Indiana Equine Activity Statute
Posted: April 22, 2013 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Indiana Leave a commentBURNS INDIANA STATUTES ANNOTATED
Title 34 Civil Law and Procedure
Article 6 Definitions
Chapter 2 Definitions
Go to the Indiana Code Archive Directory
Burns Ind. Code Ann. § 34-6-2-40 (2013)
34-6-2-40. Equine.
“Equine”, for purposes of IC 34-31-5, means a horse, pony, mule, donkey, or hinny.
HISTORY: P.L.1-1998, § 1.
34-6-2-41. Equine activity.
(a) “Equine activity”, for purposes of IC 34-31-5, includes the following:
(1) Equine shows, fairs, competitions, performances, or parades that involve equines and any of the equine disciplines, including dressage, hunter and jumper horse shows, grand prix jumping, three (3) day events, combined training, rodeos, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding and western games, and hunting.
(2) Equine training or teaching activities.
(3) Boarding equines.
(4) Riding, driving, inspecting, or evaluating an equine, whether or not monetary consideration or anything of value is exchanged.
(5) Rides, trips, hunts, or other equine activities of any type (even if informal or impromptu) that are sponsored by an equine activity sponsor.
(6) Placing or replacing horseshoes on an equine.
(b) The term does not include being a spectator at an equine activity.
HISTORY: P.L.1-1998, § 1.
34-6-2-42. Equine activity sponsor.
“Equine activity sponsor”, for purposes of IC 34-31-5, means a person who sponsors, organizes, or provides facilities for an equine activity.
HISTORY: P.L.1-1998, § 1.
34-6-2-43. Equine professional.
“Equine professional”, for purposes of IC 34-31-5, means a person who, for compensation:
(1) instructs a participant on riding, driving, or being a passenger upon an equine;
(2) rents to a participant an equine for the purpose of riding, driving, or being a passenger upon the equine; or
(3) rents equipment or tack to a participant.
HISTORY: P.L.1-1998, § 1.
34-6-2-69. Inherent risks of equine activities.
“Inherent risks of equine activities”, for purposes of IC 34-31-5, means the dangers or conditions that are an integral part of equine activities, including the following:
(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.
(2) The unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals.
(3) Hazards such as surface and subsurface conditions.
(4) Collisions with other equines or objects.
(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability.
HISTORY: P.L.1-1998, § 1.
NOTES:
NOTES TO DECISIONS
Go to Summary Judgment Proper. Summary Judgment Proper.
Go to Topic List Summary Judgment Proper.
In a negligence complaint brought by an equine event participant against an equine event sponsor for personal injuries suffered during a horse competition, the court properly granted summary judgment to the sponsor because the facts viewed most favorably to the participant showed that her injury, occurring when she was unexpectedly kicked by a horse that became agitated during the sponsor’s competition because another horse was standing too close and began sniffing its rear, resulted from the inherent risks of equine activities in IC 34-6-2-69. Clubs, Inc., 931 N.E.2d 933, 2010 Ind. App. LEXIS 1501 (2010).
34-6-2-95. Participant.
(a) “Participant”, for purposes of IC 34-31-5, means a person, whether an amateur or a professional, who engages in an equine activity, whether or not a fee is paid to participate in the equine activity.
(b) “Participant”, for purposes of IC 34-31-9, has the meaning set forth in 34-31-9-7.
HISTORY: P.L.1-1998, § 1; P.L.6-2012, § 219, emergency eff. February 22, 2012.
NOTES: Amendments.
The 2012 amendment added the (a) designation and added (b).
34-31-5-1. Limitation on liability—Claims prohibited.
(a) Subject to section 2 [IC 34-31-5-2] of this chapter, an equine activity sponsor or equine professional is not liable for:
(1) an injury to a participant; or
(2) the death of a participant;
resulting from an inherent risk of equine activities.
(b) Subject to section 2 of this chapter, a participant or participant’s representative may not:
(1) make a claim against;
(2) maintain an action against; or
(3) recover from;
an equine activity sponsor or equine professional for injury, loss, damage, or death of the participant resulting from an inherent risk of equine activities.
HISTORY: P.L.1-1998, § 27.
NOTES:
NOTES TO DECISIONS
Go to Appellate Review. Appellate Review.Go to Summary Judgment Proper. Summary Judgment Proper.
Go to Topic List Appellate Review.
In a case in which a rider sued an equestrian center and its owner after the rider was injured while mounting her horse, because the trial court properly granted summary judgment for defendants based upon the fact the rider had waived any claim against defendants by signing a waiver agreement, the propriety of the trial court’s decision concerning defendants’ immunity under the equine activities statute, IC 34-31-5-1, was not addressed on appeal. Anderson v. Four Seasons Equestrian Ctr., Inc., 852 N.E.2d 576, 2006 Ind. App. LEXIS 1588 (2006).
Go to Topic List Summary Judgment Proper.
In a negligence complaint brought by an equine event participant against an equine event sponsor for personal injuries suffered during a horse competition, the court properly granted summary judgment to the sponsor under IC 34-31-5-5 because the undisputed evidence was that the sponsor, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the horse barn, the signs were clearly visible, and the participant acknowledged seeing the signs on the horse barn. Clubs, Inc., 931 N.E.2d 933, 2010 Ind. App. LEXIS 1501 (2010).
34-31-5-2. Limitations on applicability of chapter.
(a) This section does not apply to the horse racing industry.
(b) Section 1 [IC 34-31-5-1] of this chapter does not prevent or limit the liability of an equine activity sponsor or an equine professional:
(1) who:
(A) provided equipment or tack that was faulty and that caused the injury; and
(B) knew or should have known that the equipment or tack was faulty;
(2) who provided the equine and failed to make reasonable and prudent efforts based on the participant’s representations of the participant’s ability to:
(A) determine the ability of the participant to engage safely in the equine activity; and
(B) determine the ability of the participant to safely manage the particular equine;
(3) who:
(A) was in lawful possession and control of the land or facilities on which the participant sustained injuries; and
(B) knew or should have known of the dangerous latent condition that caused the injuries;
if warning signs concerning the dangerous latent condition were not conspicuously posted on the land or in the facilities;
(4) who committed an act or omission that:
(A) constitutes reckless disregard for the safety of the participant; and
(B) caused the injury; or
(5) who intentionally injured the participant.
(c) Section 1 of this chapter does not prevent or limit the liability of an equine activity sponsor or an equine professional under the product liability laws.
HISTORY: P.L.1-1998, § 27.
34-31-5-3. Warning notices required.
(a) This chapter does not apply unless an equine activity sponsor or an equine professional posts and maintains in at least one (1) location on the grounds or in the building that is the site of an equine activity a sign on which is printed the warning notice set forth in section 5 [IC 34-31-5-5] of this chapter.
(b) A sign referred to in subsection (a) must be placed in a clearly visible location in proximity to the equine activity.
(c) The warning notice on a sign referred to in subsection (a) must be printed in black letters, and each letter must be at least one (1) inch in height.
HISTORY: P.L.1-1998, § 27.
NOTES:
NOTES TO DECISIONS
Go to Warning in Compliance. Warning in Compliance.
Go to Topic List Warning in Compliance.
In a negligence complaint brought by an equine event participant against an equine event sponsor for personal injuries suffered during a horse competition, the court properly granted summary judgment to the sponsor under IC 34-31-5-5 because the undisputed evidence was that the sponsor, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the horse barn, the signs were clearly visible, and the participant acknowledged seeing the signs on the horse barn. Clubs, Inc., 931 N.E.2d 933, 2010 Ind. App. LEXIS 1501 (2010).
34-31-5-4. Written contracts.
(a) If there is a written contract, this chapter does not apply unless the written contract entered into by an equine professional for:
(1) the providing of professional services;
(2) the providing of instruction; or
(3) the rental of:
(A) equipment or tack; or
(B) an equine;
to a participant contains in clearly readable print the warning notice set forth in section 5 [IC 34-31-5-5] of this chapter.
(b) The warning notice required by subsection (a) must be included in a written contract described in subsection (a) whether or not the contract involves equine activities on or off the location or site of the equine professional’s business.
HISTORY: P.L.1-1998, § 27.
34-31-5-5. Contents of warning notice.
The warning notice that must be printed on a sign under section 3 [IC 34-31-5-3] of this chapter and included in a written contract under section 4 [IC 34-31-5-4] of this chapter is as follows:
WARNING
Under Indiana law, an equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.
HISTORY: P.L.1-1998, § 27.
NOTES:
NOTES TO DECISIONS
Go to Warning in Compliance. Warning in Compliance.
Go to Topic List Warning in Compliance.
In a negligence complaint brought by an equine event participant against an equine event sponsor for personal injuries suffered during a horse competition, the court properly granted summary judgment to the sponsor under IC 34-31-5-5 because the undisputed evidence was that the sponsor, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the horse barn, the signs were clearly visible, and the participant acknowledged seeing the signs on the horse barn. Clubs, Inc., 931 N.E.2d 933, 2010 Ind. App. LEXIS 1501 (2010).
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Hawaii’s deceptive trade practices act sends this case and release back to the trial court
Posted: April 1, 2013 Filed under: Assumption of the Risk, Equine Activities (Horses, Donkeys, Mules) & Animals, Hawaii, Release (pre-injury contract not to sue) | Tags: Contract, Dahana Ranch, Deceptive Trade Practices, Defendant, equestrian, HI, Horse, horseback riding, Inc., Law, Plaintiff, stable, Summary judgment, Trial court, Waiver Leave a commentCourbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386
The court agrees that the issue of not finding out that you had to sign a waiver until the time of the activity might be a deceptive practice.
This is a very interesting case. A couple booked several activities through a third-party booking agency. The activity in question was a horseback ride. The plaintiffs had booked the ride several months in advance of the ride and upon showing up, were handed a release.
Upon arriving at the defendant, the plaintiff read the waiver signed it, and passed it on to her husband. The husband signed it, testifying in his deposition that he relied on his wife to read such documents.
The record demonstrates that the Courbats were given adequate time and opportunity to fully review the waiver presented to them before they signed it and that both knew that by signing it; they were waiving legal rights in return for being allowed to participate in the ride.
Of note was a statement made by the court that no guest of the defendant had ever refused to sign the waiver.
During the ride, one horse kicked the plaintiff in the shin causing her an injury. She and her husband sued for negligence, gross negligence, and for unfair and deceptive practices.
The defendant responded that the plaintiff assumed the risk, the release barred the plaintiff’s claims and the ranch had done nothing to bring it into the purview of the Hawaiian Deceptive Trade Practices Act. (HRS §§ 480-2 and 480-13)
The trial court granted the defendant’s motion for summary judgment, and the decision was appealed.
Summary of the case
The court spent the most time on the issue that booking a ride several months in advance and not finding out that a waiver had to be signed on arrival was a deceptive practice.
…they assert that the Ranch’s practice of booking ride reservations through an activity company, receiving payment prior to the arrival of the guest, and then, upon the guest’s arrival at the Ranch, requiring the guest to sign a liability waiver as a precondition to horseback riding is an unfair and deceptive business practice to which the remedies of HRS ch. 480 apply.
The plaintiffs did not argue that the waiver was deceptive, only the fact that they were not informed that a waiver had to be signed. If the practice was found to be deceptive, then the waiver would be void.
The Courbats do not allege that the waiver itself is deceptive; rather, they urge that the deceptive practice at issue was the booking agent’s failure to inform them of the waiver requirement during the negotiation and execution of the underlying contract. Nevertheless, if any deceptive omission occurred with respect to the negotiation and execution of the original contract, the operation of HRS § 480-12, see supra note 1, would render both the original contract and the waiver, signed afterward, void.
After analyzing the fact the court found that there was an issue: “…whether a waiver requirement would be materially important in booking a horseback tour remains one for the trier of fact.”
However, if the trier of fact (jury) finds that a failure to warn the plaintiff was not deceptive, then the waiver would be valid.
The court then looked at the waiver to determine if met Hawaiian law. The court found that if the plaintiff signed the wavier, then the plaintiff was bound by its terms. Waivers, exculpatory contracts, are valid if they are “knowingly and willingly made and free from fraud.”
Waivers can be voided for three reasons in Hawaii.
“‘exculpatory clauses will be held void if the agreement is
(1) violative of a statute,
(2) contrary to a substantial public interest, or
(3) gained through inequality of bargaining power.'”
The court then looked at what was a public interest and found a public interest had the following characteristics:
[1] It concerns a business of a type generally thought suitable for public regulation.
[2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often [***30] a matter of practical necessity for some members of the public.
[3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.
[4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.
[5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.
[6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller of the service, subject to the risk of carelessness by the seller or his agents.
Recreational activities are unsuitable for public regulation; therefore, they do not violate the Hawaiian public interest definition that would void a release.
…while such waivers may be contracts of adhesion, in that they are presented on a “take-it-or-leave-it” basis, they are not unconscionable, but “are of a sort commonly used in recreational settings” and “are generally held to be valid.
Contracts of adhesion are ‘unenforceable if two conditions are present: (1) the contract is the result of coercive bargaining between parties of unequal bargaining strength; and (2) the contract unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party.
Because the plaintiffs had time to read and review the waiver, there was no coercion.
The court reviewed one final issue, waivers under Hawaiian law, like most other states do not stop claims for gross negligence or willful misconduct.
Consequently, the case was sent back for a jury to determine if the acts of the defendant, by and through its booking agency, acted deceptively or if the acts of the defendant were grossly negligent. If so the plaintiff would win the suit. If the acts of the defendant were not deceptive or the defendant was not grossly negligent the defendant would win at trial.
There was a dissent which found that the acts were not deceptive by law.
So Now What?
It is so easy to avoid most of the issues that were part of this appeal. Once some signs up for a trip or activity, whether through you or a third party, they must be informed that they are going to sign a release.
It is that easy. Put it on the receipt, put it on the website, put it on the paperwork, in the brochure; put it everywhere. If you are in a state where the release is valid you will not go through the time, cost, and expense of this type of litigation.
Every state has a deceptive trade practice statute. The statutes are enacted to protect consumers from dishonest businesses. The court did not examine the facts in light of an intentional act; just the practice alone was deceptive.
Don’t learn the act, just inform your guests.
Plaintiff: Lisa Courbat and Steven Courbat
Defendant: Dahana Ranch, Inc.
Plaintiff Claims: negligence, gross negligence, violation of the Hawaiian Deceptive Trade Practices statute.
Defendant Defenses: assumption of the risk, release, did not violate the deceptive practices act
Holding: reversed and sent back for trial
What do you think? Leave a comment.
 James H. “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 eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
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Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386
Posted: April 1, 2013 Filed under: Assumption of the Risk, Equine Activities (Horses, Donkeys, Mules) & Animals, Hawaii, Legal Case, Release (pre-injury contract not to sue) | Tags: Deceptive Trade Practices, equestrian, Equine, Hawaii, HI, Horse, horseback riding, Release, Releases / Waivers, stable, Waiver Leave a commentTo Read an Analysis of this decision see
Hawaii Supreme Court agrees that finding out a release is required to be signed upon arrival at the activity and after the activity has been paid for may be a deceptive trade practice.
Hawaii’s deceptive trade practices act sends this case and release back to the trial court
Courbat v. Dahana Ranch, Inc., 111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386
Lisa Courbat and Steven Courbat, Plaintiffs-Appellants, vs. Dahana Ranch, Inc., Defendant-Appellee, and John Does 1-10, Jane Does 1-10, Doe Associations 1-10, Doe Partnerships 1-10, Doe Corporations 1-10, Doe Entities 1-10, and Doe Governmental Units 1-5, Defendants.
NO. 25151
SUPREME COURT OF HAWAI’I
111 Haw. 254; 141 P.3d 427; 2006 Haw. LEXIS 386
July 10, 2006, Decided
SUBSEQUENT HISTORY: Amended by, Reconsideration granted by, in part, Reconsideration denied by, in part Courbat v. Dahana Ranch, 2006 Haw. LEXIS 417 (Haw., Aug. 3, 2006)
PRIOR HISTORY: [***1] APPEAL FROM THE THIRD CIRCUIT COURT. CIV. NO. 01-1-0049.
COUNSEL: On the briefs:
Andrew S. Iwashita, for the plaintiffs-appellants Lisa Courbat and Steven Courbat.
Zale T. Okazaki, of Ayabe, Chong, Nishimoto, Sia and Nakamura, for the defendant-appellee Dahana Ranch, Inc.
JUDGES: MOON, C.J., LEVINSON AND NAKAYAMA, JJ., AND DUFFY, J., DISSENTING, WITH WHOM ACOBA, J. JOINS.
OPINION BY: LEVINSON
OPINION
[**429] [*256] OPINION OF THE COURT BY LEVINSON, J.
The plaintiffs-appellants Lisa Courbat and Steven Courbat [hereinafter, collectively, “the Courbats”] appeal from the May 13, 2002 judgment of the circuit court of the third circuit, the Honorable Riki May Amano presiding, entered pursuant to the circuit [*257] [**430] court’s April 26, 2002 grant of summary judgment in favor of the defendant-appellee Dahana Ranch, Inc. (the Ranch).
On appeal, the Courbats contend that the circuit court erred: (1) in concluding that Hawai’i Revised Statutes (HRS) § 480-2 et seq. (Supp. 1998) 1 do not apply to the Ranch’s business practices of booking prepaid tours and subsequently requiring liability waivers upon check-in; (2) by applying the rebuttable presumption set forth in HRS § 663B-2(a) [***2] (Supp. 1994) 2 in finding that [*258] [**431] Lisa’s injuries were not due to the negligence of the tour operator; (3) in finding that the Courbats sufficiently read over the waiver before signing it; and (4) in concluding that the waiver was valid as to their negligence claims.
1 HRS ch. 480 provided in relevant part:
§ 480-2 . . . . (a) [HN1] Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.
(b) In construing this section, the courts and the office of consumer protection shall give due consideration to the rules, regulations, and decisions of the Federal Trade Commission and the federal courts interpreting section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended.
. . . .
§ 480-3 . . . . [HN2] This chapter shall be construed in accordance with judicial interpretations of similar federal antitrust statutes . . . .
. . . .
§ 480-12 . . . . [HN3] Any contract or agreement in violation of this chapter is void and is not enforceable at law or in equity.
§ 480-13 . . . . (b) [HN4] Any consumer who is injured by any unfair or deceptive act or practice forbidden or declared unlawful by section 480-2:
(1) May sue for damages sustained by the consumer, and, if the judgment is for the plaintiff, the plaintiff shall be awarded a sum not less than $ 1,000 or threefold damages by the plaintiff sustained, whichever sum is the greater, and reasonable attorneys’ fees together with the costs of suit; . . . and
(2) May bring proceedings to enjoin the unlawful practices, and if the decree is for the plaintiff, the plaintiff shall be awarded reasonable attorneys’ fees together with the cost of suit.
Effective June 28, 2002, HRS § 480-2 was amended in respects immaterial to the present matter. See 2002 Haw. Sess. L. Act 229, §§ 2 and 6 at 916-18. Effective May 2, 2001, June 28, 2002, and June 7, 2005, HRS § 480-13 was amended in respects immaterial to the present matter. See 2005 Haw. Sess. L. Act 108, §§ 3 and 5 at 265-66, 267; 2002 Haw. Sess. L. Act 229, §§ 3 and 6 at 917-18; 2001 Haw. Sess. L. Act 79, §§ 1 and 5 at 127-28.
[***3]
2 HRS ch. 663B, entitled “Equine activities” and enacted in 1994, see 1994 Haw. Sess. L. Act 229, §§ 1 and 2 at 591-92, provides in relevant part:
§ 663B-1 . . . . [HN5] As used in this [chapter], unless the context otherwise requires:
“Engages in an equine activity” means riding . . . or being a passenger upon an equine . . . .
. . . .
“Equine activity” means:
. . . .
(5) Rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor; and
. . . .
“Equine activity sponsor” means an individual, group, club, partnership, or corporation . . . which sponsors, organizes, or provides the facilities for, an equine activity. . . .
“Equine professional” means a person engaged for compensation in instructing a participant or renting to a participant an equine for the purpose of riding, driving, or being a passenger upon the equine, or in renting equipment or tack to a participant.
“Inherent risks of equine activities” means those dangers or conditions which are an integral part of equine activities, including, but not limited to:
(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around them;
(2) The unpredictability of an equine’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals;
(3) Certain hazards such as surface and subsurface conditions;
(4) Collisions with other equines or objects; and
(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability.
“Participant” means any person, whether amateur or professional, who engages in an equine activity, whether or not a fee is paid to participate in the equine activity.
§ 663B-2 . . . . (a) [HN6] In any civil action for injury, loss, damage, or death of a participant, there shall be a presumption that the injury, loss, damage, or death was not caused by the negligence of an equine activity sponsor, equine professional, or their employees or agents, if the injury, loss, damage, or death was caused solely by the inherent risk and unpredictable nature of the equine. An injured person or their legal representative may rebut the presumption of no negligence by a preponderance of the evidence.
(b) Nothing in this section shall prevent or limit the liability of an equine activity sponsor, an equine professional, or their employees or agents if the equine activity sponsor, equine professional, or person:
. . . .
(2) Provided the equine and . . . failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury
. . . . (Some brackets in original and some omitted.)
[***4] For the reasons discussed infra in section III.A, we vacate the circuit court’s May 13, 2002 judgment and remand for further proceedings consistent with this opinion.
I. BACKGROUND
The present matter arises out of personal injuries sustained by Lisa on February 1, 1999, while she and Steven were on a horseback riding tour on the Dahana Ranch on the Big Island of Hawai’i. The Courbats had booked the tour and prepaid the fee several months earlier through Island Incentives, Inc., an internet-based tour organizer. When they checked in at the Ranch, the Courbats were presented with a document to review and to sign which laid out the rules for the horseback tour and included a waiver “releas[ing] and hold[ing] harmless . . . [the] Ranch . . . from . . . injury to myself . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities” and stating that the undersigned “acknowledge[s] that there are significant elements of risk in any adventure, sport, or activity associated with horses.” 3 According to admissions by the Courbats in subsequent depositions, Lisa read over the waiver and, having [***5] no questions regarding the rules and regulations it contained, signed it before passing it to her husband to sign. Steven evidently did not read it, but recognized that it was “some kind of release of some sort” and signed it. In fact, no guest of the Ranch had ever refused to sign a waiver. Steven was familiar with the concept of such waivers, having participated with his wife in a snorkeling activity earlier during the vacation, at which time they both signed similar forms.
3 The rules and waiver stated in pertinent part:
In order for us to keep our ride from being a “Nose To Tail Trail Ride[,”] there are certain rules which must be followed for your safety and the horses’ mental well being. FAILURE TO FOLLOW THESE RULES WILL RESULT IN FORFEITURE OF YOUR RIDE WITH NO REFUND.
RULES AND REGULATIONS
FOLLOW RIDING INSTRUCTIONS & DIRECTIONS THROUGHOUT THE RIDE
. . . .
. PLEASE DO NOT RIDE AHEAD OF YOUR GUIDE UNLESS TOLD TO DO SO
. . . .
. DO NOT FOLLOW ONE ANOTHER
. . . .
WAIVER
I/We, the undersigned, hereby release and hold harmless the land owners, managers, operators (William P. Kalawaianui, Daniel H. Nakoa, Dahana Ranch and Nakoa Ranch), [t]he State of Hawai[]i and the Department of Hawaiian Home Lands and all other persons directly related to those listed above for the event listed herein[,] their successors, assigns and affiliates from loss or damage to property or injury to myself or any person . . . resulting from my . . . being a spectator or participant or while engaged in any such activity in the event[-] related facilities. I/We acknowledge that there are significant elements of risk in any adventure, sport or activity associated with horses.
I/WE HAVE READ AND UNDERSTOOD THE FOREGOING RULES, REGULATIONS AND WAIVER.
(Emphasis in original.)
[***6] The Ranch’s guide, Daniel Nakoa, briefed the Courbats on how to handle a horse and general rules of the trail, including the importance of not riding single-file or allowing the horses to bunch up end to end. Out on the ride, Lisa was injured when she rode up behind Nakoa’s horse while Nakoa was speaking with another guest who had approached Nakoa with a question. According to later statements by both Nakoa and Lisa, Lisa approached Nakoa’s horse from the rear while the three horses were in motion, and, when her horse neared Nakoa’s horse, Nakoa’s horse struck out at her horse, hitting Lisa in the left shin. Lisa described the incident in a deposition taken on November 3, 2001:
Q: At what point did you believe that you needed to pull the reins back as you were approaching the guide . . . ? . . .
[*259] [**432] [Lisa]: When I felt that the horse[] was getting too close to the horses above me.
Q: So it appeared to you that the nose end of the horse was getting too close to the butt end of the horse in front?
[Lisa]: To the horse in general. We were coming in. I was just trying to keep a certain space between myself and the horse.
Q: [T]hose two horses, the guide’s [***7] horse and the guest’s horse, they were to the left of your horse, is that correct, to the front left of you?
[Lisa]: Yes.
Q: You recall which hind leg of the horse kicked you? Was it the right or the left?
[Lisa]: It would be the right one.
Q: And that was a horse which was ridden by the guide or the guest?
[Lisa]: The guide.
Q: Just before the horse in front of you kicked you, were all of the horses still in motion? When I say “all the horses,” yours, the guide’s, and the guest that was riding parallel to the guide?
[Lisa]: Just before?
Q: Yes.
[Lisa]: Yes.
Q: Was there any conversation between you and the guide or the guest just before this kicking incident occurred?
[Lisa]: No.
Q: At the time this kicking incident occurred, w[ere] the guide and the guest still talking to each other?
[Lisa]: Yes.
Nakoa described the same incident in a January 9, 2002 deposition:
[Nakoa]: . . . Everybody was facing the gate, the second gate. . . . And I was in the back. And because I lots of times don’t want to be a part of the ride, I started riding to the right. And then a man came to talk to me and [***8] ask me about the horse.
. . . .
Q: On which side of your horse was he at the time?
[Nakoa]: He was on the left side of me.
Q: And were you still moving or were you stopped?
[Nakoa]: We were walking.
. . . .
Q: . . .[H]ad you passed Lisa along the way? . . . .
[Nakoa]: Because of the angle, she was off to my left.
Q: Still in front of you?
[Nakoa]: No. About the same.
. . . .
Q: And when is the next time you notice[] Lisa’s horse before the injury takes place?
. . . .
[Nakoa]: She was still on the left side of me.
Q: . . . [A]bout how far away do you estimate she was from your horse?
[Nakoa]: You know, 30 feet maybe. . . .
Q: And from that point on, . . . were you able to continually observe Lisa riding her horse until the time the injury occurred?
[Nakoa]: Yes. The man was on my left and I was talking to him.
. . . .
Q: . . . [W]hile [the guest is] asking you this question and you can see [Lisa], what is her horse doing as it’s approaching your horse?
[Nakoa]: No, I didn’t see her approaching my horse. That’s what I’m trying to tell you. She was on the [***9] left side of this man and me and we’re all going in that direction (indicating). She was trotting, and I was walking with this man. And I saw her. And then this man asked me something. And the next thing I knew, she was right in back of my horse telling me that my horse kicked her.
Nakoa later acknowledged in the deposition that, if he or his horse had been aware that Lisa’s horse was approaching from behind, his horse would not have been surprised and would not have struck out at her horse. As a result of the impact, Lisa suffered severe pain and swelling, but no broken bones, and [*260] [**433] since the incident has complained of ongoing pain and injury to her leg.
The Courbats filed suit on January 31, 2001, asserting claims of negligence and gross negligence that resulted in physical injury to Lisa and loss of consortium injuries to Steven. On November 21, 2001, they filed a first amended complaint, adding a claim of unfair and deceptive trade practices regarding the waiver they had signed the day of the ride.
On January 16, 2002, the Ranch filed a motion for summary judgment on the grounds: (1) that the Courbats had assumed the risk of the activity; (2) that the Courbats [***10] had waived their rights to sue the Ranch for negligence; and (3) that the Ranch had not committed any acts that brought it under the purview of HRS §§ 480-2 and 480-13, see supra note 1.
The Courbats filed a memorandum in opposition to the Ranch’s motion and a motion for partial summary judgment, urging the circuit court to rule, inter alia: (1) that the Ranch owed Lisa a duty to protect her from injury by Nakoa’s horse; and (2) that the rebuttable presumption of no negligence on a defendant’s part set forth in HRS § 663B-2, see supra note 2, was inapplicable.
The circuit court conducted a hearing on both motions on February 13, 2002 and, on April 26, 2002, entered an order granting the Ranch’s motion and denying the Courbats’ motion. On May 13, 2002, the circuit court entered a final judgment in favor of the Ranch and against the Courbats. On August 8, 2002, the Courbats filed a timely notice of appeal. 4
4 On May 10, 2002, the Ranch filed a notice of taxation of costs which, pursuant to Hawai’i Rules of Appellate Procedure (HRAP) Rule 4(a)(3), tolled the time for filing an appeal. An order as to taxation of costs was never entered, and so, pursuant to HRAP Rule 4(a)(3), the request was deemed denied 90 days later, on August 8, 2002. The Courbats’ appeal, filed prematurely on June 7, 2002, was therefore timely filed as of August 8, 2002, pursuant to HRAP Rule 4(a)(2) and (3).
[***11] II. STANDARDS OF REVIEW
A. Summary Judgment
We [HN7] review the circuit court’s grant or denial of summary judgment de novo . . . .
[S]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.
[Hawai’i Cmty. Fed. Credit Union v. Keka, 94 Hawai’i 213, 221, 11 P.3d 1, 9 (2000)] (citations and internal quotation marks omitted).
Querubin v. Thronas, 107 Hawai’i 48, 56, 109 P.3d 689, 697 (2005) (quoting Durette v. Aloha Plastic Recycling, Inc., 105 Hawai’i 490, 501, 100 P.3d 60, 71 (2004)) [***12] (internal citation omitted) (some brackets in original).
B. Interpretation Of Statutes
[HN8] The interpretation of a statute is a question of law reviewable de novo. State v. Arceo, 84 Hawai’i 1, 10, 928 P.2d 843, 852 (1996).
Furthermore, our statutory construction is guided by established rules:
[HN9] When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty [*261] [**434] of an expression used in a statute, an ambiguity exists. . . .
In construing an ambiguous statute, “[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.” HRS § 1-15(1) [(1993)]. Moreover, the courts may resort to extrinsic aids in determining legislative intent. [***13] One avenue is the use of legislative history as an interpretive tool.
Gray [v. Admin. Dir. of the Court], 84 Hawai’i [138,] 148, 931 P.2d [580,] 590 [(1997)] (footnote omitted).
State v. Koch, 107 Hawai’i 215, 220, 112 P.3d 69, 74 (2005) (quoting State v. Kaua, 102 Hawai’i 1, 7-8, 72 P.3d 473, 479-480 (2003)). [HN10] Absent an absurd or unjust result, see State v. Haugen, 104 Hawai’i 71, 77, 85 P.3d 178, 184 (2004), this court is bound to give effect to the plain meaning of unambiguous statutory language; we may only resort to the use of legislative history when interpreting an ambiguous statute. State v. Valdivia, 95 Hawai’i 465, 472, 24 P.3d 661, 668 (2001).
III. DISCUSSION
A. Inasmuch As The Presence Or Absence Of An Unfair Or Deceptive Trade Practice Is For The Trier Of Fact To Determine, The Circuit Court Erroneously Granted Summary Judgment In Favor Of The Ranch And Against The Courbats.
The Courbats do not dispute that they both signed the Ranch’s waiver form, see supra note 3, prior to their ride. Nor do they dispute that waivers are an accepted [***14] method by which businesses may limit their liability. Rather, they assert that the Ranch’s practice of booking ride reservations through an activity company, receiving payment prior to the arrival of the guest, and then, upon the guest’s arrival at the Ranch, requiring the guest to sign a liability waiver as a precondition to horseback riding is an unfair and deceptive business practice to which the remedies of HRS ch. 480 apply. The Courbats maintain that the practice of withholding the waiver had “the capacity or tendency to mislead” customers, thereby satisfying this court’s test for a deceptive trade practice as articulated in State ex rel. Bronster v. United States Steel Corp., 82 Hawai’i 32, 50, 919 P.2d 294, 312 (1996).
The Intermediate Court of Appeals held in Beerman v. Toro, 1 Haw. App. 111, 118, 615 P.2d 749, 754-55 (1980), that [HN11] the remedies afforded by HRS ch. 480 are not available for personal injury claims. See also Blowers v. Eli Lilly & Co., 100 F. Supp. 2d 1265, 1269-70 (D. Haw. 2000). The Courbats, however, assert that they are not invoking HRS ch. 480 for the purpose of establishing personal injury damages, [***15] but rather because the lack of notice as to the waiver requirement injured them economically, by way of the $ 116 cost of the tour, giving rise to a valid claim under HRS § 480-13, see supra note 1. As a deceptive trade practice, the Courbats maintain, the waiver is void under HRS § 480-12, see supra note 1.
1. The elements of a deceptive trade practice claim for recision of a contract
[HN12] To render the waiver void, the Courbats must establish that it is an unseverable part of a “contract or agreement in violation of [HRS ch. 480].” See HRS § 480-12, supra note 1. Furthermore, any “unfair or deceptive act[] or practice[] in the conduct of any trade or commerce” violates HRS § 480-2.
[HN13] “Deceptive” acts or practices violate HRS § 480-2, but HRS ch. 480 contains no statutory definition of “deceptive.” This court has described a deceptive practice as having “the capacity or tendency to mislead or deceive,” United States Steel Corp., 82 Hawaii at 50, 919 P.2d at 312, 313, but, beyond noting that federal [***16] cases have also defined deception “as an act causing, as a natural and probable result, a person to do that which he [or she] would not do otherwise,” Keka, 94 Hawai’i at 228, 11 P.3d at 16 (brackets in original) (quoting United States Steel Corp., 82 Hawaii at 51, 919 P.2d at 313 (citing Bockenstette v. Federal Trade Comm’n, 134 F.2d 369, 36 F.T.C. 1106 (10th Cir. 1943))), we have not articulated a more refined test.
[HN14] HRS § 480-3, see supra note 1, provides that HRS ch. 480 “shall be construed in accordance with judicial interpretations of similar federal antitrust statutes,” [*262] [**435] and HRS § 480-2(b) provides that “[i]n construing this section, the courts . . . shall give due consideration to the . . . decisions of . . . the federal courts interpreting . . . 15 U.S.C. [§ ] 45(a)(1)[(2000)],” 5 in recognition of the fact that HRS § 480-2 is “a virtual counterpart.” 6 Keka, 94 Hawai’i at 228, 11 P.3d at 16. The Federal Trade Commission (FTC), in In re Cliffdale Assocs., Inc., 103 F.T.C. 110, Trade Cas. (CCH) P22137 (1984), developed [***17] a three-part analytical test for “deception,” 7 which the federal courts have thereafter extensively adopted, see FTC v. Verity Int’l, Ltd., 443 F.3d 48, 63 (2d. Cir. 2006); FTC v. Tashman, 318 F.3d 1273, 1277 (11th Cir. 2003); FTC v. Pantron I Corp., 33 F.3d 1088, 1095 (9th Cir. 1994); FTC v. World Travel Vacation Brokers, Inc., 861 F.2d 1020, 1029 (7th Cir. 1988). Under the Cliffdale Assocs. test, a deceptive act or practice is “(1) a representation, omission, or practice[] that (2) is likely to mislead consumers acting reasonably under the circumstances [where] (3)[] the representation, omission, or practice is material.” Verity Int’l, 443 F.3d at 63. A representation, omission, or practice is considered “material” if it involves “‘information that is important to consumers and, hence, likely to affect their choice of, or conduct regarding, a product.'” Novartis Corp. v. FTC, 343 U.S. App. D.C. 111, 223 F.3d 783, 786 (D.C. Cir. 2000) (quoting Cliffdale Assocs., 103 F.T.C. at 165); see also Kraft, Inc. v. FTC, 970 F.2d 311, 322 (7th Cir. 1992); [***18] FTC v. Crescent Publ’g Group, Inc., 129 F. Supp. 2d 311, 321 (S.D.N.Y. 2001); FTC v. Five-Star Auto Club, Inc., 97 F. Supp. 2d 502, 529 (S.D.N.Y. 2000); FTC v. Sabal, 32 F. Supp. 2d 1004, 1007 (N.D. Ill. 1998). Moreover, the Cliffdale Assocs. test is an objective one, turning on whether the act or omission “is likely to mislead consumers,” Verity Int’l, 443 F.3d at 63, as to information “important to consumers,” Novartis Corp., 223 F.3d at 786, in making a decision regarding the product or service. 8
5 15 U.S.C. § 45(a)(1) provides that ” [HN15] [u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”
6 Hawai’i courts have long recognized, therefore, that federal interpretations of 15 U.S.C. § 45(a)(1) guide us in construing HRS § 480-2 “in light of conditions in Hawai’i.” Ai v. Frank Huff Agency, 61 Haw. 607, 613 n.11, 607 P.2d 1304, 1309 n.11 (1980); see also Island Tobacco Co. v. R.J. Reynolds Tobacco Co., 63 Haw. 289, 299, 627 P.2d 260, 268 (1981) overruled on other grounds by Robert’s Hawaii School Bus, Inc. v. Laupahoehoe Transp. Co., Inc., 91 Hawai’i 224, 982 P.2d 853 (1999); Rosa v. Johnston, 3 Haw. App. 420, 426, 651 P.2d 1228, 1233-34 (1982).
[***19]
7 See Cliffdale Assocs., 103 F.T.C. at 164-65 (characterizing the new standard as a refinement of the “tendency or capacity to deceive” test used by the FTC to that point and pronouncing the old test “circular and therefore inadequate to provide guidance”).
8 [HN16] While federal courts have not expressly categorized the test as objective, the FTC, in Cliffdale Assocs., commented that “[t]he requirement that an act or practice be considered from the perspective of a consumer acting reasonably in the circumstances is not new. . . . [The FTC] has long recognized that the law should not be applied in such a way as to find that honest representations are deceptive simply because they are misunderstood by a few. . . . [A]n advertisement would not be considered deceptive merely because it could be unreasonably misunderstood by an insignificant and unrepresentative segment of the class of persons [to] whom the representation is addressed.” 103 F.T.C. at 165 (footnotes and internal quotation signals omitted).
[HN17] Given our obligation under HRS §§ 480-3 [***20] and 480-2(b) to apply federal authority as a guide in interpreting HRS ch. 480, we hereby adopt the three-prong Cliffdale Assocs. test in determining when a trade practice is deceptive. 9
9 Other states have already adopted the Cliffdale Assocs. test. See, e.g., Luskin’s, Inc. v. Consumer Prot. Div., 353 Md. 335, 726 A.2d 702, 713 (Md. 1999); Carter v. Gugliuzzi, 168 Vt. 48, 716 A.2d 17, 23 (Vt. 1998). Our adoption of the Cliffdale Assocs. test does not change the existing rule that, in order to establish a violation of HRS § 480-2, the plaintiff need not establish an intent to deceive on the part of the defendant, World Travel Vacation Brokers, 861 F.2d at 1029; Five-Star Auto Club, 97 F. Supp. at 526, nor any actual deceit, United States Steel Corp., 82 Hawai’i at 51, 919 P.2d at 313.
2. Under The Cliffdale Assocs. Objective Consumer Test, The Determination [***21] Of A Deceptive Omission Is One For The Trier Of Fact, Thereby Rendering Summary Judgment Inappropriate.
The Courbats do not allege that the waiver itself is deceptive; rather, they urge [*263] [**436] that the deceptive practice at issue was the booking agent’s failure to inform them of the waiver requirement during the negotiation and execution of the underlying contract. 10 Nevertheless, if any deceptive omission occurred with respect to the negotiation and execution of the original contract, the operation of HRS § 480-12, see supra note 1, would render both the original contract and the waiver, signed afterward, void. 11 Thus, the waiver’s survival depends on the trier of fact’s determination as to whether the omission of the waiver requirement during Island Incentives, Inc.’s booking process was deceptive and therefore in violation of HRS § 480-2.
10 It is undisputed that Island Incentives, Inc. was acting as the Ranch’s agent in this matter, and “we note that [HN18] an owner is responsible for the representations of his agent made within the scope of his agent’s selling authority.” Au v. Au, 63 Haw. 210, 215, 626 P.2d 173, 178 (1981) (citing Negyessy v. Strong, 136 Vt. 193, 388 A.2d 383, 385 (Vt. 1978)).
[***22]
11 If the waiver were severable from the underlying contract, it could survive despite a determination that the original contract was void. See Ai v. Frank Huff Agency, 61 Haw. 607, 619, 607 P.2d 1304, 1312 (1980) [HN19] (“The wording on HRS § 480-12 might . . . appear to suggest that any contract containing an illegal provision . . . should be held unenforceable in its entirety. . . . [U]nder ordinary contract law, however, . . . a partially legal contract may be upheld if the illegal portion is severable from the part which is legal.”). However, “the general rule is that severance of an illegal provision is warranted and the lawful portion . . . enforceable when the illegal provision is not central to the parties’ agreement.” Beneficial Hawaii, Inc. v. Kida, 96 Hawai’i 289, 311, 30 P.3d 895, 917 (2001). The underlying contract at issue is the sum of the parties’ agreement; the waiver would be considered an addendum to it. Therefore, the waiver is not severable and must stand or fall with the underlying contract.
[HN20] The application [***23] of an objective “reasonable person” standard, of which the Cliffdale Assocs. test is an example, is ordinarily for the trier of fact, rendering summary judgment “often inappropriate.” Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 107, 839 P.2d 10, 24 (1992), cited in Casumpang v. ILWU Local 142, 108 Hawai’i 411, 425, 121 P.3d 391, 405 (2005); Arquero v. Hilton Hawaiian Village LLC, 104 Hawai’i 423, 433, 91 P.3d 505, 515 (2004). “Inasmuch as the term ‘reasonableness’ is subject to differing interpretations . . ., it is inherently ambiguous. Where ambiguity exists, summary judgment is usually inappropriate because ‘the determination of someone’s state of mind usually entails the drawing of factual inferences as to which reasonable [minds] might differ.'” Amfac, Inc., 74 Haw. at 107, 839 P.2d at 24 (quoting Bishop Trust Co. v. Cent. Union Church, 3 Haw. App. 624, 628-29, 656 P.2d 1353, 1356 (1983)). Reasonableness can only constitute a question of law suitable for summary judgment “‘when the facts are undisputed and not fairly susceptible of divergent inferences’ because ‘[w]here, upon [***24] all the evidence, but one inference may reasonably be drawn, there is no issue for the jury.'” Id. at 108, 839 P.2d at 24 (quoting Broad & Branford Place Corp. v. J.J. Hockenjos Co., 132 N.J.L. 229, 39 A.2d 80, 82 (N.J. 1944) (brackets in original)). “‘[A] question of interpretation is not left to the trier of fact where evidence is so clear that no reasonable person would determine the issue in any way but one.'” Id. (quoting Restatement (Second) of Contracts § 212 cmt. e (1981) (brackets in original)). See also Restatement (Second) of Contracts § 212(2) (1981 and Supp. 2005) (“A question of interpretation of an integrated agreement is to be determined by the trier of fact if it depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence .”) (Emphasis added). There is no genuine issue of material fact regarding the failure to disclose the waiver requirement during negotiation of the original tour contract, but we cannot say that, applying the Cliffdale Assocs. test, reasonable minds could draw [***25] only one inference as to the materiality of that omission to reasonable consumers contemplating the transaction. Therefore, the question whether a waiver requirement would be materially important in booking a horseback tour remains one for the trier of fact.
Because a genuine issue of material fact, resolvable only by the trier of fact, remains in dispute, the grant of summary judgment on the HRS ch. 480 claim was erroneous. We therefore vacate the circuit court’s May [*264] [**437] 13, 2002 judgment and remand for further proceedings consistent with this opinion.
B. The Consequences, On Remand, Of The Determination By The Trier Of Fact As To Whether Nondisclosure Of The Waiver Requirement Was A Deceptive Trade Practice
If, on remand, the trier of fact determines that the nondisclosure of the waiver was a deceptive trade practice, rendering the waiver void, then the Courbats’ negligence claims proceed free of the waiver defense. Nevertheless, for the reasons set forth below and for purposes of any subsequent trial on the Courbats’ negligence claims, we hold that HRS ch. 663B, entitled “Equine activities,” see supra note 2, setting forth a rebuttable presumption of non-negligence [***26] on the part of the tour operator, does not apply to the present matter.
Conversely, if, on remand, the trier of fact determines that the nondisclosure of the waiver was not deceptive, then the Courbats validly waived their negligence claims.
1. The Statutory Presumption Of Non-Negligence For Equine-Related Injuries Set Forth In HRS Ch. 663B Does Not Apply To The Courbats’ Claims.
If the trier of fact determines that the failure to inform the Courbats of the waiver requirement was a deceptive trade practice, then the negligence waiver, along with the underlying contract, will be rendered void, and the Courbats’ negligence claims will be revived. In order to provide guidance on remand, therefore, we hold that it was error for the circuit court in the present matter to apply HRS § 663B-2(a), see supra note 2, which establishes a rebuttable presumption in favor of horseback tour operators that any injury “caused solely by the inherent risk and unpredictable nature of the equine” is not due to the negligence of the tour operator.
HRS § 663B-2(b) provides in relevant part that “[n]othing in [***27] this section shall prevent or limit the liability of an equine activity sponsor . . . if the equine activity sponsor, equine professional, or person: . . . (2) [p]rovided the equine and . . . failed to reasonably supervise the equine activities and such failure is a proximate cause of the injury.” The substance of Lisa’s claim revolves around her assertion that Nakoa failed to monitor her approach toward his horse while he was engaged in conversation with another guest; in other words, Lisa claims that Nakoa “failed to reasonably supervise the equine activities” that were the “proximate cause of [her] injury.” Therefore, we hold that, if Lisa is correct, the presumption of non-negligence set forth in HRS § 663B-2(a) would not apply to the Courbats’ claims.
2. If The Trier Of Fact Determines That The Nondisclosure Of The Waiver Was Not A Deceptive Trade Practice, Then The Courbats Validly Waived Their Negligence Claims.
a. The waiver was validly executed.
Citing Krohnert v. Yacht Sys. of Hawai’i, 4 Haw. App. 190, 201, 664 P.2d 738, 745 (1983), the Courbats assert that, because they manifested no clear [***28] and unequivocal acceptance of the terms of the waiver, the waiver cannot be enforced against them. However, pursuant to the following analysis, we hold that, if the trier of fact finds that the failure to inform the Courbats of the waiver requirement was not a deceptive trade practice, then the waiver, in all other respects, was valid.
[HN21] “The general rule of contract law is that one who assents to a contract is bound by it and cannot complain that he has not read it or did not know what it contained.” Leong v. Kaiser Found. Hosp., 71 Haw. 240, 245, 788 P.2d 164, 168 (1990); see also Joaquin v. Joaquin, 5 Haw. App. 435, 443, 698 P.2d 298, 304 (1985); In re Chung, 43 B.R. 368, 369 (Bankr. D. Haw. 1984); In re Kealoha, 2 B.R. 201, 209 (Bankr. D. Haw. 1980). Furthermore, “‘[p]arties are permitted to make exculpatory contracts so long as they are knowingly and willingly made and free from fraud. No public policy exists to prevent such contracts.'” Fujimoto v. Au, 95 Hawai’i 116, 156, 19 P.3d 699, 739 (2001) (some brackets omitted) (quoting Gen. Bargain Ctr. v. Am. Alarm Co., Inc., 430 N.E.2d 407, 411-12 [*265] [**438] (Ind. Ct. App. 1982)). [***29] “[S]uch bargains are not favored, however, and, if possible, bargains are construed not to confer this immunity.” Fujimoto, 95 Hawai’i at 155, 19 P.3d at 738. Therefore, as a general rule, “‘[e]xculpatory clauses will be held void if the agreement is (1) violative of a statute, (2) contrary to a substantial public interest, or (3) gained through inequality of bargaining power.'” 95 Hawaii at 156, 19 P.3d at 739 (quoting Andrews v. Fitzgerald, 823 F. Supp. 356, 378 (M.D.N.C. 1993)).
The Courbats have not alleged that any of the terms of the waiver, or the use of a waiver by the Ranch, violates a statute; on the contrary, the Courbats concede that waivers are an acceptable method by which tour operators may seek to limit their liability in response to rising insurance and litigation costs.
In Krohnert, the ICA defined the public interest
as involving some or all of the following characteristics:
[1] It concerns a business of a type generally thought suitable for public regulation.
[2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often [***30] a matter of practical necessity for some members of the public.
[3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.
[4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.
[5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.
[6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller of the service, subject to the risk of carelessness by the seller or his agents.
4 Haw. App at 199, 664 P.2d at 744 (finding under this test that the exculpatory clause contained in a contract for marine surveying was permissible) (brackets omitted) (quoting Lynch v. Santa Fe Nat’l Bank, 97 N.M. 554, 627 P.2d 1247, 1251-52 (N.M. Ct. App. 1981) [***31] (holding that services of escrow agents in New Mexico were not in the nature of a public service so as to render an exculpatory clause unenforceable) (quoting Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 383 P.2d 441, 445-46, 32 Cal. Rptr. 33 (Cal. Ct. App. 1963) (declaring invalid as against the public interest an exculpatory clause for future negligence required for admission to a public research hospital))); see also 15 Corbin on Contracts § 85.18 (2003 & Supp. 2005) (summarizing a similar test commonly used by courts and noting that courts tend to enforce exculpatory clauses for recreational activities under the test). 12 Entities that have been found to fall under the public interest doctrine, rendering exculpatory clauses void, include common carriers, see Adams Express Co. v. Croninger, 226 U.S. 491, 509, 33 S. Ct. 148, 57 L. Ed. 314 (1913); Shippers Nat’l Freight Claim Council, Inc. v. Interstate Commerce Comm’n, 712 F.2d 740, 746 (2d Cir. 1983); Clairol, Inc. v. Moore-McCormack Lines, Inc., 79 A.D.2d 297, 309-10, 436 N.Y.S.2d 279 (N.Y. App. Div. 1981), and hospitals, see Tunkl, 383 P.2d at 447; Smith v. Hosp. Auth. of Walker, Dade & Catoosa Counties, 160 Ga. App. 387, 287 S.E.2d 99, [*266] [**439] 101 (Ga. Ct. App. 1981); [***32] Belshaw v. Feinstein, 258 Cal. App. 2d 711, 65 Cal. Rptr. 788, 798 (Cal. Ct. App. 1968).
12 Courts have upheld exculpatory clauses relating to car racing, see Cadek v. Great Lakes Dragaway, Inc., 843 F. Supp. 420 (N.D. Ill. 1994); Barbazza v. Int’l Motor Sports Ass’n, 245 Ga. App. 790, 538 S.E.2d 859 (Ga. Ct. App. 2000), snow skiing, see Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334, 35 P.3d 383 (Wash. Ct. App. 2001), skydiving, see Scrivener v. Sky’s The Limit, Inc., 68 F. Supp. 2d 277 (S.D.N.Y. 1999), and horseback riding, see Street v. Darwin Ranch, Inc., 75 F. Supp. 2d 1296, 1299 (D. Wyo. 1999) (finding that “recreational trail rides are neither of great importance to the public, nor a practical necessity to any member of the public”).
Applying these factors to the present matter, we determine that the public interest here is not at stake: recreational activity tours are not generally [***33] suitable to public regulation, in the manner of common carriers, nor of great importance to the public, nor of an essential nature, in the manner of medical care, such that the provider’s bargaining power is greatly enhanced over any member of the public seeking their services.
Finally, as the United States District Court for the District of Hawai’i noted, in considering negligence waivers in the context of recreational activity, while such waivers may be contracts of adhesion, in that they are presented on a “take-it-or-leave-it” basis, they are not unconscionable, but “are of a sort commonly used in recreational settings” and “are generally held to be valid.” Wheelock v. Sport Kites, Inc., 839 F. Supp. 730, 736 (D. Haw. 1993). [HN22] “[C]ontracts [of adhesion] are ‘unenforceable if two conditions are present: (1) the contract is the result of coercive bargaining between parties of unequal bargaining strength; and (2) the contract unfairly limits the obligations and liabilities of, or otherwise unfairly advantages, the stronger party.'” Fujimoto, 95 Hawai’i at 156, 19 P.3d at 739 (quoting Brown v. KFC Nat’l Mgmt. Co., 82 Hawai’i 226, 247, 921 P.2d 146, 167 (1996)); [***34] see also Wheelock, 839 F. Supp. at 735 (“[A]dhesion contracts are fully enforceable provided that they are not unconscionable and do not fall outside the reasonable expectations of the weaker or adhering party.”). Unequal bargaining strength “involves the absence of alternatives; specifically whether the plaintiffs were ‘free to use or not to use’ [the] defendant’s . . . services.” Krohnert, 4 Haw. App at 199, 664 P.2d at 744 (quoting Lynch, 627 P.2d at 1250). These conditions are generally not germane in the recreational waiver context. In the context of a recreational sport or adventure activity, freely undertaken for pleasure, “coercive bargaining” and “an absence of alternatives” are terms that hold little meaning.
In the present matter, Lisa read through and responded to queries contained in the waiver form and had no further questions or concerns regarding the contents before she signed it. Steven conceded that he routinely relied on his wife to review documents before signing them and that he knew he was waiving rights when he signed the form. The record demonstrates that the Courbats were given adequate time and opportunity [***35] to fully review the waiver presented to them before they signed it and that both knew that by signing it they were waiving legal rights in return for being allowed to participate in the ride. In short, there is no evidence of coercion. By signing the waiver form, they demonstrated that they agreed to its terms, and by reading it, or, in Steven’s case, in relying on the advice of his wife, demonstrated knowledge of its contents. Moreover, they had signed similar waivers that week for another activity and were familiar with what they represented. Accordingly, we hold that, if the trier of fact determines that the nondisclosure of the waiver was not a deceptive trade practice, the Courbats’ waiver was valid.
b. The scope of the Courbats’ waiver does not extend beyond negligence claims.
The language of the waiver, see supra note 3, releases the Ranch and its agents and holds it harmless “from loss or damage to property or injury to [the undersigned] . . . resulting from [the undersigned] . . . being a spectator or participant or while engaged in any such activity in the event[-]related facilities.” However, because [HN23] “‘[e]xculpatory provisions are not [***36] favored by the law and are strictly construed against parties relying on them,'” the effect of the broad exculpatory language contained in the Ranch’s waiver should be construed to limit the waiver’s scope to simple negligence claims; it does not protect the Ranch against its own gross negligence or willful misconduct. Fujimoto, 95 Hawai’i at 156, 19 P.3d at 739 (quoting Andrews, 823 F. Supp. at 378); see also Wheelock, 839 F. Supp. at 736 (interpreting the reasoning in Krohnert to conclude that to allow an exculpatory clause to extend to gross negligence would violate [*267] [**440] the public interest, rendering the clause void).
IV. CONCLUSION
In light of the foregoing analysis, we vacate the circuit court’s May 13, 2002 judgment in favor of the Ranch and against the Courbats and remand for further proceedings consistent with this opinion.
DISSENT BY: DUFFY
DISSENT
DISSENTING OPINION BY DUFFY, J., IN WHICH ACOBA, J., JOINS
I respectfully dissent. In my view, no reasonable person would find that the recreational tour operator’s failure to disclose the waiver requirement of Dahana Ranch, Inc. during negotiation of the horseback riding [***37] activity was a deceptive trade practice under HRS § 480-2. The Courbats concede that waivers are an acceptable method by which recreational tour operators and sponsors may seek to limit their liability in response to rising insurance and litigation costs, and admit that they were required to sign such a waiver before participating in a snorkeling activity earlier during the same Hawai’i vacation. Applying the Cliffdale Assoc. test to the undisputed facts in this case involving the inherently dangerous activity of horseback riding, I respectfully submit that the tour operator’s failure to disclose the waiver requirement of Dahana Ranch, Inc. during negotiation of the horseback riding activity with the Courbats was not a material omission implicating a deceptive trade practice under HRS § 480-2. I would thus affirm the circuit court’s grant of summary judgment in favor of Dahana Ranch, Inc.
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If you really are bad, a judge will figure out a way to void your release
Posted: November 12, 2012 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Kentucky, Release (pre-injury contract not to sue) | Tags: Appeal, Bull, Bull Riding, Charles, Defendant, Gross negligence, Kentucky, Negligence, Plaintiff, Release, Ring of Fear, Rodeo, United States, Waiver Leave a commentDavis, v. 3 Bar F Rodeo, 2007 Ky. App. LEXIS 423
Appellate court sends back to trial court on issue that release did not protect against Gross Negligence, and the deceased did not have time to read the release.
I guess I knew that these contests happened. I grew up in a rural community where we had greased pig contests, but nothing like this. The plaintiff entered a contest where he went into a rodeo and stood in a white circle. There were other participants also standing in circles. A bull was released into the ring. The last person standing in a white circle won. Prize money was $50.00. The contest was called the “Ring of Fear.” The bull struck the deceased bursting his liver.
$50.00?
The plaintiff’s spouse sued. The deceased prior to entering the ring signed a release. The release was comprehensive but apparently had all participant signatures on one form. Allegedly, the deceased was not given any time to read the release.
Prior to the bull being released into the ring, the bull was allegedly provoked by jabbing him with a wooden object and beating sticks against the bull’s cage. (I’m guessing PETA is not big in this part of Kentucky…….)
The trial court dismissed the complaint based on the release signed by the deceased. The plaintiff appealed.
Summary of the case
The appellate court first looked at the Kentucky Farm Animals Activities Act (FAAA) KRS 247.401 through KRS 247.4029. The court found the statute was applicable to the facts in this case. The court also found that the warnings found in the act provided immunity to defendants who posted the warnings. Failure to post the warnings did not create a claim of negligence per se or strict liability as the plaintiff argued. Failing to post the warnings simply failed to provide the immunity under the statute.
The court also found that the FAAA allowed farm animal event sponsors to sue the act if they posted the warning signs.
The court found that the FAAA had no duty to reduce or eliminate the inherent risks found in farm animal activities. The court also found that act did not protect sponsors that intentionally mistreat or aggravate a farm animal. That would be the antithesis of the purpose of the act.
The court then looked at the issue of the release and stated,
While agreements to exempt future liability for either ordinary or gross negligence are not invalid per se, they are generally disfavored and are strictly construed against the parties relying upon them. [Emphasize added]
Although not a definitive statement on the issue, it appears that under Kentucky law, a release will protect a defendant against a claim of gross negligence.
Releases in Kentucky will be upheld if they meet the following tests 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.
From a legal point, this is an extremely broad language about how a release will be interpreted by the courts.
The court then examined the release and found no language the court could interpret that could be used to say the release was going to stop a gross negligence claim. The court also found that intentionally mistreating the bull would “at the very least constitute gross negligence.”
The court followed up by stating that infuriating a bull would constitute willful of wanton conduct which “a party may not contract away any liability through a release.”
Finally, the court looked at a laundry list of additional issues raised by the plaintiff:
..that Appellees should have inquired as to the abilities of the participants to participate in the Ring of Fear. Finally, Susan contends that Charles did not have an opportunity to read the release prior to signing it.
The court stated that those were all factual issues to be resolved by a trier of fact.
So Now What?
Although the issue that a release in Kentucky may protect against gross negligence is great as well as the broad language that can be used in a release in Kentucky, the last two issues mentioned by the court allow numerous ways to void releases in Kentucky and place a burden upon the business or program operating in Kentucky and using a release.
That is requiring an outfitter to see if a guest has the sufficient skills, ability and desire to undertake the activities and making sure the person signing a release has sufficient time to read the release.
Solving the problems of the Defendant
First, I would have raised an assumption of risk argument, although I am not sure of the status of A/R in Kentucky. However, I believe that it is pretty obvious that you can get gored by a bull in a ring. The deceased and the plaintiff were going to the event for a rodeo so it had to have been obvious, to some extent.
Second by having separate releases rather than one sign-up sheet, the argument that the deceased did not have time to read the release could have been diffused if not eliminated. If each person has a sheet of paper, then there is no rush to get all the signatures on one sheet of paper.
Still to be resolved
The issue that the defendant did not enquire as to the ability of the participant to participate in the Ring of Fire is an open-ended opportunity for every lawsuit in Kentucky to go to trial.
How are you going to determine the requirements for a participant to undertake an activity? No matter what system, test or determination you make, you did not do a good job if someone is hurt or injured on your trip. Nor can you use medical information to determine if someone can participate because unless you are a physician, that would require diagnosis which you cannot do.
The only solution you can come up with to create a system so the participants can self-determine if they are able to participate. Show a video or create a checklist. Make sure your release states that the person has watched the video, seen your website and reviewed the checklist and understands it is their responsibility to determine if they are able to participate in the activity.
This could be a nightmare in Kentucky.
What do you think? Leave a comment.
|
James H. “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 eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,
Outdoor Recreation Insurance, Risk Management, and Law
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Equine laws stop suit against horse, outfitter still sued.
Posted: October 31, 2012 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Montana | Tags: Equestrianism, Equine, Horse, Law, Montana, MT, Trail Ride, Trail riding Leave a commentThose familiar with the legal system are more likely to sue, and physicians are very familiar with the system.
The plaintiff and her family went to Montana to vacation and rented horses from the defendant. During the ride, the plaintiff fell off her horse. The article describes numerous damages and loss of income claims before getting to the legal issues of the case. I suspect the plaintiff’s attorney is pushing this issue or even issued a press release to validate to the jury pool how valuable this claim is. (Jury Pool is the group of potential jurors who could be called for a trial.)
Before the trail ride the plaintiff told the guide she had previous experience. Allegedly, she told the guide before the start that her horse was difficult to control. During the ride, her horse “crowded” the horse in front of her. “Eventually, the horse in front of Plaskon [plaintiff] got tired of being crowded and kicked at her horse, which started bucking and threw her off.” The allegations went on to claim:
She claims the lodge, and outfitters were negligent and displayed “willful or wanton disregard” for her safety. Along with seeking actual damages for her medical costs and loss of income, [plaintiff] is asking to be awarded punitive damages.
The defense attorney responded to the reporter by stating that the plaintiff “…signed a waiver of liability and indemnity agreement prior to going on the horseback ride.”
The first problem not brought up in this article is Montana has two statutes that seem to prohibit the use of a release, Mont. Code Anno., § 27-1-701 Liability for negligence as well as willful acts. Which states:
Except as otherwise provided by law, each person is responsible not only for the results of the person’s willful acts but also for an injury occasioned to another by the person’s want of ordinary care or skill in the management of the person’s property or person except so far as the person has willfully or by want of ordinary care brought the injury upon the person.
“Want of ordinary care or skill” is a term that could be closely defined as negligence.
And Mont. Code Anno., § 28-2-702 Contracts that violate policy of law — exemption from responsibility.
All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.
This statute says that releases, or waivers, are void in Montana. (See States that do not Support the Use of a Release.) And although in most states, a definition of willful injury would mean greater than normal negligence, the statute later says negligence.
Montana does have an equine liability statute that may provide a defense in this case.
Where is this going? Its litigation so that it can go anywhere. Probably, the case will settle, but possibly we may see this posted here after a trial or hearing, and the case is appealed. Either way there was a probably a lack of understanding or too much involvement in the legal profession. (See People familiar with the legal system are more likely to sue) Physicians between training and experience are very familiar with the legal system and in some surveys is the most frequent group of plaintiffs in the US. Lawyers and people with lawyers in their family are also very likely to sue. Be aware when dealing with groups of people familiar with the legal system.
Furthermore, understand what state you are in and what laws may apply to your situation.
See Chico Hot Springs, outfitter sued by surgeon who fell from horse
What do you think? Leave a comment.
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Lying in a release can get your release thrown out by the court.
Posted: July 11, 2011 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Release (pre-injury contract not to sue) Leave a commentSmoky, Inc. v. McCray et al., 196 Ga. App. 650; 396 S.E.2d 794; 1990 Ga. App. LEXIS 1023
Don’t lie!.
This Georgia case looks at the issues when the defendant misleads or lies to the guest and that lie is material to the heart of the case. The plaintiff was taking horseback riding lessons from the defendant. The plaintiff sued for injuries she received during a riding lesson. The defendant filed a motion for summary judgment which was granted by the trial court based on the release (exculpatory contract) signed by the plaintiff.
The plaintiff appealed. The court reviewed the release and found the release contained statement that the defendant did not have liability insurance and that was the reason why the release was needed.
“IT IS EXPRESSLY UNDERSTOOD by the undersigned that Burgundy Ridge Farms, Inc., Peter W. Nathan, Joseph and Kathleen Patton, have no insurance covering equestrian activities and that the undersigned would not be permitted to engage in equestrian activities without this release whereby the undersigned irregardless of fault, agrees to fully release Burgundy Ridge [*209] Farms, Inc., Peter W. Nathan, Joseph and Kathleen Patton and their employees and agents from any and all responsibility as a result of accident or injury.”
Of course after her injury the plaintiff learned the defendant did have insurance. Originally the defendant did not have insurance, however after getting insurance the defendant continued to use the release stating the defendant had no insurance.
The appellate court held that the actions of the defendant were fraudulent misrepresentation. Fraudulent misrepresentation was defined by the court as:
…elements of fraudulent misrepresentation rendering a contract voidable are: (1) there must be a statement of fact which is untrue; (2) the false statement must be made with intent to defraud and for the purpose of inducing the other party to act upon it; and (3) the other party must rely on the false statement and must be induced thereby to act to his injury or damage.
Because under Georgia and most other state laws, exculpatory contracts (releases) are not favored, releases are strictly construed against the party seeking to enforce the release. That means that any issue interpreting the release will be ruled in favor of the plaintiff attempting to get the release thrown out. Here the court looked at whether the release violated public policy and found
… exculpatory contracts have been declared void on public policy grounds: a contract arises out of a business generally thought suitable for public regulation; the party seeking exculpation is engaged in performing a service of great importance to the public; the party seeking exculpation holds itself out as willing to give reasonable public service to all who apply; and the party invoking exculpation possesses a decisive advantage of bargaining strength.
Although the court examined the public policy argument, the ultimate decision point was the fact the release was signed based on a misstatement of fact. The fact was the defendant did have insurance when the release said the defendant did not have insurance.
There can be no question that a statement that the defendants have no insurance protection is highly relevant to a reasonable student’s decision to sign a contract which allocates to the student the losses arising out of equestrian activities.
When the party seeking an exculpatory contract includes in the contract a false statement about a fact which is relevant to a reasonable person’s decision whether to execute a release allocating losses, the principles of contract law do not weigh heavily in favor of enforcement of the exculpatory contract, and the goals of tort law weigh against enforcement of the exculpatory contract.
The court then went on and stated:
If we were to enforce an exculpatory contract based on a false statement of fact relevant to a reasonable person’s decision whether to execute the release, we would open the door to sharp practice. Misstatements by the party seeking the release raise the strong suspicion of inequitable motive and overreaching and of lack of good faith or fair dealing on the part of the party seeking the release and of oppression of the party executing the release.
The court held the misstatement was enough to throw out the release. The decision of the lower court was reversed and the case was sent back down for trial.
So? Summary of the case
Courts are always looking for ways to void a release. The law requires it. Releases are not favored by the court and to be strictly construed. Any mistaken in the document, in any contract, can void the release.
So Now What? (Motivational get them to do something post)
Releases need to be written correctly. Make sure that:
- · Your release is written to match the facts and needs of your operation.
- · Your release has not facts or statements that are not 100% correct
- · Your marketing and advertising do not make statements that are contrary to your release.
Your release is not a standalone document. It must conform to your other contracts and your insurance policy. It must be written for your operation and your guests. And it must be part of your overall marketing and risk management plan.
What do you think? Leave a comment.
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A specific statute, a badly written release and an equine liability statute sink instructors and business in horse riding accident.
Posted: June 6, 2011 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Release (pre-injury contract not to sue) Leave a commentPowers v. Mukpo et al., 12 Mass. L. Rep. 517; 2000 Mass. Super. LEXIS 566
This case could have been easily beaten if just one of the arguments could have been won. Rely on a Good Release not a bad statute!
This is a very confusing decision with the court first throwing out defenses, then allowing them then throwing them out again.
In Powers v. Mukpo et al., the plaintiff sued everyone involved in his accident. The parties and their relationship create a complicated case to understand the facts. The decision covers every aspect of the case from start to finish and creates a very confusing decision. I’ll start by explaining the parties and the facts of the case and then get into the legal discussion.
Parties
The Plaintiff Powers took horseback riding lessons from Windhorse Dressage Academy. Windhorse was using property and the accident took place on property known as Woodlock Farm. Windhorse was owned by Mukpo. Whitman was the instructor teaching Powers who was employed by Windhorse. Woodlock is owned by DeCicco’s.
DeCicco’s were dismissed from the suit by an earlier motion for summary judgment.
Facts
The plaintiff, a novice rider, was hurt when the horse he was riding reared and fell over on him. This had occurred once before and Mukpo knew of that incident. Supposedly this had something to do with arthritis the horse had.
Massachusetts has a statute ALM GL ch. 128, § 2B Operation of Riding Schools and of Certain Stables Licensed and Regulated. That requires all riding schools and instructors to be licensed. Whitman, Mukpo and Windhorse were not licensed at the time of the accident.
Summary of the legal arguments.
Release
The first issue the court addressed was the release. The release only referenced “Woodlock Farm, its instructors, and agents.” Based on this language, the court held that only Mukpo could be protected by the release. Mukpo was an agent of Woodlock in this case. Whitman and Windhorse were not covered in the release.
Under Massachusetts law, a release is void if the defendant fails to follow the statute affected by the release. Basically this is similar to a negligence per se argument. If you don’t follow the law, you can’t avail yourself of the defenses that may be available. Whitman was excluded from the benefit of the release, if she had been protected by the release. (Why this argument was necessary I’ve not determined. However it does lead to good educational information.)
Al although Whitman was not protected by the release because she was not a named party covered in the release, she was also not protected by the release because she had violated a state statute affecting her profession.
In other words, since Whitman’s professional judgment was involved, and because regulations are generally tailored to ensure that decisions such as this are made only by qualified instructors, Whitman’s violation of her statutory duty precludes enforcement of the release to shield her from liability.
Mukpo, Whitman and Windhorse did not have a release. They relied upon the release created by the owner of the stable and land, Woodlock. Because the language of the release was not broad enough and because Windhorse was operating on the land under a contract Windhorse was not an agent of Woodlock. Mukpo and Whitman where employees of Windhorse so thus they could not be agents or employees of Woodlock also. So now, under a different argument, none of the defendants in this motion could be protected by the release.
The court then stated, Whitman could be considered an agent of Woodlock, however because she was not licensed, she could not be protected by the release.
Equine Statute
The court finally looked at whether the Massachusetts Equine Statute provided protection to any of the defendants. G.L.c. 128, § 2D(b) Equine Activities; Sponsors; Liability; Required Warnings; Definitions. The court stated the statute protected equine professional from suits over injuries resulting from the inherent risks of equine activity.
However, the statute also has a section that excludes protection if the equine professional did not determine if the ability of the student was sufficient to ride the horse involved. The statute required the instructors to determine if the student’s skills matched the horse. Here the court found the defendants had not done their diligence, had not met the statute. The relevant statute section states:
Nothing in subsection (b) shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person:
…..
(ii) provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity, and determine the ability of the participant to safely manage the particular equine based on the participant’s representations of his ability;
The plaintiff was a beginning or novice rider and the horse had a known propensity to rear. The earlier time the horse had reared an experienced rider had been able to jump off the horse and avoid being crushed by the horse when it fell over backwards. Here the rider was a beginner without the necessary experience to know what to do or how to escape from the situation.
Because the defendants had not met the requirements of the Massachusetts Equine Liability Act they could not be protected by the act.
The court held that the defendants’ motion for summary judgment was denied.
So Now What?
This case is very confusing to read, however it does provide some insight, most of which I’ve covered several times in the past.
1. Equine liability Acts have very limited value. No matter how they are written the acts of the horse can always be attributed to the acts of a human and a lawsuit can be made by an injured plaintiff. In this case, the defendants failed to meet the requirements of the act.
I’ve said it several times before. Equine Liability Acts are 100% effective; no horse had been sued since they were enacted. However suits against horse owners and trainers, stables and riding schools are still going up.
2. No matter who you are, make sure you are covered by a release. Make sure when you go to work for someone that very specifically in the release you or your class of people are protected. Make sure that if you are part of a class of people that your class is directly named in the release also.
By class I mean if you are an employee; make sure the release says your employers name and all employees. If you are an independent contractor the release must name the person who has hired you and contractors and/or agents.
3. Have your release written by a professional. This release might have been, however it was written for people who had very little to do the lawsuit and could not be used to protect them. The release protected the people named in the release.
Hire an attorney who understands your operation the risks of your operation and what needs to be covered and protected. If Mukpo or Windhorse had hired a knowledgeable attorney to review this release she would have known to be licensed and would have a release that protects her and her employees.
4. Never ever, never, ever, never ever violate a statute. Never violate a statute that was designed to cover you or protect the people you work with.
In Short.
A. Buy a good insurance policy that will protect you and your employees and any agents or contractors you hire.
B. Make sure you meet or surpass any state laws.
C. Have a professional release written to protect you and your employees.
D. Make sure you understand the laws of the state you operate in so that understand what you can and cannot do.
E. Never rely on Equine Statutes.
What do you think? Leave a comment.
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Powers v. Mukpo et al., 12 Mass. L. Rep. 517; 2000 Mass. Super. LEXIS 566
Posted: June 6, 2011 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals Leave a commentPowers v. Mukpo et al., 12 Mass. L. Rep. 517; 2000 Mass. Super. LEXIS 566
Robert Douglas Powers v. Diana Mukpo et al. 1
1 Juanita Whitman, Arlyn Lampie DeCicco, and Alfred DeCicco. The DeCiccos, however, are no longer parties to this suit; summary judgment was allowed in their favor last year. See Powers v. Mukpo, Memorandum of Decision and Order on Defendants’ Motion for Summary Judgment, (Botsford, J.) September 22, 1999 [10 Mass. L. Rptr. 535].
97-4891
SUPERIOR COURT OF MASSACHUSETTS, AT MIDDLESEX
12 Mass. L. Rep. 517; 2000 Mass. Super. LEXIS 566
September 29, 2000, Decided
October 2, 2000, Filed
DISPOSITION: [*1] Defendants’ motion for summary judgment DENIED.
JUDGES: Julian T. Houston, Justice of the Superior Court.
OPINION BY: Julian T. Houston
OPINION
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This action concerns personal injuries sustained by the plaintiff, Robert Douglas Powers (“Powers”), when the horse he was riding reared and fell backwards on top of him. At the time, Powers was receiving horseback riding lessons from Windhorse Dressage Academy (“WDA”) on a property in Sherborn, Massachusetts known as Woodlock Farm. Powers has brought negligence claims against Juanita Whitman (“Whitman”), a former WDA instructor, and Diana Mukpo (“Mukpo”), owner of the WDA. On June 8, 2000, the defendants filed a motion for summary judgment pursuant to Mass.R.Civ.P. 56, contending that they are shielded from liability because Powers signed a release, and because they are protected by G.L.c. 128, § 2D (1991 ed. & Supp. 2000), the Massachusetts Equine Statute. For the reasons set forth below, the defendants’ motion for summary judgment is DENIED.
BACKGROUND
The summary judgment record reveals the following facts; any factual disputes that exist have been resolved in the [*2] light most favorable to Powers. The WDA is a business involved in training dressage horses, teaching horseback riding, and importing horses for sale in the United States. At all times relevant to this case, WDA was located at Woodlock Farm, a fifteen-acre property in Sherborn, Massachusetts that is owned by Arlyn and Alfred DeCicco. On the property is a large horse barn with thirty stalls, an indoor riding arena, two outdoor arenas, fifteen turn-out paddocks, and a residence where the DeCiccos live. The DeCiccos operate a licensed riding school at Woodlock Farm, and lease portions of the barn to persons who conduct their own horse-related businesses from the space they lease; WDA was one of those businesses.
WDA and the DeCiccos entered into a written lease agreement on or about May 1, 1996. The agreement provides for the lease of individual stalls by WDA for $ 500 per month per stall; the fee covers bedding, shavings, hay, grain, and the use of paddocks. Under the lease, however, WDA is responsible for maintenance of the stalls and care of the horses boarding in them. The lease states that Woodlock Farm will make available “arena time” and indoor as well as outdoor areas to accommodate [*3] the lesson and training requirements of the WDA, but goes on to state that Woodlock Farm “shall not charge WDA teachers a percentage of income from lessons or training.” Thus, aside from sharing the same location, Woodlock Farm and the WDA riding schools operate completely independently of each other.
In 1996, the riding school operated by the DeCiccos was licensed by the Commonwealth, as were the riding instructors they employed. WDA, however, at least as of September 1996, was not licensed as a riding school, and neither Whitman nor Mukpo were licensed as a riding teachers. Whitman and Mukpo did not become licensed until the spring of 1997.
The horse involved in this incident, Take-A-Chance, was originally brought to Woodlock Farm by his owner, Rachel Williams, in or about August or September 1996. Williams made an arrangement with Mukpo and Whitman pursuant to which they would stable the horse at Woodlock Farm, Whitman would give riding lessons to Williams, and Whitman and Mukpo could use the horse for instructional purposes with other students.
Take-A-Chance had thrown a rider on at least one prior occasion. On July 28, 1996, while Take-A-Chance was being ridden by an experienced [*4] riding instructor, the horse reared up sharply on his hind legs and fell over backwards. Fortunately, the instructor’s horsemanship skills enabled her to jump off safely before the horse landed on top of her. Mukpo learned of the mishap shortly afterwards.
Several veterinary examinations of the horse conducted since 1995 revealed that the horse had arthritis in both hocks–joints in the animal’s hind legs that correspond loosely to the human ankle. The condition caused stiffness, pain, and lameness in the horse. The horse was treated periodically for the condition with injections. In August 1996, Whitman suggested a hock injection might be in order because she believed the horse was experiencing pain and stiffness. On September 12, 1996, a veterinary examination revealed lameness on the horse’s right side. As a result, a veterinarian injected the horse’s right hock and prescribed anti-inflammatory medication for stiffness.
Beginning in June or July 1996, Powers, a novice, began taking horseback riding lessons from Whitman. Powers paid Whitman directly for the lessons. Powers separately paid Mukpo for the lease of the horse used in his lessons; the lease cost was $ 630 per month.
[*5] On June 22, 1996, Powers signed a release in connection with his receiving instruction at Woodlock Farm. The form Powers signed bore a logo of Woodlock Farm and referenced only Woodlock Farm in its text. The form states in relevant part as follows:
RELEASE FORM
PLEASE READ THIS DOCUMENT CAREFULLY AND DO NOT SIGN IT UNLESS YOU FULLY UNDERSTAND IT.
Student’s Name
I recognize the inherent risks of injury involved in horseback riding generally and in learning to ride in particular. In taking lessons at Woodlock Farm, I assume any such risk of injury and further, I voluntarily release Woodlock Farm, its instructors, and agents from any responsibility on account of any injury I or my child or ward may sustain while receiving instruction or while riding in connection therewith, and I agree to indemnify and hold harmless Woodlock Farm, its instructors, and agents on account of any such claim.
-WARNING-
Under Massachusetts Law, an equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities, pursuant to Chapter 128, [*6] Section 2D of the General Laws.
Student Date
Powers printed his name on the top line of the release form after “Student’s Name,” and signed the release on the bottom line after “Student.” On the copy of the release form in the summary judgment record, the initials “WDA” and “JW” have been handwritten near the top of the form. Powers testified in his deposition that he did not know if these initials were on the form at the time he signed it.
On September 20, 1996, Powers came to Woodlock Farm for a riding lesson with Whitman. At Whitman’s direction, he mounted Take-A-Chance. Moments after Powers mounted, the horse reared on his hind legs and fell back on top of Powers, causing him very serious hip and back injuries.
DISCUSSION
[HN1] Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226, 232, 676 N.E.2d 801 (1997). [HN2] A moving party which does not bear the burden of proof at trial is entitled to summary judgment if it submits affirmative evidence, unmet by countervailing [*7] materials, that either negates an essential element of the nonmoving party’s case or demonstrates that the nonmoving party has no reasonable expectation of proving an essential element of its case. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991).
The court first turns its attention to the validity of the release in light of Whitman and Mukpo’s failure to obtain licenses. Concluding that only Mukpo may benefit from the release, the court then considers Mukpo’s claim that she is shielded from liability under its terms. Determining that the release language does not protect Mukpo, the court next considers Whitman’s and Mukpo’s claim of immunity under the Massachusetts Equine Statute, finally concluding that a genuine factual issue exists requiring the denial of Whitman’s and Mukpo’s motion for summary judgment.
I. Enforceability of the Release Against Unlicensed Instructors
A. Juanita Whitman
Since Whitman did not obtain a license to give horseback riding lessons, she cannot benefit from the release signed by Powers. [HN3] “No person shall hold himself out to be a horse riding instructor for hire without being licensed for [*8] such purpose by the commissioner.” G.L.c. 128, § 2D (1991). [HN4] A release may not shield a defendant from liability where the defendant has violated a statutory duty to obtain a license. See Henry v. Mansfield Beauty Academy, Inc., 353 Mass. 507, 511, 233 N.E.2d 22 (1968). In Henry, the plaintiff, who had signed a release form, sustained injuries when receiving services at a beauty school. Henry, 353 Mass. at 510. The Supreme Judicial Court ruled that the beauty school lost the protection of the release due to its violation of a statute requiring the registration of all students. Id. at 511.
Whitman contends, however, that she is an experienced instructor who has worked for many years outside of Massachusetts. Whitman contends, in essence, that her failure to obtain a license does not causally relate to Power’s injury; that he would have been injured whether or not she had obtained a license. Whitman cites to Vallone v. Donna, 49 Mass. App. Ct. 330, 729 N.E.2d 648 (2000), to support her position. However, Vallone is inapposite as applied to Whitman. In Vallone, an ice skater who signed a release sustained injuries [*9] in a fall caused by a soft spot in the ice of a skating rink. 729 N.E.2d at 650. The skater sued the rink owners and claimed that the release was invalid because the owners had violated a state building code. 729 N.E.2d at 649. The Appeals Court, nonetheless, ruled that since the code in question did not relate to the maintenance of the surface of the skating rink, the release was enforceable. 729 N.E.2d at 650. The Appeals Court held that [HN5] “violation . . . of a regulation is relevant to the question of negligence only if the risk that materialized was within the contemplation of the regulation.” Id. (quoting Matteo v. Livingstone, 40 Mass. App. Ct. 658, 661, 666 N.E.2d 1309 (1996)).
In this case, the risk that materialized was Powers’ injury after being thrown from a horse during a lesson conducted by Whitman. Whitman made a decision to put Powers on Take-A-Chance knowing the horse suffered from a painful medical condition. Since licensing regulations contemplate, inter alia, that the public receive safe and competent riding instruction, 2 under the reasoning in Henry and Vallone, Whitman cannot claim the protection of the release; the risk that materialized [*10] was within the contemplation of licensing regulations. In other words, since Whitman’s professional judgment was involved, and because regulations are generally tailored to ensure that decisions such as this are made only by qualified instructors, Whitman’s violation of her statutory duty precludes enforcement of the release to shield her from liability.
2 State licensing requirements for instructors in effect in 1996 clearly contemplated protecting the public. Massachusetts regulations required applicants to furnish three references who can attest to the knowledge and skill of the applicant. See 330 Code Mass. Regs. § 16.01(2)(1993). Regulations also delineate three licensing skill levels dependent on the ability of the applicant. See 330 Code Mass. Regs. at 16.01(3). Finally, applicant’s names must be published in a trade journal and comments on their qualifications solicited from the public. See 330 Code Mass. Regs. at 16.01(6). Contrast these regulations with more stringent ones currently in effect. See, e.g., 330 Code Mass. Regs. § 16.02(3)(b), (c) (1997) (requiring applicants to undergo a six month apprenticeship with a licensed riding instructor and to pass a Written examination).
[*11] B. Diana Mukpo
Mukpo stands on a different footing than Whitman. As an owner of a horseback riding school, she was obligated under G.L.c. 128, § 2B to obtain a license. [HN6] However, the regulations in effect in 1996 for riding school operators related exclusively to ensuring the proper care of horses; the regulations do not place any responsibilities on operators to hire licensed instructors. 330 Code Mass. Regs. 16.02 (1993). Only in 1997, the year following Power’s accident, did the regulations change to require that only licensed instructors could provide riding instruction on a riding school’s premises. 330 Code Mass. Regs. 16.03(5)(b) (1997). Therefore, under Vallone, the risk that materialized was not within the contemplation of 1996 regulations pertaining to riding schools, so Mukpo, unlike Whitman, is entitled to receive any benefits afforded by the release.
II. Enforceability of the Release According to Its Terms
Originally, Powers named the DeCiccos, the owners of Woodlock Farm, as defendants in this case. However, this court allowed the DeCiccos’ motion for summary judgment on September 22, 1999. See Powers v. Mukpo, Memorandum of Decision and Order [*12] on Defendants’ Motion for Summary Judgment, (Botsford, J.) September 22, 1999 [1999 Mass. Super. LEXIS 372, 10 Mass. L. Rptr. 535]. The court determined that the release was unambiguous in its protection of the DeCiccos and that they were shielded from all liability under its terms. 1999 Mass. Super. LEXIS 372 at 7, 10. The court also commented, without fully exploring the issue, that the release might be ambiguous in its protection of Whitman and Mukpo because of the circumstances of its execution (Whitman gave Powers the release to sign, instead of a representative of Woodlock Farm), and because its language explicitly refers only to Woodlock Farm. 1999 Mass. Super. LEXIS 372 at *9 & n.9. The release explicitly extends protection to “Woodlock Farm, its instructors, and agents.” Nonetheless, neither Whitman, Mukpo, nor the WDA qualify as instructors or agents of Woodlock Farm.
[HN7] Interpretation of this release, as does any contract, presents a question of law for the court to decide. See Freelander v. G & K Realty Corp., 357 Mass. 512, 516, 258 N.E.2d 786 (1970) (citing Governor Apartments, Inc. v. Carney, 342 Mass. 351, 173 N.E.2d 287 (1961)). Powers contends that the release language is clear and unambiguous; that [*13] it protects only Woodlock Farm; and that the release should be interpreted according to its plain meaning. [HN8] An unambiguous contract must be enforced according to its terms. Freelander, 357 Mass. at 516. Mukpo contends that application of the release, given the circumstances under which it was executed, creates an ambiguity, and that she is entitled to summary judgment because extrinsic evidence shows that Powers intended to release Mukpo. 3 [HN9] When an agreement contains ambiguous language, the court must construe it in a manner that effectuates the parties’ probable intent. See Massachusetts Mun. Wholesale Elect. Co., 411 Mass. 39, 45-46, 577 N.E.2d 283 (1991); J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 795, 494 N.E.2d 374 (1986). This intent can be determined by the circumstances surrounding the creation of the agreement. See Merrimack Valley Nat’l Bank v. Baird, 372 Mass. 721, 723-24, 363 N.E.2d 688 (1977). Furthermore:
[HN10] When the written agreement, as applied to the subject matter, is in any respect uncertain or equivocal in meaning, all the circumstances of the parties leading to its execution may be [*14] shown for the purpose of elucidating, but not of contradicting or changing its terms . . . Expressions in our cases to the effect that evidence of circumstances can be admitted only after an ambiguity has been found on the face of the written instrument have reference to evidence offered to contradict written terms.
Keating v. Stadium Management Corp., 24 Mass. App. Ct. 246, 249-50, 508 N.E.2d 121 (1987) (quoting Robert Industries, Inc. v. Spence, 362 Mass. 751, 753-54, 291 N.E.2d 407 (1973)).
3 When Powers was asked in his deposition whether he knew who he was releasing by signing the form, he responded “I guess I don’t know. I really don’t know.” When pressed, however, Powers responded, “I guess I believed I was releasing maybe almost anybody from something but not releasing them from–not completely releasing them [sic].”
Using these principles, the first thing for the court to determine is whether an ambiguity arises when the language of the release is applied to [*15] the subject matter of this case. Once again, the release states:
In taking lessons at Woodlock Farm, I assume such risk of injury and further, I voluntarily release Woodlock Farm, its instructors, and agents from any responsibility on account of any injury I . . . may sustain while receiving instruction or while riding in connection therewith, and I agree to indemnify and hold harmless Woodlock Farm, its instructors, and agents on account of any such claim.
Applying this language to Power’s riding mishap, an ambiguity arguably arises as to whether Whitman is covered because she was an “instructor” giving lessons at Woodlock Farm, although not an actual employee of the Farm. Thus, in a broad sense, Whitman could be considered one of Woodlock Farm’s “instructors” because she gave lessons at that location. Nevertheless, this is irrelevant because, as already discussed, Whitman cannot benefit from the release because she was not licensed.
By contrast, Woodlock Farm and WDA were completely distinct; Mukpo was merely a lessee of Woodlock Farm. Neither Mukpo nor WDA was an “agent” of Woodlock Farms, even in a broad sense; thus, the release language is clear and unequivocal [*16] on this point. [HN11] A contract is not ambiguous simply because litigants disagree about its interpretation. Alison H. v. Byard, 163 F.3d 2, 6 (1st Cir. 1998). Nor does the existence of the initials “WDA,” handwritten in the upper right hand corner of the document, create any ambiguity in the release’s interpretation, even if placed there prior to Power’s signing. While “Woodlock Farms, its instructors, and agents” are released under the operative text, the WDA is simply not covered. Hence, since there is no ambiguity in the release as to its coverage of Mukpo, it must be construed according to its plain meaning. Freelander, 357 Mass. at 516; Alison H. v. Byard, 163 F.3d at 6 ( [HN12] “Under Massachusetts law, ‘where the wording of the contract is unambiguous, the contract must be enforced according to its terms’ ” (citations omitted)). Therefore, resort to extrinsic evidence is inappropriate and the contract must be construed as not including Mukpo within its terms.
Alternately, Mukpo contends that if she is not protected under the release as an actual agent of Woodlock Farms, she is protected under the doctrine of apparent authority. This contention [*17] is without merit. [HN13] Under apparent authority, a principal may be held liable for the acts of another party if the principal creates an appearance that the other party is its agent. Linkage Corp. v. Trustees of Boston University, 425 Mass. 1, 16, 679 N.E.2d 191 (1997). Conversely, Mukpo argues, as an apparent agent, she should be entitled to the protection of Woodlock Farm’s release. Mukpo argues that because she is an apparent agent, she qualifies as an “agent” under the release terms and is shielded from liability. Nonetheless, even if Mukpo can be considered an apparent agent of Woodlock Farms, she cites to no case where the doctrine of apparent authority is applied in this manner. [HN14] The doctrine is used to create liability on the part of a principal, not to protect an agent. See, e.g., Linkage Corp., 425 Mass. at 17. Therefore, the court declines to apply the doctrine in the fashion urged by Mukpo.
III. Whitman and Mukpo’s Potential Immunity under the Massachusetts Equine Statute
Thus far, the court has determined that Whitman is not protected by the release because she was not licensed, and that Mukpo is not protected by the release because [*18] she does not come within its terms. Whitman and Mukpo, however, look to one further source for protection: G.L.c. 128, § 2D(b) (1991 ed. & Supp. 2000), the Massachusetts Equine Statute, which states in relevant part:
[HN15] an equine activity sponsor, an equine professional, or any other person, which shall include a corporation or partnership, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activity and, except as provided in subsection (c), no participant or participant’s representative shall make any claim against, maintain an action against, or recover from an equine activity sponsor, an equine professional, or any other person for injury, loss, damage, or death of the participant resulting from any of the inherent risks of equine activities.
[HN16] Thus, the statute protects “equine professionals” from suit over injuries resulting from the “inherent risks of equine activity.” An “equine professional” is defined, inter alia as “a person engaged for compensation in instructing a participant . . . for the purpose of riding.” G.L.c. 128, § 2D. “Inherent risks of equine activity” include injuries resulting from the [*19] “propensity of equines to behave in ways that may result in injury, harm, or death to persons on or around them.” Id.
Although Whitman and Mukpo fall squarely within the language of this statute, their motion for summary judgment must still be denied. [HN17] An exception to the statute provides that it shall not limit the liability of an equine professional, if such person “provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity, and determine the ability of the participant to safely manage the particular equine based on the participant’s representations of his ability.” G.L.c. 128, § 2D(c)(1)(ii). In this case, Whitman and Mukpo provided Powers, an apparent novice, an arthritic horse which had thrown a rider several months earlier. Thus, a genuine issue of material fact exists as to whether Whitman and Mukpo made “reasonable and prudent” efforts to provide Powers with an appropriate horse, based on his riding ability.
ORDER
For the reasons stated above, it is hereby ORDERED that the defendants’ motion for summary judgment is DENIED.
[*20] Julian T. Houston
Justice of the Superior Court
Date: September 29, 2000
Release stops suit for falling off horse at Colorado summer Camp.
Posted: April 18, 2011 Filed under: Colorado, Equine Activities (Horses, Donkeys, Mules) & Animals, Minors, Youth, Children, Release (pre-injury contract not to sue), Youth Camps | Tags: Appellate Court, Child, Colorado, Gross negligence, Hamill, Minor, Parental Responsibility, Parental Rights, Rock climbing, Summary judgment, Summer Camp Leave a commentHamill v. Cheley Colorado Camps, Inc., 2011 Colo. App. LEXIS 495
I always enjoy it when people with money, sue to get more money…..
In this case, the minor plaintiff fell off a horse and suffered a broken arm. She sued for her damages. What makes this sort of amusing is the minor had attended the camp two prior years. Her mother has signed the release three consecutive times. However, the plaintiff sued.
The allegations in the complaint were the wrangler had inappropriately saddled the horse she rode. This is a classic claim used to get around equine liability acts. Equine liability acts are 100% effective. Since they have been passed no horse has been sued. However, suits against horse owners have increased.
For additional articles about equine (horse) lawsuits and why Equine Liability Acts have little value see: $2.36 M awarded to a boy kicked by horse during inner-city youth program and $1.2 M award in horseback riding fatality in Wyoming.
The district court (trial or first court) granted the defendant camp’s motion for summary judgment. And the Plaintiff appealed. The basis for the appeal was:
she was a minor and her mother did not make an informed decision, the agreement did not extinguish her negligence claims and that disputed material facts preclude the grant of summary judgment on her gross negligence claim.
The first issue the court reviewed was whether the release was valid under Colorado law. The court found there were four tests that had to be met for the release to be valid.
(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.
B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998) (citing Jones, 623 P.2d at 376).
The court found the first two tests were met because recreational activities create no duty to the public and are not necessary for living.
The next test was whether the contract was fairly entered into. This is a case of whether the injured party had the opportunity to go somewhere else or not participate. Whether one party was at the mercy of the other party because of unequal bargaining power. However, again, recreational activities are not something that a parent or participant is forced to undertake. On top of that the mother admitted she voluntarily signed the release…..three times.
More importantly the court found the plaintiff could have attended other camps. She was not forced to attend the defendant camp.
The last test also can be examined multiple ways. First way is, is the agreement plan on its face is it written in such a way that the parties understand what it says or should have understood what it said. Another way is whether the agreement, the release, clearly evidenced the intent of the party’s.
Here you can release one party from negligent conduct as long as the intent of the parties is clearly expressed in the contract. Here the release expressly contained language that the court found was clear to the plaintiff and her mother of the intent of the release.
The agreement sufficiently placed Hamill’s mother on notice that the “[e]quipment used . . . may break, fail or malfunction” and that “counselors . . . may misjudge . . . circumstances.” The breadth of the release persuades us that the parties intended to disclaim legal liability for negligence claims. Indeed, misjudging a situation can amount to negligence.
The classic I now did not understand the release is also looked at this point, and the court rejected that argument.
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 — to govern only conduct outside of Cheley’s control — based on ambiguities not readily apparent within the four corners of the agreement.
The court succinctly summed up its decision about the release stating:
Because the agreement did not implicate a public duty, did not involve an essential service, was fairly entered into, and it plainly expressed the intent to release prospective negligence claims, we hold that the agreement is valid.
The court then reviewed the recently enacted Colorado statute allowing a parent to sign away a minor’s right to sue C.R.S. § 13-22-107. A recent decision by the Colorado Appellate court had thrown out a release signed by a mother because it was not sufficient to meet the requirements of the statute. See Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele which discussed the case Wycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832.
The statute requires the parent who is signing a release for a minor to be voluntary and informed. The court stated that “A parent’s decision is informed when the parent has sufficient information to assess the potential degree of risks involved, and the extent of possible injury.” quoting Wycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832.
Here the mother and the plaintiff knew of the risks because the plaintiff had attended the camp two prior years and had ridden horses those two years.
The final argument was made that the release did not bar claims for gross negligence. However, the court found the complaint and the other documents in the case did not plead any facts giving rise to a claim that would be a gross negligence claim. Under the Colorado law gross negligence is “willful and wanton conduct, that is, action committed recklessly, with conscious disregard for the safety of others.” Nothing in the documents indicated the defendant had acted willfully or wantonly.
One interesting part of this case was a statement quoted in the case from a deposition of the mother. The defendant’s attorney referred to Christopher Reeves, who suffered a fall from a horse becoming a quadriplegic and eventually died from the injuries. The mother answered she personally knew Mr. Reeve. If you want to do a little research, match the names of the parties, and determine who would know other movie stars.
So?
Again and again, and again, make sure you have a well written release. That was the first and best thing done in this case. The release stood up to scrutiny by the trial court and the appellate court.
The next thing is always have good facts. The court pointed out the wrangler checked the saddle two or three times before the plaintiff rode the horse which eliminated the gross negligence argument. Good facts do not mean to only defend yourself when you are going to win. It means to do things right, and you don’t have to worry and if you do have a problem you will win.
Here the wrangler had been well trained in how to deal with the situation and problems of kids at summer camps riding horses. Before the plaintiff was allowed to mount the horse the saddle was checked and double checked.
So Now What?
Hire well, train well and treat well; the three ideas to keep employees part of your defense team. Your employees do not need to lawsuits and not have a lawsuit become a forum for any employee to come back at you.
See 7 Mistakes Made by People, who are called Defendant. Hire good people to begin with. Work hard at hiring people who like people and understand the job. The job is not to show off to little kids about how great a horseman you are, the job is to get kids on horses and have them have a good time. The job is to have the kids leave the ring the same way they entered the ring with a big grin on top of a horse.
Never hire for skills except people skills. You can teach anyone to ride a horse, row a raft or run a ropes course. Finding someone who can remember to double check everything, deal with a problem child and entertain at the same time is a little harder. However, those people are out there, work harder and find them.
7 Mistakes Made by People who are called Defendant.
1. Hire and retain Uncaring Employees: Hire Well, Train Well, and Treat Well
2. Failing to Know Your Customers and why they are buying from you.
3. Failing to Treat Your Customers the Way They Want to Be Treated:
4. Examining the problem from Your Perspective: Your customer sees the problem differently than you. The customer may not even understand the problem.
5. Placing a ridiculous value on principles and pride. Principles & Pride Goethe before a Lawsuit
6. Never know Why you are being sued: Sticking your head in the sand, or passing the problem to a lawyer does not resolve the problem.
7. Forgetting What Your Mother Taught You: If you act like your mother taught you, you won’t be sued.
|
James H. “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 Recreation Insurance, Risk Management and Law.
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.
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Hamill v. Cheley Colorado Camps, Inc., 2011 Colo. App. LEXIS 495
Posted: April 18, 2011 Filed under: Colorado, Equine Activities (Horses, Donkeys, Mules) & Animals, Minors, Youth, Children, Release (pre-injury contract not to sue), Summer Camp | Tags: Cheley Camps, Equine Activities, horseback riding, Release, Star Wars, Summer Camp Leave a commentTo Read an Analysis of this decision see: Release stops suit for falling off horse at Colorado summer Camp.
Hamill v. Cheley Colorado Camps, Inc., 2011 Colo. App. LEXIS 495
Chelsea E. Hamill, Plaintiff-Appellant, v. Cheley Colorado Camps, Inc., a Colorado corporation, Defendant-Appellee.
Court of Appeals No. 10CA0138
COURT OF APPEALS OF COLORADO, DIVISION TWO
2011 Colo. App. LEXIS 495
March 31, 2011, Decided
NOTICE:
THIS OPINION IS NOT THE FINAL VERSION AND SUBJECT TO REVISION UPON FINAL PUBLICATION
PRIOR HISTORY: [*1]
City and County of Denver District Court No. 08CV6587. Honorable Herbert L. Stern, III, Judge.
DISPOSITION: JUDGMENT AFFIRMED.
COUNSEL: Roberts, Levin, Rosenberg, PC, Ross B.H. Buchanan, Bradley A. Levin, Denver, Colorado, for Plaintiff-Appellant.
White and Steele, P.C., John M. Lesback, John P. Craver, Denver, Colorado, for Defendant-Appellee.
JUDGES: Opinion by JUDGE FOX. Casebolt and Loeb, JJ., concur.
OPINION BY: FOX
OPINION
Plaintiff, Chelsea E. Hamill (Hamill), appeals the district court’s grant of summary judgment in favor of defendant, Cheley Colorado Camps, Inc. (Cheley). We affirm the judgment.
I. Facts and Procedural History
Hamill attended summer camp at Cheley in 2002, 2003, and 2004. Before attending camp each summer, Hamill and her parents signed a Liability/Risk Form (the agreement).
In July 2004, when Hamill was fifteen years old, she fell off a Cheley horse and broke her arm. Hamill sued Cheley for negligence and gross negligence, arguing that a Cheley wrangler had inappropriately saddled the horse she rode. The district court granted Cheley’s motion for summary judgment on the two negligence claims, ruling that although Hamill was a minor, the agreement barred her claims and that there was no gross negligence as a matter [*2] of law. 1
1 In addition, the district court determined that whether a saddle can slip due to negligence, or because of animal behavior, presented issues of fact under section 13-21-119, C.R.S. 2010, the equine immunity act. Because of its ruling on the agreement, however, the court also ruled that the equine act claim need not be submitted to a jury.
Hamill appeals the district court’s judgment, claiming that because she was a minor and her mother did not make an informed decision, the agreement did not extinguish her negligence claims and that disputed material facts preclude the grant of summary judgment on her gross negligence claim. We disagree and therefore affirm the judgment.
II. Standard of Review
[HN1] Summary judgment is appropriate where the pleadings, admissions, depositions, answers to interrogatories, and affidavits confirm that no genuine issue of material fact exists and judgment should be entered as a matter of law. C.R.C.P. 56(c); Jones v. Dressel, 623 P.2d 370, 373 (Colo. 1981). When asked to grant summary judgment, the district court “must resolve all doubts as to whether an issue of fact exists against the moving party.” Jones, 623 P.2d at 373. [HN2] We review a summary judgment [*3] ruling de novo. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251, 1256 (Colo. 1995).
Exculpatory agreements are construed strictly against the party seeking to limit its liability. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). However, the validity of such waivers is a question of law, which we review de novo. Jones, 623 P.2d at 376; Stanley v. Creighton Co., 911 P.2d 705, 707 (Colo. App. 1996).
III. Parental Consent to Exculpatory Agreements Affecting Minors
Hamill argues that the exculpatory clauses in the agreement do not bar her negligence claims. She reasons that the agreement is invalid under the four-part test articulated in Jones, 623 P.2d at 376, and that her mother did not make an informed decision under section 13-22-107, C.R.S. 2010, to release her prospective negligence claims. This statute states that [HN3] “[s]o long as [a parent’s] decision [to waive the child’s claims] is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education.” § 13-22-107(1)(a)(V), C.R.S. 2010 (emphasis added).
We disagree with Hamill’s position.
The agreement, and [*4] our interpretation of section 13-22-107(1)(a)(V), direct our decision.
The release language in the agreement states:
Release, Waiver of Liability and Indemnification
I, on behalf of myself and my child, hereby release and waive any claim of liability against Cheley . . . with respect to any injury . . . occurring to my child while he/she participates in any and all camp programs and activities.
I hereby agree to indemnify and hold harmless Cheley . . . with respect to any claim asserted by or on behalf of my child as a result of injury . . . .
I HAVE READ AND UNDERSTAND THE ABOVE AND AGREE TO BE BOUND BY THE TERMS OF THIS DOCUMENT.
(Emphasis by italics added.)
Another section of the agreement, labeled “Acknowledgment & Assumption of Risks and Waiver of Claims for Minors,” states:
PLEASE READ CAREFULLY BEFORE SIGNING. THIS DOCUMENT INCLUDES A RELEASE OF LIABILITY AND WAIVER OF CERTAIN LEGAL RIGHTS.
. . . .
Acknowledgment of Risks
I understand there are numerous risks associated with participation in any camping activities, including . . . horseback riding . . . . Many, but not all of these risks are inherent in these and other activities. . . .
Equipment used in the activity may break, fail or [*5] malfunction, despite reasonable maintenance and use. Some of the equipment used in activities may inflict injuries even when used as intended. Persons using equipment may lose control of such equipment and cause injury to themselves and to others.
. . . .
Counselors and guides use their best judgment in determining how to react to circumstances including . . . animal character . . . . The counselors and guides may misjudge such circumstances, an individual’s capabilities and the like.
. . . .
These are some, but not all, of the risks inherent in camping activities; a complete listing of inherent and other risks is not possible. There are also risks which cannot be anticipated.
I give my permission for my child to participate in all camp activities, including those described above. I acknowledge and assume the risks involved in these activities, and for any damages, illness, injury or death . . . resulting from such risks for myself and my child.
(Emphasis by italics added.)
Before deciding whether the agreement adequately “informed” Hamill’s mother under section 13-22-107 regarding prospective negligence claims, we first address the validity of the agreement.
A. Validity of an Exculpatory [*6] Agreement Under Jones
[HN4] We analyze the validity of an exculpatory agreement, including those involving a minor child, by examining four factors: (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. B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998) (citing Jones, 623 P.2d at 376).
1. First and Second Jones Factors: Duty and Nature of the Services
[HN5] The first Jones factor requires that we determine whether a duty to the public existed in the instant case. Jones, 623 P.2d at 376. Our supreme court has held that businesses engaged in recreational activities that are not practically necessary, such as equine activities, do not perform services implicating a public duty. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 469 (Colo. 2004).
[HN6] The second Jones factor examines the nature of the service performed. Jones, 623 P.2d at 376. Here, Cheley provided recreational camping services, including horseback riding. The services were “not a matter of practical necessity for even some members of the public,” because horseback [*7] riding is not “an essential service.” Jones, 623 P.2d at 377-78; see also Chadwick, 100 P.3d at 467; Day v. Snowmass Stables, Inc., 810 F. Supp. 289, 294 (D. Colo. 1993) (recreational equine services offered by the stable were not essential); cf. Stanley, 911 P.2d 705 (residential lease was matter of public interest, and exculpatory clause was void). The General Assembly’s enactment of section 13-21-119, C.R.S. 2010, limiting the civil liability of those involved in equine activities, underscores the fact that horseback riding is a matter of choice rather than necessity. Chadwick, 100 P.3d at 467-68.
2. Third Jones Factor: Fairness
[HN7] A contract is fairly entered into if one party is not so obviously disadvantaged with respect to bargaining power that the resulting contract essentially places him at the mercy of the other party’s negligence. Heil Valley Ranch, Inc., 784 P.2d at 784; accord Mincin v. Vail Holdings, Inc., 308 F.3d 1105, 1111 (10th Cir. 2002) (the second and third prongs of Jones inquire into the respective bargaining power of each party created by the “practical necessity” of the activity). Because horseback riding is not an essential activity, Hamill’s mother was not “at [*8] the mercy” of Cheley’s negligence when signing the agreement. See Chadwick, 100 P.3d at 469; see also Mincin, 308 F.3d at 1111 (because mountain biking was not an essential activity, no inferior bargaining power was identified); Day, 810 F. Supp. at 294 (defendants did not enjoy an unfair bargaining advantage in offering equine services).
By her own admission, Hamill’s mother voluntarily chose to sign the agreement expressly giving permission for Hamill to participate in horseback riding activities. Cf. Wycoff v. Grace Community Church, P.3d, (Colo. App. Nos. 09CA1151, 09CA1200 & 09CA1222, Dec. 9, 2010) (a waiver was insufficient to allow parents to assess the degree of risk involved and extent of possible injuries because it did not describe the activity that resulted in injury).
[HN8] In assessing fairness, courts may also examine whether the services provided could have been obtained elsewhere. See Jones, 623 P.2d at 375 (that a contract is offered on a “take-it-or-leave-it” basis does not, by itself, cause it to be an adhesion contract). The availability of other camps and other providers of horseback riding excursions is highlighted by Hamill’s mother’s deposition testimony [*9] that Hamill previously attended other camps. The record supports the district court’s conclusion that the agreement was entered into fairly.
3. Fourth Jones Factor: Intention of the Parties
Next, Hamill contends that the parties’ intention was not clearly stated in the agreement. Her claim that she only intended to release claims for “things that Cheley would have no control over” does not create a fact issue and is contradicted by the record.
[HN9] In reviewing a contract, we must enforce the plain meaning of the contract terms. USI Properties East, Inc. v. Simpson, 938 P.2d 168, 172 (Colo. 1997); B & B Livery, Inc., 960 P.2d at 136. We must also determine whether its terms are ambiguous, that is, susceptible of more than one reasonable interpretation. B & B Livery, Inc., 960 P.2d at 136. The parties’ disagreement over the meaning does not in and of itself create an ambiguity in the contract. Kuta v. Joint Dist. No. 50(J), 799 P.2d 379, 382 (Colo. 1990).
The language of the agreement here is unambiguous, and we give effect to its plain meaning. USI Properties East, Inc., 938 P.2d at 172; Kuta, 799 P.2d at 382 [HN10] (courts establish the meaning of a contract by examining the entire instrument as [*10] a whole, and not by viewing clauses or phrases in isolation).
Decisions of our supreme court also guide our examination of whether exculpatory agreements clearly evidence the parties’ intention. The Colorado Supreme Court enforced exculpatory agreements in B & B Livery, Inc. and Chadwick, which were similar to the agreement here, concluding that they clearly expressed the parties’ intent.
In B & B Livery, Inc., 960 P.2d 134, the plaintiff sued B & B to recover for injuries sustained when she fell from a rented horse. The plaintiff signed an exculpatory agreement containing the equine act’s mandatory release language warning that an equine professional is not liable for injury or death resulting from inherent risks of equine activities. See § 13-21-119(5)(b), C.R.S. 2010. The release also contained broad exculpatory language, releasing the company from “any liability in the event of any injury or damage of any nature (or perhaps even death) to [her] or anyone else caused by [her] electing to mount and then ride a horse owned or operated by B & B Livery, Inc.” B & B Livery, Inc., 960 P.2d at 135.
The plaintiff argued that the inclusion of this broad language created an ambiguity. Id. The [*11] supreme court disagreed, ruling that the agreement was written in simple and clear terms, it was not inordinately long, and the plaintiff admitted that she “really didn’t read” the release before she signed it, but was aware she was signing a release. Id. at 138 n.5. The supreme court held, based on the language of the agreement, “while we cannot be certain that if . . . [the plaintiff] had read and studied the agreement she would have signed it, there can be no dispute she intended to grant a general release to B & B.” Id. at 138.
In Chadwick, 100 P.3d 465, a participant in a back-country hunting trip sued the organizers of the trip when he was thrown off a mule and injured. Along with the equine act’s release language, the release also contained a “RELEASE FROM ANY LEGAL LIABILTY . . . for any injury or death caused by or resulting from [his] participation in the activities.” 100 P.3d at 468. In upholding the exculpatory agreement, the supreme court held that, while the agreement did not specifically include the word “negligence,” it nonetheless barred the plaintiff’s negligence claims. Id. The court reasoned that the release (1) was not inordinately long; (2) did not contain legal [*12] jargon; and (3) included the statutory release for inherent risks, but also included language releasing the defendant from “any legal liability.” Id. Therefore, the supreme court held the exculpatory language “cannot reasonably be understood as expressing anything other than an intent to release from ‘any’ liability for injuries ’caused by or resulting from'” the plaintiff’s participation in the activity. Id.
[HN11] In accordance with the public policy stated in section 13-21-119(4)(b), C.R.S. 2010, the supreme court held that parties may contract to release activity sponsors “even from negligent conduct, as long as the intent of the parties is clearly expressed in the contract.” Id.; see B & B Livery, Inc., 960 P.2d at 138.
As in Chadwick and B & B Livery, Inc., the agreement here is not inordinately long — three and a half pages. The legal jargon is minimal. Along with the statutory release language of section 13-21-119(5)(b), the agreement identifies many risks associated with camping activities, including horseback riding. The agreement, like that in Chadwick, broadly states an intent to release claims of liability for “any injury,” and like that in B & B Livery, Inc., it includes all degrees [*13] of potential injury, including the “death” of the participant. Hamill and both of her parents signed the agreement on April 27, 2004. Indeed, they also signed agreements containing the same language each of the two previous years.
The agreement covers “inherent and other risks,” noting that “[m]any, but not all, of these risks are inherent,” and stating that it is impossible to delineate a full list of risks, inherent or otherwise. Finally, the agreement repeatedly states that, by signing, Hamill’s mother agreed to release prospective claims against Cheley for “any legal liability,” “any injury,” and “any claim.” (Emphasis added by italics.) The agreement sufficiently placed Hamill’s mother on notice that the “[e]quipment used . . . may break, fail or malfunction” and that “counselors . . . may misjudge . . . circumstances.” The breadth of the release persuades us that the parties intended to disclaim legal liability for negligence claims. Indeed, misjudging a situation can amount to negligence. See Heil Valley Ranch, Inc., 784 P.2d at 781-82 [HN12] (valid exculpatory agreement need not invariably contain the word “negligence”).
To hold, as Hamill now argues, that the release did not provide [*14] greater protection than the release from liability of inherent risks provided by the equine act, section 13-21-119, would render large portions of the agreement meaningless. Heil Valley Ranch, Inc., 784 P.2d at 785 [HN13] (it is unreasonable to interpret an exculpatory agreement for an equine provider in such a way as to provide virtually no protection for the provider and render the release essentially meaningless); Chadwick, 100 P.3d at 469 (interpreting release provisions to be contingent upon satisfactory fulfillment by the provider of contractual obligations would render the release essentially meaningless). 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 — to govern only conduct outside of Cheley’s control — based on ambiguities not readily apparent within the four corners of the agreement.
Because the agreement did not implicate a public duty, did not involve an essential service, was fairly entered into, and it plainly expressed the intent to release prospective negligence claims, we hold that the agreement is valid.
B. Informed Consent Under Section 13-22-107
We next [*15] examine Hamill’s claim that her mother’s consent to release prospective negligence claims was not “informed,” as required by section 13-22-107, because she did not understand the scope of the agreement.
In 2002, the Colorado Supreme Court held that it was against public policy for parents to prospectively waive liability on behalf of minor children. Cooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002). The following year, the General Assembly superseded Cooper by enacting [HN14] section 13-22-107(3), C.R.S. 2010, which allows parents to “release or waive the child’s prospective claim for negligence.” The statute declares “that parents have a fundamental right to make decisions on behalf of their children, including deciding whether the children should participate in risky activities.” Wycoff , P.3d at , 2010 Colo. App. LEXIS 1832 at *5; see § 13-22-107(1)(a)(I)-(V). The statute states that “[s]o long as the [parent’s] decision is voluntary and informed, the decision should be given the same dignity as decisions regarding schooling, medical treatment, and religious education.” § 13-22-107(1)(a)(V) (emphasis added). However, the statute does not allow a parent to waive a child’s prospective claim for “willful and wanton, [*16] . . . reckless, . . . [or] grossly negligent” acts or omissions. § 13-22-107(4), C.R.S. 2010; Wycoff, P.3d at , 2010 Colo. App. LEXIS 1832 at *6.
Relying on the “informed” language of the statute, Hamill asserts that Cheley’s failure to identify the possibility that she might fall from a horse in the manner she did invalidates her mother’s consent.
We assume that the General Assembly was aware of the Jones test when it enacted section 13-22-107(1)(a)(V), Vaughan v. McMinn, 945 P.2d 404, 408 (Colo. 1997), but required something more for the waiver of a minor’s prospective negligence claims. Wycoff, P.3d at , 2010 Colo. App. LEXIS 1832 at *46 (concluding that the statutory requirement to “inform” parents under section 13-22-107(1)(a)(V), requires something more than meeting the Jones factors). The General Assembly required that the consent to waiver by a parent be “voluntary and informed.” Wycoff, P.3d at , 2010 Colo. App. LEXIS 1832 at *6; Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004); Boles v. Sun Ergoline, Inc., 223 P.3d 724, 725 (Colo. 2010) (noting that the supreme court invalidated an exculpatory agreement without regard to the Jones factors in Cooper, 48 P.3d at 1236). 2 A parent’s decision is informed when the parent has sufficient information to assess [*17] the potential degree of risks involved, and the extent of possible injury. Wycoff, P.3d at , 2010 Colo. App. LEXIS 1832 at *11; see also Black’s Law Dictionary 346 (9th ed. 2009) (defining “informed consent” as “agreement to allow something to happen, made with full knowledge of the risks involved and the alternatives”).
2 In Boles, our supreme court addressed the effectiveness of exculpatory agreements with regard to strict products liability. The supreme court cited Cooper for the proposition that the court may invalidate such agreements based on public policy considerations, without regard to the Jones test. However, we do not read Boles as invalidating the Jones test.
In Wycoff, a minor was injured while being pulled behind an ATV on an inner tube over a frozen lake. The mother did not know her child would engage in the activity. The exculpatory agreement the mother signed in advance made no reference to the activity. Wycoff, P.3d at , 2010 Colo. App. LEXIS 1832 at *10. Thus, the mother was unable to assess the risks, or the degree of possible injury, before signing the release. Id. Accordingly, a majority of the division in Wycoff found that release legally insufficient to bar the daughter’s personal injury claims. Id. The instant case [*18] is unlike Wycoff.
1. Degree of Risk
In contrast to Wycoff, the undisputed facts in the record show that Hamill’s mother knew the activities Cheley offered. Hamill had attended Cheley and ridden the camp horses for two years before the accident. The agreement clearly indicated that horseback riding was an activity available to campers. The agreement described many of the risks associated with horseback riding at camp, and notified Hamill’s mother that it was impossible to list all risks. See, e.g., Mallett v. Pirkey, 171 Colo. 271, 285, 466 P.2d 466, 473 (1970) (recognizing that while it is impossible for a physician to advise a patient of all conceivable risks, disclosure of substantial medical risks associated with surgical decision yields valid informed consent).
The agreement included language that informed Hamill’s mother that the equipment used by Cheley could fail and that the wranglers might “misjudge” situations. Both of these possibilities envision forms of negligence. As discussed above, the agreement itself directly contradicts Hamill’s mother’s objectively unreasonable interpretation of the contract that prospective negligence claims were not waived. See Crum v. April Corp., 62 P.3d 1039, 1041 (Colo. App. 2002) [*19] [HN15] (contracts generally will be interpreted to impose objectively reasonable standards, unless the contract involves matters of fancy or taste).
Hamill’s mother testified at her deposition that she voluntarily signed the release after having “skimmed” it. She had signed the same agreement in 2002 and 2003 and agreed that, by signing the waiver, she understood that she was accepting certain risks of injury to her child. See Rasmussen v. Freehling, 159 Colo. 414, 417, 412 P.2d 217, 219 (1966) [HN16] (if a person signs a contract without reading it, she is barred from claiming she is not bound by what it says); Day, 810 F. Supp. at 294 (a party signing a contract without reading it cannot deny knowledge of its contents, and is bound by what it says). She never contacted Cheley to discuss the release form, and had no questions about the language of the release form when she signed it. Hamill’s mother further agreed that “when you sign a document, you understand you’re agreeing to the terms in that document.” See B & B Livery, Inc., 960 P.2d at 141 (plaintiff admitted she had signed other releases in the past and was familiar with the fact that some activities required releases). Hamill’s mother admitted [*20] that the first time she had read through the agreement “thoroughly” was in her attorney’s office on June 2, 2009, well after the accident. Hamill’s mother’s signature communicated to Cheley that she had read and understood the terms of the contract and agreed to be bound by them.
That Hamill’s mother may not have contemplated the precise mechanics of her daughter’s fall does not invalidate the release and does not create a genuine issue of material fact. She knew her daughter would be riding horses and she was advised that there were risks, known and unknown, associated with the activity. Indeed, Hamill’s mother acknowledged in her deposition testimony that when horseback riding, there is “a risk of a child being thrown or falling off a horse.” Hamill’s argument that her mother did not give informed consent, despite her signature on the agreement and the language in the agreement indicating the contrary, is not persuasive and does not create a genuine issue of material fact. As a matter of law, the agreement sufficiently informed Hamill’s mother about the risks involved in horseback riding.
2. Extent of Injury
The broad release language in the agreement waiving “any claims of liability,” [*21] for “any injury,” even “death,” evidences that Hamill’s mother was informed that she was waving Hamill’s prospective claims, including negligence, and had sufficient information to assess the extent of possible injuries to Hamill. At her deposition, Hamill’s mother testified as follows:
Attorney: And, you know, you knew that someone such as Christopher Reeve had been tragically injured falling off a horse?
Ms. Hamill: Yes.
Attorney: Did you personally know Mr. Reeve?
Ms. Hamill: Yes.
Attorney: And so you were aware that there were significant risks associated with horseback riding?
Ms. Hamill: Yes.
Attorney: And you were aware that your daughter was going to be doing a significant amount of horseback riding?
Ms. Hamill: Yes.
The agreement did not need to include an exhaustive list of particularized injury scenarios to be effective.
Our review of the entire record leads us to conclude that there are no genuine issues of material fact. Hamill’s mother had more than sufficient information to allow her to assess the extent of injury possible in horseback riding, and to make an “informed” decision before signing the release. See Black’s Law Dictionary 346 (definition of informed consent).
We conclude [*22] that the agreement adequately disclosed the extent of potential injuries. Moreover, because the agreement was fairly entered into and the language clearly and unambiguously presents no genuine issue of material fact as to whether Hamill’s mother was informed of the agreement’s intent to release “all claims,” including prospective negligence claims, the district court did not err in granting summary judgment for Cheley.
IV. Public Policy
Hamill next argues that public policy considerations render the agreement invalid. According to Hamill, the General Assembly’s post-Cooper enactment of section 13-22-107 is in derogation of the common law, and, as such, the agreement must be strictly construed against Cheley. While we construe the agreement against Cheley because it is the party seeking to limit its liability, Heil Valley Ranch, 784 P.2d at 784, we cannot invalidate the agreement for public policy reasons.
[HN17] The General Assembly is the branch of government charged with implementing public policies. Crawford Rehabilitation Services, Inc. v. Weissman, 938 P.2d 540, 553 (Colo. 1997). The judiciary’s role is to recognize and enforce such implementation. Id. By enacting section 13-22-107(1)(b), [*23] the General Assembly expressly superseded Cooper, 48 P.3d 1229, and empowered parents to weigh the risks and benefits of their children’s activities. Appellate courts have a fundamental responsibility to “interpret statutes in a way that gives effect to the General Assembly’s intent in enacting that particular statute.” Carlson v. Ferris, 85 P.3d 504, 508 (Colo. 2003); accord People v. Luther, 58 P.3d 1013, 1015 (Colo. 2002). The General Assembly has the authority to abrogate the common law, as it did in enacting section 13-22-107(1)(b), which directly superseded Cooper, 48 P.3d 1229. See Vaughan, 945 P.2d at 408 (if the legislature wishes to abrogate rights otherwise available under the common law, it must manifest its intent either expressly or by clear implication).
The governing statute promotes children’s involvement in horseback riding and approves the informed release of prospective negligence claims. Thus, Hamill’s public policy argument is unavailing.
V. Gross Negligence
Finally, Hamill contends genuine issues of material fact exist regarding her gross negligence claim. We disagree.
Both parties concede that [HN18] exculpatory agreements are not a bar to civil liability for gross negligence. [*24] Jones, 623 P.2d at 376; Forman v. Brown, 944 P.2d 559, 564 (Colo. App. 1996). Gross negligence is willful and wanton conduct, that is, action committed recklessly, with conscious disregard for the safety of others. Forman, 944 P.2d at 564. Whether a defendant’s conduct is purposeful or reckless is ordinarily a question of fact; however, “if the record is devoid of sufficient evidence to raise a factual issue, then the question may be resolved by the court as a matter of law.” Id.
The record shows that a Cheley wrangler checked Hamill’s saddle two to three times before the ride. Hamill’s deposition testimony indicates that a wrangler assisted in saddling her horse. Consistent with Cheley’s standard procedure, the wrangler checked the saddle again before giving the camper permission to mount the horse. Hamill testified at deposition that once she was mounted, a Cheley wrangler asked her to dismount so the wrangler could, again, adjust the saddle and stirrups. Thus, the uncontradicted deposition testimony is that the saddle was properly cinched when the ride started and that the wranglers exercised care in making sure it was done appropriately. A Cheley wrangler on foot then led the riders [*25] on a path toward a riding ring while another wrangler followed. The wrangler leading the group stopped to check for traffic before allowing the campers and their horses to walk across the road to the ring. Hamill rode approximately 100 yards from where her saddle was last checked before she fell off the horse.
While Hamill asserts that the shape of the horse and its claimed propensity to bloat its stomach made saddle slippage more likely, she did not demonstrate that, before her accident, simply tightening the girth would not address the issue. There is no evidence that Cheley’s wrangler was “willfully” incompetent, purposefully caused the saddle to slip, or recklessly disregarded the appropriate way to tack the horse. Hamill’s mother testified that she thought “Cheley has the utmost care in what they do, but mistakes happen.” Under these circumstances, we perceive no genuine issue of material fact. Hence, the district court was correct in dismissing the gross negligence claim on summary judgment. 3
3 Because we find that the agreement barred Hamill’s negligence claims, we do not need to address, as the district court did, whether saddle slippage is an inherent risk of horseback riding [*26] that implicates the equine act.
The judgment is affirmed.
JUDGE CASEBOLT and JUDGE LOEB concur.
$1.2 M award in horseback riding fatality in Wyoming
Posted: January 7, 2010 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals 2 CommentsA Wyoming jury has awarded $1.2 million dollars for the death of a woman in a horseback riding accident. Attorney for the family says this will prompt a review of safety standards in the equine industry.
I can see it coming next summer in Wyoming and many other states.
It is sad when a 21-year-old woman died, I do not want to make fun of her death. I am making fun of a jury and a system that says a woman taking horseback riding lessons can sue.
It appears from the article that no release was used and the defense was based solely on the Wyoming Recreation Statute. As I have said before that is a Swiss cheese statute, it has as many holes as it has defenses. Most statutes that purport to protect outdoor recreation providers do more damage than good. Equine statutes are the most infamous. Since equine liability statutes have been enacted, they have been 100% effective. No horse has been sued since the statutes have been passed. However, they have done nothing to stop lawsuits by people injured by horses or riding. It is stupid to rely on any statute to protect you in a lawsuit, always use a release written by an attorney.
It is also funny that the plaintiff’s lawyer is attempting to justify the large award as forcing the equine industry into being safer. It will not happen, if anything it will have the opposite effect. When insurance premiums go up because of this verdict, there will be less time and money to spend on safety.
However, we are talking about horses for heaven’s sake. I grew up with horses; they are beautiful; they are also dumb, unpredictable, flight, skittish, scared and scary! Horses are big and go fast. If you fall off a ladder five foot in the air, you expect to be hurt. If that ladder is traveling at 20 miles per hour, you should expect to be hurt worse.
See Lawyer: $1.2M verdict may boost horse safety
$2.36 M awarded to boy kicked by horse during inner-city youth program
Posted: November 26, 2009 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals 1 CommentA Philadelphia jury has awarded $$2.36 million to a boy in an inner city program which “involved” youth in horseback riding and polo matches. The defendant was a well known local group called Work To Ride Inc.
The boy was kicked by the horse as it was being loaded into a trailer. The horse struck the youth in the face breaking his jaw and causing other injuries. The jury found the non-profit was 90% liable and the total award was reduced by 10% for the youth’s percentage of fault.
One issue here that appears a lot in cases like this is the discrepancy of knowledge between those who are used to wild things and those who are not.
If you grew up on a farm you know horses kick. If you grew up in a big city you expect that someone who is taking your children to do something with them will take them to a safe place to do safe things. You probably don’t know that horses kick.
Consequently when a horse kicks your son, you are going to be mad. People don’t let their children do dangerous things. Consequently when something a parent thought was safe turns out to be dangerous someone is mad. Mad equals lawsuit.
My other concern is the program in general. What long term skills or experience is someone from the inner city going to have by learning to ride a horse?
See Boy Awarded $2.36 Million for Horse Kick to the Face
Camp Business July/August 2008
Posted: August 19, 2008 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Summer Camp Leave a comment
July 7, 2008
Rodney J. Auth, Publisher
Camp Business
PO Box 1166
Medina, OH 44258-1166
Re: Good Sense: The legalities of horseback riding at camp
Camp Business July/August 2008
Dear Mr. Auth:
The article Good Sense was very well written and very informative. I would like to point out two instances where the story may be misleading.
In the story the statement is made that liability releases may deter lawsuits but not for negligence. Releases stop lawsuits based on claims for negligence in 45 out of 50 states. Releases do not work for claims made by minors except in three states: California, Colorado and Ohio. The Florida Supreme Court is currently looking at this issue. So releases do work to stop suits, they only work when signed by someone over the age of consent.
The article also states that horses are “attractive nuisances.” They are not. An attractive nuisance is a condition on the land or a premises issue. The definition usually revolves around the term “artificial condition” upon the land.
Tennessee used the term creates a condition to define attractive nuisance as:
One who has that on his own premises, or who creates a condition on the premises of another, or in a public place, which may reasonably be apprehended to be a source of danger to children of tender years, is under a duty to take such precautions as a reasonably prudent person would take to prevent injury to such children whom he knows to be accustomed to resort there, or who may, by reason of something there which may be expected to attract them, come there to play. Mead v. Parker, 340 F.2d 157; 1965 U.S. App. LEXIS 6909
The basis of the doctrine is to protect children from dangerous conditions on the land. Farm animals and pets have never been considered an attractive nuisance. A child should be instructed by their parents as to the dangers present in land; it is the special features of the premises created by man that a child may not know about that creates the liability.
The best example is a swimming pool is an attractive nuisance and a pond is not.
This article is needed because too often camps rely on equine liability acts to protect their business. When speaking to groups about equine liability acts I always make sure I tell them that those laws are 100% effective. Since their enactment no horse has been sued. However suits against horse owners have not changed. A horse cannot be held liable for negligence, which is what the acts cover, but a horse owner still can.
Sincerely,
James H. Moss
Editor Outdoor Recreation Law Review
www.snewsnet.com/lawreview
http://rec-law.blogspot.com/
Recreation Law 