reported to Great American within the time limit provided in Paragraph 1.a.(b). This provision provides that Great American will pay medical expenses for bodily injury “provided that . . . (b) the expenses are incurred and reported to us within one year of the date of the accident.” Section 1.a.(b) (emphasis added).

Richards’s accident occurred on June 4, 2014. Neither she nor anyone on her behalf made claim for Medical Payments coverage until Windermere’s November 17, 2015 demand letter more than one year after the date of the accident. Therefore, Great American is entitled to summary judgment as to the Medical Payments coverage.

III. Conclusion

For the reasons set forth above, Plaintiff Great American Alliance [*40] Insurance Company’s motion for summary judgment is granted in part and denied in part. [Doc. 34]. Summary judgment is granted on Great American’s liability coverage for Kendra Brown, individually, as an additional insured; Great American’s duty to defend Kendra Brown and Windermere; and Great American’s Medical Payments coverage for Karlee Richards’s injuries. Summary judgment is denied on Great American’s coverage for Windermere as an additional insured. It is further ordered that on or before July 25, 2017, Defendants may file any motions for summary judgment not inconsistent with this order as to the issues ruled against them.

/s/ Nanette K. Laughrey

NANETTE K. LAUGHREY

United States District Judge

Dated: July 5, 2017

Jefferson City, Missouri

It's not what I write, It's what you Learn

Rate this:

Share this:

To Read an Analysis of this decision see: After this decision, I’m not sure you could prove assumption of the risk without a written document and a video or more.

Rate this:

Share this:

Rate this:

Share this:

To Read an Analysis of this decision see:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

Rate this:

Share this:

“Outdoor Recreation Insurance, Risk Management, and Law” is a definitive guide to preventing and overcoming legal issues in the outdoor recreation industry

Table of Cases

Introduction

Outdoor Recreation Law and Insurance: Overview

Risk

Risk

Perception versus Actual Risk

Risk v. Reward

Risk Evaluation

Risk Management Strategies

Humans & Risk

Risk = Accidents

Accidents may/may not lead to litigation

How Do You Deal with Risk?

How Does Acceptance of Risk Convert to Litigation?

Negative Feelings against the Business

Risk, Accidents & Litigation

No Real Acceptance of the Risk

No Money to Pay Injury Bills

No Health Insurance

Insurance Company Subrogation

Negative Feelings

Litigation

Dealing with Different People

Dealing with Victims

Develop a Friend & Eliminate a Lawsuit

Don’t Compound Minor Problems into Major Lawsuits

Emergency Medical Services

Additional Causes of Lawsuits in Outdoor Recreation

Employees

How Do You Handle A Victim?

Dealing with Different People

Dealing with Victims

Legal System in the United States

Courts

State Court System

Federal Court System

Other Court Systems

Laws

Statutes

Parties to a Lawsuit

Attorneys

Trials

Law

Torts

Negligence

Duty

Breach of the Duty

Injury

Proximate Causation

Damages

Determination of Duty Owed

Duty of an Outfitter

Duty of a Guide

Duty of Livery Owner