Worldwide warning to users of via ferrata sets
Posted: September 25, 2012 Filed under: Youth Camps, Zip Line | Tags: Bern, International Olympic Committee, UIAA, Via Ferrata Leave a comment
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Posted: August 31, 2012 Filed under: Youth Camps, Zip Line | Tags: Mountain Hardwear, Pro-Deal, Tent 1 Comment| Having trouble viewing this email? Click here |
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Camp not liable for soccer injury because camp adequately supervised the game
Posted: July 16, 2012 Filed under: New York, Sports, Summer Camp | Tags: #Soccer, Defendant, Forseeable, Harris, Infant, New York, NY, Standard of Care, Summary judgment, Summer Camp, Supervision Leave a commentHarris v Five Point Mission–Camp Olmstedt, 73 A.D.3d 1127; 901 N.Y.S.2d 678; 2010 N.Y. App. Div. LEXIS 4526; 2010 NY Slip Op 4547
Both defendants and plaintiffs need to understand the standard of care, and the limit of liability the defendant will be held accountable to.
In this case from New York, a 13-year-old called an infant by the court, sued a summer camp for an injury to his leg. While attempting to kick the ball, he and another camper collided and the other camper fell on the plaintiff’s leg. The plaintiff sued the camp for the injury. The defendant filed a motion for summary judgment, which was denied. The defendant appealed the motion and the appellate court overturned the lower court and dismissed the case.
An infant from a legal perspective is not a baby. An infant is anyone under the age of 18, not an adult.
The sole issue was the standard of care, and the level of supervision the camp owed to the plaintiff. The court held the standard of care a camp or school owed was not an insurer of the safety of the camper but only liable for foreseeable injuries. Even then those foreseeable injuries must be caused by an absence of adequate supervision.
Schools or camps are not insurers of the safety of their students or campers, as they “cannot reasonably be expected to continuously supervise and control all of their movements and activities” Rather, schools and camps owe a duty to supervise their charges and will only be held liable for foreseeable injuries proximately caused by the absence of adequate supervision.
The lack of adequate supervision must relate to the injury. A failure to supervise, which created the foreseeable injury must be the cause of the accident. Additionally, that accident must be one that can be supervised. If the accident occurs in such a manner that supervision cannot intervene, then there can be no liability.
Moreover, even if an issue of fact exists as to negligent supervision, liability does not lie absent a showing that such negligence proximately caused the injuries sustained “Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the … defendant is warranted”
There was also an issue that the expert witness did not discuss all the issues necessary to prove the camp was liable for the injury. The expert report stated the camp should have provided shin guards, and that shin guards were required. However, the expert did not state that the type of game being played by the plaintiff, an informal summer camp game was held to the same rules as high school games.
So
The plaintiff’s complaint did not seem to contemplate the level of supervision required from a camp. Like schools, camps are not required to keep kids safe. They are required to do the following.
· Keep kids safe from foreseeable risks
· Adequately supervise kids.
The first is the hardest. Kids can get hurt any and always. Consequently, foreseeable is very hard. However, the easiest way to see foreseeable and for the plaintiff to prove foreseeable is if the accident had occurred previously at your camp or any camp. If you keep track of injuries and accidents, you better do something about each and every one of the reports. A report is proof of the foreseeability of a risk.
That is a great reason to attend your trade association meeting or conference. You can learn from other members of your industry or your insurance carrier about the accidents they have had. If you have a similar program, you have been given a gift, and you have identified foreseeable before a plaintiff has.
 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
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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Harris v Five Point Mission–Camp Olmstedt, 73 A.D.3d 1127; 901 N.Y.S.2d 678; 2010 N.Y. App. Div. LEXIS 4526; 2010 NY Slip Op 4547
Posted: July 16, 2012 Filed under: Legal Case, New York, Sports, Summer Camp | Tags: #Soccer, New York, Summer Camp Leave a commentTo Read an Analysis of this decision see: Camp not liable for soccer injury because camp adequately supervised the game
Harris v Five Point Mission–Camp Olmstedt, 73 A.D.3d 1127; 901 N.Y.S.2d 678; 2010 N.Y. App. Div. LEXIS 4526; 2010 NY Slip Op 4547
Nikki Harris, Respondent, v Five Point Mission–Camp Olmstedt, Appellant. (Index No. 38156/07)
2009-08327
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
73 A.D.3d 1127; 901 N.Y.S.2d 678; 2010 N.Y. App. Div. LEXIS 4526; 2010 NY Slip Op 4547
May 25, 2010, Decided
SUBSEQUENT HISTORY: As Amended June 21, 2010.
HEADNOTES
Negligence–What Constitutes.–Defendant was not liable for injuries sustained by infant while playing soccer at sleepaway summer camp operated by defendant; defendant established that it did not negligently supervise infant during soccer game in which he was injured and that it did not negligently maintain soccer field where accident occurred.
COUNSEL: [***1] Molod Spitz & DeSantis, P.C., New York, N.Y. (Salvatore J. DeSantis and Marcy Sonneborn of counsel), for appellant.
Kenneth J. Ready, Mineola, N.Y. (Steven T. Lane of counsel), for respondent.
JUDGES: REINALDO E. RIVERA, J.P., ANITA R. FLORIO, DANIEL D. ANGIOLILLO, PLUMMER E. LOTT, JJ. RIVERA, J.P., FLORIO, ANGIOLILLO and LOTT, JJ., concur.
OPINION
[*1127] [**679] In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Schack, J.), dated July 17, 2009, which denied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted.
On the morning of July 29, 2006, the then 13 1/2-year-old infant, Devante Harris (hereinafter Devante), allegedly was injured while playing soccer at the sleepaway summer camp operated by the defendant, Five Point Mission–Camp Olmstedt. According to Devante’s deposition testimony, the accident happened over a 15-second period of time. After Devante fell while attempting to kick a soccer ball, another camper, attempting to kick the same ball, made contact with Devante’s [***2] leg and then fell on Devante’s leg. At the time of the accident, there were two counselors supervising the soccer game, while acting as opposing goalies, one of whom was only 12 feet away from Devante when the accident occurred. Furthermore, during the hour before the accident occurred, neither Devante nor anyone else [*1128] fell during the game. According to the deposition testimony of the camp director, Nolan Walker, the camp hired a private landscaping company to maintain the field. Additionally, in the two weeks leading up to the date of the accident, he did not observe any defects in the field.
[HN1] Schools or camps are not insurers of the safety of their students or campers, as they “cannot reasonably be expected to continuously supervise and control all of their movements and activities” (Cohn v Board of Educ. of Three Vil. Cent. School. Dist., 70 AD3d 622, 623, 892 NYS2d 882 [2010]; see Mirand v City of New York, 84 NY2d 44, 49, 637 NE2d 263, 614 NYS2d 372 [1994]). Rather, schools and camps owe a duty to supervise their charges and will only be held liable for foreseeable injuries proximately caused by the absence of adequate supervision (see Mirand v City of New York, 84 NY2d at 49; Doe v Department of Educ. of City of New York, 54 AD3d 352, 353, 862 NYS2d 598 [2008]; [***3] Paca v City of New York, 51 AD3d 991, 992, 858 NYS2d 772 [2008]). Moreover, even if an issue of fact exists as to negligent supervision, liability does not lie absent a showing that such negligence proximately caused the injuries sustained (see Odekirk v Bellmore-Merrick Cent. School Dist., 70 AD3d 910, 895 NYS2d 184 [2010]; Siegell v Herricks Union Free School Dist., 7 AD3d 607, 777 NYS2d 148 [2004]). “Where an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury and summary judgment in favor of the … defendant[] is warranted” (Convey v City of Rye School Dist., 271 AD2d 154, 160, 710 NYS2d 641 [2000]; see Odekirk v Bellmore-Merrick Cent. School Dist., 70 AD3d 910, 895 NYS2d 184 [2010]; Paca v City of New York, 51 AD3d at 993; Capotosto v Roman Catholic Diocese of Rockville Ctr., 2 AD3d 384, 385-386, 767 NYS2d 857 [2003]).
The defendant made a prima facie showing of its entitlement to judgment as a matter of law. It established, by way of Devante’s deposition testimony, that it did not negligently supervise him during the soccer game in which he was injured (see Mirand v City of New York, 84 NY2d at 49; Calcagno v John F. Kennedy Intermediate School, 61 AD3d 911, 912, 877 NYS2d [**680] 455 [2009]). It also established [***4] that it did not negligently maintain the soccer field where the accident occurred (see Lopez v Freeport Union Free School Dist., 288 AD2d 355, 356, 734 NYS2d 97 [2001]).
In response, the plaintiff failed to show the existence of a triable issue of fact. Devante’s affidavit submitted in opposition to the motion merely raised a feigned issue of fact designed to avoid the consequences of his earlier deposition testimony, and thus was insufficient to defeat the defendant’s motion for summary judgment dismissing the complaint (see Denicola v [*1129] Costello, 44 AD3d 990, 844 NYS2d 438 [2007]). The affidavit of Devante’s mother, the plaintiff, Nikki Harris, also was insufficient to defeat the defendant’s motion, as she did not have personal knowledge of the facts underlying the claim and relied upon inadmissible hearsay in her averments (see New S. Ins. Co. v Dobbins, 71 AD3d 652, 894 NYS2d 912 [2010]).
The plaintiff’s expert’s affidavit also was insufficient to raise a triable issue of fact as to whether the defendant’s failure to provide Devante with shin guards constituted negligence. The affidavit improperly relies on the version of the events set forth in Devante’s affidavit in opposition to the motion and not upon his deposition testimony. Furthermore, in [***5] concluding that the defendant summer camp was negligent in failing to provide Devante with shin guards during the soccer game, the expert failed to allege that sleepaway summer camps generally provide shin guards to campers during informal soccer games like the one at issue (see Diaz v New York Downtown Hosp., 99 NY2d 542, 545, 784 NE2d 68, 754 NYS2d 195 [2002]; Walker v Commack School Dist., 31 AD3d 752, 820 NYS2d 287 [2006]). Nor does he allege, based upon his personal knowledge or experience, that the rules of college, high school, or youth soccer leagues, which he contends require the use of shin guards, have been implemented by or are the generally accepted practice in informal summer camp soccer games such as the one in which Devante was injured (see Diaz v New York Downtown Hosp., 99 NY2d at 545; Walker v Commack School Dist., 31 AD3d 752, 820 NYS2d 287 [2006]).
Accordingly, the defendant’s motion for summary judgment dismissing the complaint should have been granted (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324-325, 501 NE2d 572, 508 NYS2d 923 [1986]). Rivera, J.P., Florio, Angiolillo and Lott, JJ., concur.
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Congressional end run on Grand Canyon National Park overflights – need your help!
Posted: July 4, 2012 Filed under: Youth Camps, Zip Line | Tags: Grand Canyon, National park, Overflights 1 CommentCalling all Grand Canyon National Park Advocates:
Don’t know if you saw the AZ Republic front page headline the other day, but Congress (mainly Senators McCain and Kyl and Congressman Gosar in the House of Representatives) has basically torpedoed the Overflights EIS by sneaking in an amendment to the enormous transportation bill that just passed. The amendment basically locks in the status quo and may negate any improvements the park would make in the yet-to-be-released Final EIS and Record of Decision. You can read the article here:
Also, please see the attached fact sheet about this current situation. We’re asking for park advocates like you to write letters to the editors to their local newspapers expressing your thoughts (disbelief, displeasure, outrage, all of the above…) about this end run by Congress, the enormous waste of taxpayer dollars, and the disenfranchisement of all of us who weighed in on the draft EIS in order to restore natural quiet in our icon park. Why should noisy commercial air tours be allowed to damage the Grand Canyon’s natural quiet?
To make things easy, here are a few links to the “letter to the editor” forms for newspapers that may be in your area:
Arizona Daily Sun: http://azdailysun.com/html_c0113bdc-e0b2-11e0-b7b2-001cc4c002e0.html
Arizona Republic: http://www.azcentral.com/arizonarepublic/opinions/sendaletter.html
Prescott Daily Courier: http://www.prescottaz.com/Formlayout.asp?formcall=userform&form=1
Las Vegas Sun: http://www.lasvegassun.com/contact/letters/
Salt Lake City Tribune: http://www.sltrib.com/pages/help/ (scroll down for instructions)
If you don’t see your newspaper listed here, it is easy just to Google it. GCRG has members in all fifty states, so lets’ do a media blitz!
And if you’d also like to decry this Congressional sneak attack and “end run” around the EIS process direct to your Congressional representatives, you can do so at: http://www.contactingthecongress.org/
This was a complete surprise to the NPS and indeed to many other Congressional representatives who are environmental friends as well. It remains to be seen how the NPS will respond and what the fate of the EIS will be. But we’re not ready to give up….
Thanks for your help and please forward as you see fit.
Grand Canyon River Guides
Overflights Fact Sheet 07 03 2012 – final-1.pdf
Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.
Posted: June 11, 2012 Filed under: Minors, Youth, Children, Ohio, Release (pre-injury contract not to sue) | Tags: #OH, Minor, Ohio, Release Leave a commentWolfe v. AmeriCheer, Inc., 2012 Ohio 941; 2012 Ohio App. LEXIS 827
More support that the original Zivich decision did not just apply to non-profits or charities.
Many decisions from other states have dismissed Ohio’s court decision upholding the right of a parent to sign away a minor’s right to sue. Several other state courts have dismissed the Ohio decision Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998), decision as “non-persuasive.” These courts have identified the decision as applying only to charities or non-profits to keep insurance costs down.
This decision from an Ohio Appellate court dismisses those ideas and holds a release used by a commercial enterprise signed by a parent on behalf of minor stops the lawsuit by the minor.
This case involved an accident at a cheerleading competition. (Yes, it is outside the normal range of cases I write about; however, it is valuable to the outdoor recreation community.) The plaintiff was 13 years of age and part of a cheerleading team sponsored by a commercial business. This team was not part of a public or private school.
The competition was put on by the defendant. To enter the competition the mother of the plaintiff had to sign a Medical Treatment Authorization and Release of Liability. The language of the release part of the form is included in the decision, but that language barely makes the minimum language necessary to be a release.
The plaintiff was a “base” who supported and lifted other cheerleaders into the air. In this case, the “flyer” fell landing on the plaintiff injuring her. She suffered a T8 spinal compression fracture.
The plaintiff sued based on the:
…wreckless, wanton and complete disregard for the safety of Plaintiff, Defendant failed to provide the proper spotters and coaching, as a result Plaintiff was caused to sustain severe and permanent injuries to her person when her team members fell onto her person.
She claimed the failure of the spotters to be in a proper position was more than negligence it “constituted reckless and wanton disregard for Lindsay’s [the plaintiff] safety.” These allegations would take the issue out of simple negligence, which can be protected by a release, to an issue that must be decided by a jury.
The defendants argued the release and the doctrine of primary assumption of the risk. The trial court granted the defendants motion for summary judgment holding both the release and the doctrine of primary assumption of the risk barred the plaintiff’s claims.
So?
In Ohio, the doctrine of Primary Assumption of the risk is occurs when a plaintiff:
…voluntarily engaged in a recreational activity assumes the inherent risks of that activity and cannot recover for injuries sustained while engaging in that activity unless the defendant acted recklessly or intentionally in causing the injuries
As long as the rules of the game or sport are being followed or someone is acting recklessly or intentionally, a player cannot recover from their injuries.
Negligence is synonymous with:
…with heedlessness, thoughtlessness, inattention, inadvertence, and oversight, and conveys the idea of inadvertence as distinguished from premeditated or formed intention, or a conscious purpose to do a wrong act or to omit the performance of a duty.
Negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor.
Contrast negligence with Willful, wanton or reckless conduct which is defined by Ohio’s law as:
….a failure to exercise any care whatsoever by one who owes a duty of care to another, and the failure must occur under circumstances where there is a great probability that harm will result from the lack of care
Evidence of willful, wanton or reckless conduct can be shown by acts of “…stubbornness, obstinacy, or persistency in opposing that which is right, reasonable, correct, or generally accepted as a course to follow in protecting the safety of others.”
Reckless disregard for the safety of another occurs if one does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
The court characterized the cheerleading competition as a sporting event. As such, unreasonable risk by participants at a sporting event must take into account the way the particular game is played, including the rules, customs and foreseeable conduct of the participants.
To continue her claim based on the greater than simple negligence allegations, the complaint and motions of the plaintiff must assert acts or omissions on the part of the defendant that prove the willful, wanton or reckless conduct or misconduct. The court could not find anything in the pleadings or the motions that supported those claims.
These facts do not demonstrate a disposition to perversity on the part of the spotters or a failure to exercise any care whatsoever. Therefore, an issue as to whether the spotters’ conduct was wanton does not exist.
The court upheld the lower court decision. In doing so the court did make one statement, which was quite interesting.
It is unfortunate that Lindsay was seriously injured at the competition, and we realize that, because of the accident, she has suffered a great deal. However, there was no evidence of recklessness or wantonness that renders AmeriCheer [Defendant] liable for damages.
So Now What?
This decision upholds the prior decision in Zivich. Decisions that I’ve written about where Zivich was dismissed will not be changed, but those decisions will have a lesser effect in the future. See Delaware holds that mothers signature on contract forces change of venue for minors claims and Alabama follows the majority of states and does not allow a parent to sign away a minor’s right to sue, (Zivich only applies to charities), Texas follows majority with appellate court decision holding a parent cannot sign away a minor’s right to sue and Iowa does not allow a parent to sign away a minor’s right to sue (Zivich only applies to protect volunteers).
This case also supports the use of a release in Ohio to stop a lawsuit by a minor when a minor is injured and the release is signed by a parent or guardian.
What do you think? Leave a comment.
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Wolfe v. AmeriCheer, Inc., 2012 Ohio 941; 2012 Ohio App. LEXIS 827
Posted: June 11, 2012 Filed under: Legal Case, Minors, Youth, Children, Ohio, Release (pre-injury contract not to sue) | Tags: #Cheerleading, #OH, Minor, Ohio, Release, Summary judgment Leave a commentWolfe v. AmeriCheer, Inc., 2012 Ohio 941; 2012 Ohio App. LEXIS 827
Lindsay M. Wolfe, Plaintiff-Appellant, v. AmeriCheer, Inc., Defendant-Appellee.
No. 11AP-550
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY
2012 Ohio 941; 2012 Ohio App. LEXIS 827
March 8, 2012, Rendered
PRIOR HISTORY: [**1]
APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 10CVH-05-7045).
DISPOSITION: Judgment affirmed.
COUNSEL: Plevin & Gallucci Co., LPA, Michael D. Shroge, and Frank L. Gallucci, III, for appellant.
Reminger Co., L.P.A., Martin T. Galvin and Rafael P. McLaughlin, for appellee.
JUDGES: TYACK, J. BROWN, P.J., and DORRIAN, J., concur.
OPINION BY: TYACK
OPINION
(REGULAR CALENDAR)
DECISION
TYACK, J.
[*P1] Plaintiff-appellant, Lindsay M. Wolfe, was seriously injured while competing in a cheerleading event. She appeals from the May 24, 2011 decision and entry granting defendant-appellee AmeriCheer, Inc.’s (“AmeriCheer”) motion for summary judgment. For the reasons that follow, we affirm.
[*P2] Lindsay M. Wolfe, then 13 years old, participated in a cheerleading competition on February 2, 2003 at the Columbus Convention Center. Americheer sponsored the competition known as the 2003 Winter Championship. As a prerequisite to Lindsay being allowed to participate in the competition, Lindsay’s mother, Barbara Wolfe, signed a “Medical Treatment Authorization and Release of Liability” before the competition. The release contained, in pertinent part, the following language:
I further release AmeriCheer and its representatives from any claims for injury [**2] or illness that may be sustained as a result of their participation in this event. I acknowledge and understand that in participating in this event, there is the possibility they may sustain physical illness or injury in connection with his or her participation. I further understand and acknowledge that my daughter [or] [son] and I assume the full risk of physical injury by their participation and I further release the event location, AmeriCheer, Inc., as well as it’s [sic] representatives, from any claims for personal injury, [or] illness that they may sustain during camp.
[*P3] Lindsay was a member of the Xtreme Team Athletics All-Star Cheer & Dance, a private all-star cheerleading team. Xtreme team members trained and competed in a style of cheerleading characterized by gymnastic-type stunts. At the time of her injury, Lindsay was acting as a “base” who, along with others, supported and lifted another cheerleader, the “flyer,” into the air. At a point in the routine where Lindsay had assisted in raising the flyer, the flyer slipped or lost her balance and fell, landing on Lindsay. Lindsay sustained a T8 spinal compression fracture as a result of the fall.
[*P4] Teams use spotters when cheerleaders [**3] are learning new skills, practicing, or performing stunts in which one or more cheerleaders are elevated above the floor. The spotters are there to catch a cheerleader in case of a fall. AmeriCheer provided the spotters used for the 2003 Winter Championship. In her complaint, Lindsay alleged that:
[D]ue to the wreckless [sic], wanton and complete disregard for the safety of Plaintiff, Defendant failed to provide the proper spotters and coaching, as a result Plaintiff was caused to sustain severe and permanent injuries to her person when her team members fell onto her person.
(Complaint, at ¶ 3.)
[*P5] AmeriCheer moved for summary judgment on the grounds that the release signed by Lindsay’s mother barred any negligence claims. Additionally, AmeriCheer argued that the doctrine of primary assumption of risk also acted to bar Lindsay’s claims.
[*P6] Lindsay responded that the spotters’ failure to be properly positioned and failure to move in when the team started the stunt constituted reckless and wanton disregard for Lindsay’s safety, not mere negligence. Therefore, she argued there existed a genuine issue of material fact as to whether the conduct of the spotters was wanton or reckless.
[*P7] The trial [**4] court found that the release signed by Barbara Wolfe on behalf of her daughter was valid, and therefore, the trial court concluded that Lindsay was precluded, by operation of the lease, from bringing any negligence claims against AmeriCheer related to her injuries. The court also agreed with AmeriCheer that the doctrine of primary assumption of risk precluded the negligence claims. Lindsay has not challenged those issues on appeal.
[*P8] The trial court then considered whether there existed a genuine issue of material fact concerning the issue of willful, wanton, or reckless conduct. The court found that Lindsay had failed to present evidence that satisfied the threshold required for a showing of wanton or reckless conduct.
[*P9] On appeal, Lindsay assigns the following as error:
I. The trial court erred in granting Defendant’s Motion for Summary Judgment because material facts of willful, wanton or reckless conduct exist, placing that issue in dispute for a jury to determine.
II. The trial court erred in concluding that Plaintiff set forth no facts other than those alleged by Plaintiff herself. The trial court’s own Order citing statements garnered from the deposition testimony of Defendant’s President [**5] and CEO clearly establishe a question of fact for which a jury is to determine.
[*P10] At the outset, we address the issue of the deposition testimony of Elizabeth Rossetti, the president and CEO of AmeriCheer. Ms. Rossetti’s deposition was not filed with the court of common pleas. AmeriCheer attached a few pages of excerpts from Ms. Rossetti’s deposition as an exhibit to its reply in support of summary judgment, but the deposition itself was never filed with the court of common pleas. Only the following three depositions were made part of the record: 1) Lindsay Wolfe’s deposition taken on Friday, October 10, 2008; 2) Barbara Wolfe’s deposition taken on December 9, 2008; and 3) Lindsay Wolfe’s second deposition taken on March 15, 2011. A copy of Ms. Rossetti’s entire deposition was attached as part of AmeriCheer’s appendix to its appellate brief. However, since the complete deposition was not made part of the record, we will not consider the entirety of Ms. Rossetti’s deposition.
[*P11] Nevertheless, both parties and the trial court relied on the excerpts of Ms. Rossetti’s deposition without objection in the summary judgment proceedings. The trial court could and did rely on those representations [**6] when it quoted some of Ms. Rossetti’s testimony. Sicard v. Univ. of Dayton, 104 Ohio App.3d 27, 30, 660 N.E.2d 1241 (2d Dist.1995), fn. 1. [HN1] “A trial court, however, can consider non-complying documents in adjudicating a summary judgment motion when no objection to the documents is raised.” New Falls Corp. v. Russell-Seitz, 10th Dist. No. 08AP-397, 2008 Ohio 6514, ¶ 12. “Absent an objection, a trial court has the discretion to consider unauthenticated documents when rendering summary judgment.” Columbus v. Bahgat, 10th Dist. No 10AP-943, 2011 Ohio 3315, ¶ 16. Accordingly, we shall consider the deposition excerpts as well since both parties argue that Ms. Rossetti’s deposition supports their respective arguments.
[*P12] Lindsay’s assignments of error challenge the trial court’s ruling on AmeriCheer’s motion for summary judgment. We [HN2] review the trial court’s grant of summary judgment de novo. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41, 654 N.E.2d 1327 (9th Dist.1995). [HN3] Summary judgment is proper only when the party moving for summary judgment demonstrates: (1) no genuine issue of material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds could come to but one conclusion, [**7] and that conclusion is adverse to the party against whom the motion for summary judgment is made, when the evidence is construed in a light most favorable to the non-moving party. Civ.R 56(C); State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St. 3d 181, 1997 Ohio 221, 677 N.E.2d 343 (1997).
[*P13] [HN4] Under summary judgment motion practice, the moving party bears an initial burden to inform the trial court of the basis for its motion and to point to portions of the record that indicate that there are no genuine issues of material fact on a material element of the non-moving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 1996 Ohio 107, 662 N.E.2d 264 (1996). Once the moving party has met its initial burden, the non-moving party must produce competent evidence establishing the existence of a genuine issue for trial. Id. Additionally, a moving party cannot discharge its burden under Civ.R. 56 simply by making conclusory assertions that the non-moving party has no evidence to prove its case. Id. Rather, the moving party must point to some evidence that affirmatively demonstrates that the non-moving party has no evidence to support his or her claims. Id. “Permitting a nonmoving party to avoid summary judgment by asserting nothing more than ‘bald contradictions [**8] of the evidence offered by the moving party’ would necessarily abrogate the utility of the summary judgment exercise. C.R. Withem Enterprises v. Maley, 5th dist. No. 01 CA 54, 2002 Ohio 5056, at ¶24. Courts would be unable to use Civ.R. 56 as a means of assessing the merits of a claim at an early stage of the litigation and unnecessary dilate the civil process.” Greaney v. Ohio Turnpike Comm., 11th Dist. No. 2005-P-0012, 2005 Ohio 5284, ¶ 16. Bearing this standard in mind, we shall address the two assignments of error as one.
[*P14] Because of the release signed by Lindsay’s mother and the doctrine of primary assumption of risk, Lindsay is precluded from bringing a negligence action against AmeriCheer. [HN5] Under the doctrine of primary assumption of the risk, a plaintiff voluntarily engaged in a recreational activity assumes the inherent risks of that activity and cannot recover for injuries sustained while engaging in that activity unless the defendant acted recklessly or intentionally in causing the injuries. Marchetti v. Kalish, 53 Ohio St.3d 95, 559 N.E.2d 699 (1990), syllabus; Crace v. Kent State Univ., 185 Ohio App.3d 534, 2009 Ohio 6898, ¶ 13, 924 N.E.2d 906 (10th Dist.).
[*P15] In Crace, this court found that the doctrine [**9] of primary assumption of risk barred a negligence claim against a university in connection with a cheerleading injury. Crace, the captain of the Kent State University varsity cheerleading team, was the flyer during a human pyramid stunt. The first two attempts failed, and both times Crace fell from around 15 feet in the air where the spotter at the front of the formation caught her. On the third attempt the stunt failed again. When Crace came down for the third time, the spotter behind her panicked, shielded his eyes and moved out of the way. As a result, Crace’s fall was unbroken, and caused catastrophic injuries. Id. at ¶ 7.
[*P16] As was the case with Crace, Lindsay can only proceed with her personal injury claims if AmeriCheer acted willfully, wantonly, or recklessly. The issue is whether Lindsay has set forth competent evidence establishing a genuine issue of material fact on the issue of willful, wanton, or reckless conduct.
[*P17] [HN6] Ordinarily, the issue of willful, wanton, or reckless conduct is a question for the jury. Matkovitch v. Penn Cent. Transp. Co., 69 Ohio St. 2d 210, 214, 431 N.E.2d 652 (1982). In order to find wanton misconduct, there must be a failure to exercise any care whatsoever by one who [**10] owes a duty of care to another, and the failure must occur under circumstances where there is a great probability that harm will result from the lack of care. Hawkins v. Ivy, 50 Ohio St.2d 114, 363 N.E.2d 367 (1977). By way of contrast, the term “negligence” is synonymous with heedlessness, thoughtlessness, inattention, inadvertence, and oversight, and conveys the idea of inadvertence as distinguished from premeditated or formed intention, or a conscious purpose to do a wrong act or to omit the performance of a duty. Tighe v. Diamond, 149 Ohio St. 520, 525, 80 N.E.2d 122 (1948). Negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor. Roszman v. Sammett, 26 Ohio St.2d 94, 96-97, 269 N.E.2d 420, (1971), paragraph two of the syllabus. Evidence of a disposition to perversity may be shown by acts of stubbornness, obstinacy, or persistency in opposing that which is right, reasonable, correct, or generally accepted as a course to follow in protecting the safety of others. Id.
[*P18] [HN7] Reckless disregard for the safety of another occurs if one does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know [**11] of facts which would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Thompson v. McNeill, 53 Ohio St.3d 102, 104-05, 559 N.E.2d 705 (1990).
[*P19] “What constitutes an unreasonable risk under the circumstances of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participants’ ideas of foreseeable conduct in the course of a game.” Id.
[*P20] Examining the evidence in the light most favorable to the non-moving party, Lindsay has set forth evidence that two of the three spotters provided by AmeriCheer were not in the positions they should have been at the time of the injury. Whether those actions or inactions create a factual issue as to wanton or reckless misconduct must be determined by applying the evidence to the standards for wanton or reckless disregard for safety. Only one of the spotters was on the mat during the formation of the stunt. The videotape of the competition was not made part of the record, and therefore it is not possible to determine the exact [**12] placement of the spotters during Lindsay’s routine. All that is known is that at least one spotter was standing on the edge of the mat, and two others were observing in the back. (Barbara Wolfe Depo., at 36.) According to Ms. Rossetti’s testimony while watching the video, the middle spotter was moving forward as the team was preparing to execute the mount. Barbara Wolfe estimated the spotters were at the edge of the mat approximately six to eight feet from the cheerleaders. (Barbara Wolfe Depo., at 72.) Lindsay estimated the spotters were 25 feet from where the cheerleaders were forming the stunt. (Lindsay Wolfe Depo., at 165.)
[*P21] Ms. Rossetti testified that spotters were not even necessary at AmeriCheer competitions, but were there to provide additional lines of safety and to help prevent injuries if they were able to do so. (Elizabeth Rossetti Depo., at 17.) When the cheerleaders are about to perform a stunt like the one in which Lindsay was injured, Ms. Rossetti said: “They should be present, near the – – on the mat. If they’re on the mat, they’re close enough to be at a given particular time, if they’re needed.” When asked where on the mat they should be positioned, Ms. Rossetti answered: [**13] “Well, it depends on the routine. It’s hard to point out. But there’s no – – again, it’s judgment on their part. It’s not trained; it’s learned. It’s judgment. If they feel that they can be there or they’re there, then it’s their judgment to make that call. * * * It’s not my judgment to make that call. * * * It’s their judgment to be on the mat and provide an additional level of safety, yes.” (Elizabeth Rossetti Depo, at 52.)
[*P22] In Dresher, 75 Ohio St.3d at 292, the Supreme Court of Ohio explicitly stated that [HN8] when a court receives a properly presented motion for summary judgment, a non-moving party may not rely upon the mere allegations of its complaint, but, instead, must demonstrate that a material issue of fact exists by directing the court’s attention to evidentiary materials of the type listed in Civ.R. 56(C). Id. Here, Lindsay has failed to cite to facts that support her contention. For example, Lindsay argues that there was a great probability that harm would result from lack of care. She claims that the spotters’ failure to move in when Lindsay’s team began the stunt is a perverse act and conscious disregard of their duty to provide safety. These types of statements add nothing [**14] to the analysis required by a court in addressing a motion for summary judgment.
[*P23] There is no evidence in the record that supports these assertions. Cheerleading carries inherent risks to those participants engaging in stunts of the kind performed at the Winter Championship. (Barbara Wolfe Depo., at 36; see Crace at ¶ 34, 35.) There was no evidence that in 2003 there were standards for spotters or even how many spotters were needed. (Elizabeth Rossetti Depo., at 17, 60.) The only evidence put forth was testimony that two of the spotters were not standing on the mat. Ms. Rossetti watched the video during her deposition, and testified that one spotter was moving in. (Elizabeth Rossetti Depo., at 90.) There was no testimony that the spotters had a duty to move closer when the team began the stunt apart from Lindsay’s observation that at every competition she attended the spotters would walk up. (Lindsay Wolfe Depo., at 66-67.) Lindsay claims that when the cheerleaders were practicing or learning stunts that the coaches stood on the mat and spotted for them. While for summary judgment purposes this statement is taken as true, it is somewhat of a red herring. Ms. Rossetti testified that, [**15] at camp, the spotters can be close by, but, in a competition, they cannot always be on top of them because they will interfere with something else going on. (Elizabeth Rossetti Depo., at 91.) Lindsay also testified that the coaches spotted them during practices. She then stated: “Once we were comfortable with, you know, and they were comfortable with us doing it, yes, they would like stand on the edge of the mat and watch.” (Lindsay Wolfe Depo., at 66.) Taken at face value, by the time a team is ready to perform the routine in competition, the coaches, who formerly spotted, would stand at the edge of the mat. Thus, the evidence suggests the spotters were properly positioned. Even if, as Lindsay testified, the spotters should have moved closer in preparation for the stunt, at least one of them did. These facts do not demonstrate a disposition to perversity on the part of the spotters or a failure to exercise any care whatsoever. Therefore, an issue as to whether the spotters’ conduct was wanton does not exist.
[*P24] Similarly, evidence regarding reckless misconduct is lacking. As stated above, in order to show reckless misconduct, one must act or intentionally fail to act when it is his duty [**16] to the other to do so, knowing or having reason to know of facts which would lead a reasonable person to realize, not only that his conduct creates an unreasonable risk of harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent. Thompson, 53 Ohio St.3d at 104-05.
[*P25] The [**17] unrefuted evidence is that in 2003 AmeriCheer was under no duty to provide spotters at its competitions, but did provide them to create an additional layer of safety. There was testimony that the spotters were, themselves, trained cheerleaders from AmeriCheer’s summer camp. There was no evidence that AmeriCheer inadequately trained its spotters. According to Lindsay, the spotters were in a location where coaches would stand after they were comfortable with how the cheerleaders were performing the routine. Lindsay testified that she had no opportunity to catch the flyer as she was falling. Lindsay’s mother believed that if the spotters had been doing their job the accident probably would not have been as severe or have happened. She also acknowledged that it was possible that the spotter could have been right there and not have been able to stop the accident.
[*P26] There is no evidence that the spotters themselves recognized any facts that would lead them to believe that their conduct could or did create an unreasonable risk of harm to another. There was no evidence at all from the spotters at the event. At best, their actions could be considered negligent. Therefore, Lindsay has failed to [**18] establish a genuine issue of material fact with regard to recklessness.
[*P27] The first assignment of error is overruled. The second assignment of error is also overruled since all parties relied on the deposition testimony of Ms. Rossetti and, as discussed above, it was not error for the trial court to rely on the excerpts. Since our review is de novo and we considered all the evidence that was in the record, there was no error.
[*P28] It is unfortunate that Lindsay was seriously injured at the competition, and we realize that, because of the accident, she has suffered a great deal. But there was no evidence of recklessness or wantonness that renders AmeriCheer liable for damages.
[*P29] Accordingly, appellant’s assignments of error are overruled and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BROWN, P.J., and DORRIAN, J., concur.
Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)
Posted: June 11, 2012 Filed under: Legal Case, Minors, Youth, Children, Ohio, Sports | Tags: #Soccer, #Zivich, Minor, Ohio, Release, Supreme Court of Ohio Leave a commentZivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)
696 N.E.2d 201
ZIVICH ET AL., APPELLANTS, v. MENTOR SOCCER CLUB, INC., APPELLEE, ET AL.
No. 97-1128
Submitted April 21, 1998 –
Decided June 29, 1998.
APPEAL from the Court of Appeals for Lake County, No. 95-L-184.
In May 1993, appellant Pamela Zivich registered her seven-year-old son, appellant Bryan Zivich, for soccer with Mentor Soccer Club, Inc. (“Club”), appellee, for the 1993-1994 season. The Club is a nonprofit organization that provides children in the greater Mentor area with the opportunity to learn and play soccer. The Club is primarily composed of parents and other volunteers who provide their time and talents to help fulfill the Club’s mission. The Club’s registration form, signed by Mrs. Zivich, contained the following language:
“Recognizing the possibility of physical injury associated with soccer and for the Mentor Soccer Club, and the USYSA [United States Youth Soccer Association] accepting the registrant for its soccer programs and activities, I hereby release, discharge and/or otherwise indemnify the Mentor Soccer Club and the USYSA, its affiliated organizations and sponsors, their employees, and associated personnel, including the owners of the fields and facilities utilized by the Soccer Club, against any claim by or on behalf of the registrant as a result of the registrant’s participation in the Soccer Club * * *.”
On October 7, 1993, Bryan attended soccer practice. During practice, the boys participated in an intrasquad scrimmage. Bryan’s team won. After the scrimmage, Bryan ran to his father, who was standing on the sidelines and talking with the coach. Excited about the win, Bryan, unsupervised, jumped on the goal and swung back and forth on it. The goal, which was not anchored down, tipped backward. Bryan fell, and the goal came down on his chest, breaking three of his ribs and collarbone, and severely bruising his lungs.
In January 1995, Bryan’s parents, Philip and Pamela Zivich, appellants, sued the Club[fn1] for injuries sustained by Bryan. The complaint alleged negligence and reckless misconduct.[fn2] The Club moved for summary judgment on the ground that the release executed by Bryan’s mother barred the claims. The trial court agreed and granted the Club’s summary judgment motion.
The court of appeals affirmed, albeit partly on different grounds. In Judge Nader’s majority opinion, in which Judge Christley “reluctantly” joined, he said that the exculpatory agreement was effective against Mr. and Mrs. Zivich, but not against Bryan. Thus, while the trial court was correct to grant summary judgment, Bryan still had a cause of action which a guardian could bring on his behalf or which he could assert once he gained the age of majority. Judge Nader acknowledged the public policy in favor of enforcing the agreement against Bryan, but found that that decision was best left to the General Assembly or this court. Additionally, Judge Nader’s majority opinion found no evidence to support the willful and wanton misconduct claim. Concurring in the result only, Judge Ford opined that the public policy of Ohio favors enforcement of the agreement against Bryan as well as his parents. Judge Christley “wholehearted[ly] endorse[d]” the policy advocated by Judge Ford, but agreed with Judge Nader that the issue should be resolved by the General Assembly or this court.
The cause is now before this court pursuant to the allowance of a discretionary appeal.
[fn1] Appellants also sued the city of Mentor, which owned the park where practice was held. The city settled with appellants, and this court dismissed it from the lawsuit in December 1997. 80 Ohio St.3d 1474, 687 N.E.2d 471.
[fn2] Other claims were asserted, but they are not at issue here.
Svete, McGee & Carrabine Co., L.P.A., and James W. Reardon, for appellants.
Reminger & Reminger Co., L.P.A., George S. Coakley, Laura M. Sullivan and Brian D. Sullivan, for appellee.
FRANCIS E. SWEENEY, SR., J.
We are asked to decide whether the exculpatory agreement[fn3] executed by Mrs. Zivich on behalf of her minor son released the Club from liability for the minor child’s claims and the parents’ claims as a matter of law. We find that the exculpatory agreement is valid as to all claims. Summary judgment was appropriately entered in the Club’s favor. The judgment of the court of appeals is affirmed.
Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264, 273-274.
Appellants argue that since practice had concluded, the injury occurred outside the scope of the exculpatory agreement. We find this contention meritless. We quote, with approval, Judge Nader’s majority opinion rejecting this argument: “It should not come as any great surprise for a parent to learn that, during a period of inactivity at a soccer practice, his or her child fiddled with loose equipment, climbed on nearby bleachers, or scaled the goal. It should be equally clear that coaches supervising the practices will not be able to completely prevent such unauthorized activity, as some degree of bedlam is unavoidable, when children of tender years are brought together to play a game, and when their emotions are aroused. The risk of a seven[-]year[-]old child climbing on a goal shortly after winning an intrasquad scrimmage is, therefore, a natural incident of his participation in soccer practice. Thus, Bryan’s injuries fall within the ambit of the release.”
We next consider whether the release is valid. With respect to adult participants, the general rule is that releases from liability for injuries caused by negligent acts arising in the context of recreational activities are enforceable. Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 90, 585 N.E.2d 384, 390; Simmons v. Am. Motorcyclist Assn., Inc. (1990), 69 Ohio App.3d 844, 846, 591 N.E.2d 1322, 1324; Cain v. Cleveland Parachute Training Ctr. (1983), 9 Ohio App.3d 27, 9 OBR 28, 457 N.E.2d 1185. These holdings recognize the importance of individual autonomy and freedom of contract. Here, however, the exculpatory agreement was executed by a parent on behalf of the minor child.
Appellants contend that the release is invalid on public policy grounds. In support of their argument, they refer to the general principle that contracts entered into by a minor, unless for “necessaries,” are voidable by the minor, once the age of majority is reached, or shortly thereafter. Restatement of the Law 2d, Contracts (1979), Sections 7, 12, and 14, and Comment f to Section 12. Appellants urge us to apply the seminal case of Wagenblast v. Odessa School Dist. No. 105-157-166J (1988), 110 Wn.2d 845, 851-852, 758 P.2d 968, 971, where the Washington Supreme Court relied upon Tunkl v. Regents of Univ. of California (1963), 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, and set forth a six-part test to determine whether a particular release violates public policy. The Club, however, argues that the proper focus is not whether the release violates public policy but rather that public policy itself justifies the enforcement of this agreement. This is also the position advocated by Judge Ford in his concurring opinion. We agree with the Club and Judge Ford.[fn4]
The General Assembly has enacted statutes designed to encourage landowners to open their land to public use for recreational activities without fear of liability. Moss v. Dept. of Natural Resources (1980), 62 Ohio St.2d 138, 142, 16 O.O.3d 161, 164, 404 N.E.2d 742, 745. See R.C. 1533.18 and 1533.181, which together provide that private entities that hold land open for recreational use without charge are immune from tort liability for any injury caused by a recreational user. Then, in 1996, R.C. 2305.381 and 2305.382[fn5] were enacted, effective January 27, 1997. Together, these statutes accord qualified immunity to unpaid athletic coaches and sponsors of athletic events. Hence, the General Assembly has articulated its intent of encouraging the sponsorship of sports activities and protecting volunteers. However, R.C. 2305.381 and 2305.382 were enacted after this cause of action arose. Thus, our role is to render a decision that fills the gap left open before the effective date of the statutory enactments.
It cannot be disputed that volunteers in community recreational activities serve an important function. Organized recreational activities offer children the opportunity to learn valuable life skills. It is here that many children learn how to work as a team and how to operate within an organizational structure. Children also are given the chance to exercise and develop coordination skills. Due in great part to the assistance of volunteers, nonprofit organizations are able to offer these activities at minimal cost. In fact, the American Youth Soccer Organization pays only nineteen of its four hundred thousand staff members. The Little League pays only seventy of its 2.5 million members. See King, Exculpatory Agreements for Volunteers in Youth Activities – The Alternative to “Nerf” Tiddlywinks (1992), 53 Ohio St.L.J. 683, 759, fns. 208 and 209. Clearly, without the work of its volunteers, these nonprofit organizations could not exist, and scores of children would be without the benefit and enjoyment of organized sports. Yet the threat of liability strongly deters many individuals from volunteering for nonprofit organizations. Developments in the Law – Nonprofit Corporations – Special Treatment and Tort Law (1992), 105 Harv.L.Rev. 1667, 1682. Insurance for the organizations is not the answer, because individual volunteers may still find themselves potentially liable when an injury occurs. Markoff, Liability Threat Looms: A Volunteer’s Thankless Task (Sept. 19, 1988), 11 Natl.L.J. 1, 40. Thus, although volunteers offer their services without receiving any financial return, they place their personal assets at risk. See Developments, supra, 105 Harv.L.Rev. at 1692.
Therefore, faced with the very real threat of a lawsuit, and the potential for substantial damage awards, nonprofit organizations and their volunteers could very well decide that the risks are not worth the effort. Hence, invalidation of exculpatory agreements would reduce the number of activities made possible through the uncompensated services of volunteers and their sponsoring organizations.
Therefore, we conclude that although Bryan, like many children before him, gave up his right to sue for the negligent acts of others, the public as a whole received the benefit of these exculpatory agreements. Because of this agreement, the Club was able to offer affordable recreation and to continue to do so without the risks and overwhelming costs of litigation. Bryan’s parents agreed to shoulder the risk. Public policy does not forbid such an agreement. In fact, public policy supports it. See Hohe v. San Diego Unified School Dist. (1990), 224 Cal.App.3d 1559, 1564, 274 Cal.Rptr. 647, 649. Accordingly, we believe that public policy justifies giving parents authority to enter into these types of binding agreements on behalf of their minor children. We also believe that the enforcement of these agreements may well promote more active involvement by participants and their families, which, in turn, promotes the overall quality and safety of these activities. See King, supra, 53 Ohio St. L.J. at 709.
Another related concern is the importance of parental authority. Judge Ford’s concurring opinion also embraces this notion. Citing In re Perales (1977), 52 Ohio St.2d 89, 96, 6 O.O.3d 293, 296-297, 369 N.E.2d 1047, 1051, fn. 9; In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169, 1171; and State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 8, 15 O.O.3d 3, 4-5, 399 N.E.2d 66, 67, Judge Ford found that the right of a parent to raise his or her child is a natural right subject to the protections of due process. Additionally, parents have a fundamental liberty interest in the care, custody, and management of their offspring. Further, the existence of a fundamental, privacy-oriented right of personal choice in family matters has been recognized under the Due Process Clause by the United States Supreme Court. See Meyer v. Nebraska (1923), 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; Santosky v. Kramer (1982), 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599.
Based upon these protections, Judge Ford believes that many decisions made by parents “fall within the penumbra of parental authority, e.g., the school that the child will attend, the religion that the child will practice, the medical care that the child will receive, and the manner in which the child will be disciplined.” He found it notable that the law empowers a parent to consent to medical procedures for a minor child (R.C. 2317.54[C]), gives a parent the general authority to decide to decline medical treatment for the child, and destroys the child’s cause of action for battery when consent is given. See Lacey v. Laird (1956), 166 Ohio St. 12, 19, 1 O.O.2d 158, 161, 139 N.E.2d 25, 30 (Hart, J., concurring). Thus, Judge Ford believes that invalidating the release as to the minor’s claim is inconsistent with conferring other powers on parents to make important life choices for their children.
Nor is it appropriate to equate a preinjury release with a postinjury release. As one commentator aptly explains:
“The concerns underlying the judiciary’s reluctance to allow parents to dispose of a child’s existing claim do not arise in the situation where a parent waives a child’s future claim. A parent dealing with an existing claim is simultaneously coping with an injured child; such a situation creates a potential for parental action contrary to that child’s ultimate best interests.
“A parent who signs a release before her child participates in a recreational activity, however, faces an entirely different situation. First, such a parent has no financial motivation to sign the release. To the contrary, because a parent must pay for medical care, she risks her financial interests by signing away the right to recover damages. Thus, the parent would better serve her financial interests by refusing to sign the release.
“A parent who dishonestly or maliciously signs a preinjury release in deliberate derogation of his child’s best interests also seems unlikely. Presumably parents sign future releases to enable their children to participate in activities that the parents and children believe will be fun or educational. Common sense suggests that while a parent might misjudge or act carelessly in signing a release, he would have no reason to sign with malice aforethought.
“Moreover, parents are less vulnerable to coercion and fraud in a preinjury setting. A parent who contemplates signing a release as a prerequisite to her child’s participation in some activity faces none of the emotional trauma and financial pressures that may arise with an existing claim. That parent has time to examine the release, consider its terms, and explore possible alternatives. A parent signing a future release is thus more able to reasonably assess the possible consequences of waiving the right to sue.” Purdy, Scott v. Pacific West Mountain Resort: Erroneously Invalidating Parental Releases of a Minor’s Future Claim (1993), 68 Wn.L.Rev. 457, 474.
These comments were made in a law review article criticizing the Washington Supreme Court’s decision in Scott v. Pacific W. Mountain Resort (1992), 119 Wn.2d 484, 834 P.2d 6. In that case, the court found that a release, signed by the mother so that her son could take ski-racing lessons, was invalid as to the minor’s claim. In Scott, the court had reasoned that it made no sense to treat a child’s preinjury and postinjury property rights differently. Id. at 494, 834 P.2d at 11-12. The article criticized this decision, noting that when the mother signed the release, she gave her son the opportunity to ski. She gained no financial advantage for herself, nor did she suffer from fraud or collusion. She was under no financial or emotional pressure when she signed. The article states that “while she may have misjudged the risk to her son, Mrs. Scott did not mismanage or misappropriate Justin’s property. She did her best to protect Justin’s interests, and the court need not step in to do so.” Id., 68 Wn.L.Rev. at 474-475.
We agree with Judge Ford’s concurring opinion and the reasoning contained in the foregoing law review article. When Mrs. Zivich signed the release she did so because she wanted Bryan to play soccer. She made an important family decision and she assumed the risk of physical injury on behalf of her child and the financial risk on behalf of the family as a whole. Thus, her decision to release a volunteer on behalf of her child simply shifted the cost of injury to the parents. Apparently, she made a decision that the benefits to her child outweighed the risk of physical injury. Mrs. Zivich did her best to protect Bryan’s interests and we will not disturb her judgment. In fact, the situation is more analogous to Ohio’s informed consent law than to the law governing children’s property rights. See R.C. 2317.54(C), which gives parents the authority to consent to medical procedures on a child’s behalf. In both cases, the parent weighs the risks of physical injury to the child and the attendant costs to herself against the benefits of a particular activity.
Therefore, we hold that parents have the authority to bind their minor children to exculpatory agreements in favor of volunteers and sponsors of nonprofit sport activities where the cause of action sounds in negligence. These agreements may not be disaffirmed by the child on whose behalf they were executed.
Having upheld the release agreement against Bryan’s claims, we find it also valid as to Mr. and Mrs. Zivich’s claims for loss of consortium. Mrs. Zivich, the signatory on the agreement, acknowledged that she had read its contents and did not ask any questions about them. Parents may release their own claims growing out of injury to their minor children. See, e.g., Simmons v. Parkette Natl. Gymnastic Training Ctr. (E.D.Pa. 1987), 670 F. Supp. 140, 142; Childress v. Madison Cty. (Tenn.App. 1989), 777 S.W.2d 1, 6; Scott, supra, 119 Wn.2d 484, 834 P.2d 6. We adopt this rule of law, finding it consistent with principles of freedom of contract. Thus, we hold that parents may release their own claims arising out of the injury to their minor children. Accordingly, we find that Mrs. Zivich is barred from recovery as to her claims.
We further find that Philip Zivich’s[fn6] loss of consortium claim is also barred as a matter of law. Although Mr. Zivich did not personally sign the release agreement, he accepted and enjoyed the benefits of the contract. In fact, when the injury occurred, Mr. Zivich was the parent who was at the practice field that evening. Thus, Mr. Zivich’s conduct conveys an intention to enjoy the benefits of his wife’s agreement and be bound by it. Under the doctrine of estoppel by acquiescence, Mr. Zivich may not assert his rights against the Club. Natl. Football League v. Rondor, Inc. (N.D.Ohio 1993), 840 F. Supp. 1160, 1167.
As a separate ground for recovery, appellants also contend that the injury was caused by the Club’s willful and wanton misconduct. In McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 246, 31 OBR 449, 451, 510 N.E.2d 386, 388-389, this court defined “willful” misconduct as conduct involving “`an intent, purpose or design to injure.'” Id., quoting Denzer v. Terpstra (1934), 129 Ohio St. 1, 1 O.O. 303, 193 N.E. 647, paragraph two of the syllabus. “Wanton” misconduct was defined as conduct where one “`fails to exercise any care whatsoever toward those to whom he owes a duty of care, and [t]his failure occurs under circumstances in which there is a great probability that harm will result.'” McKinney, 31 Ohio St.3d at 246, 31 OBR at 451, 510 N.E.2d at 388-389, quoting Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 4 O.O.3d 243, 363 N.E.2d 367, syllabus. We have held that while a participant in recreational activities can contract with the proprietor to relieve the proprietor from any damages or injuries he may negligently cause, the release is invalid as to willful and wanton misconduct. Bowen, supra, 63 Ohio St. 3d at 90, 585 N.E.2d at 390.
To support this claim, appellants assert that the Club’s former president, David Bolsen, attended a seminar just before his term of office ended. It was at the seminar that he learned of the need to anchor the goals and to post warning labels on them. Bolsen testified that because his term expired two weeks later, he had time to relay the information only to a few persons. However, no action was taken to secure the goals.
Appellants argue that Bolsen’s failure to take more affirmative steps to ensure that the Club and the city implemented the safety recommendations amounts to willful and wanton misconduct. Like the court of appeals, we reject this argument.
There is no evidence that the former president intended that Bryan should be injured. Nor did the former president utterly fail to exercise any care whatsoever. Even accepting as true the appellants’ claim that club officials knew about the safety problems but failed to act, this action does not amount to willful and wanton misconduct. As noted by the appellate court, “Park officials testified that the City never had anchored the goals in the past, and, apparently, of the thousands of young boys and girls playing soccer in the youth league throughout the years, no other child had been injured in this manner.” Thus, reasonable minds could not conclude that the risk posed by the unanchored goal was so great as to require immediate remedial action.
Moreover, the evidence established that the city, not the Club, was responsible for the upkeep of the soccer fields and the purchase, storage, maintenance, and placement of the soccer goals.
We find that appellants failed to produce sufficient evidence to present a jury question on the claim of willful and wanton misconduct.
Accordingly, we affirm the court of appeals’ judgment, albeit on somewhat different grounds. We uphold its decision that the release is valid as to the parents’ claims. However, we hold that the release is also valid as to the minor child’s claim.
Judgment affirmed.
MOYER, C.J., RESNICK, COOK and LUNDBERG STRATTON, JJ., concur.
DOUGLAS and PFEIFER, JJ., concur in judgment only.
[fn3] The words “release,” “waiver” and “exculpatory agreement” have been used interchangeably by the courts. These defenses are based on contract principles. “Exculpatory agreements, also called `releases’ or `waivers,’ are basically written documents in which one party agrees to release, or `exculpate,’ another from potential tort liability for future conduct covered in the agreement.” King, Exculpatory Agreements for Volunteers in Youth Activities – The Alternative to “Nerf” Tiddlywinks (1992), 53 Ohio St. L.J. 683.
[fn4] The majority opinion stated that an intermediate appellate court was not the appropriate forum to decide public policy. However, in a common-law system, a judicial decision declaring the rights of the parties can be based on several grounds, one of which is public policy. Hopkins, Public Policy and the Formation of a Rule of Law (1971), 37 Brooklyn L.Rev. 323, 330. Therefore, public policy is an appropriate device to be used by an appellate court to decide a case.
[fn5] Am.Sub.H.B. No. 350, 146 Ohio Laws, Part II, 3867, 3931. Our statutory law is in line with the many “volunteer statutes” passed by other states. See McCaskey and Biedzynski, A Guide to the Legal Liability of Coaches for a Sports Participant’s Injuries (1996), 6 Seton Hall J. of Sport L. 7, 62-63 (citing statutes).
[fn6] In the court of appeals, Mr. Zivich also argued that summary judgment was improper as to his claim for negligent infliction of emotional distress. However, he does not raise this claim here. Accordingly, we do not address this issue.
COOK, J., concurring.
I join in the well-reasoned majority opinion. I write separately only to point out that today’s decision is firmly grounded in the public policy of the General Assembly, as evinced by the legislative enactments cited by the majority.
You’re Invited to the 2012 International Climbers’ Meet, hosted by the AAC
Posted: June 7, 2012 Filed under: Youth Camps, Zip Line | Tags: #AAC, American Alpine Club, Climbing, Edmund Hillary, George Lowe, International Climber’s Meet, Mount Everest, Rock climbing, Tenzing Norgay, Yosemite, Yosemite National Park, Yosemite Valley Leave a comment
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Pathways to Natural Resources Careers Summit
Posted: April 17, 2012 Filed under: Youth Camps, Zip Line | Tags: #BLM, #CYCA, Bureau of Land Management, Careers, Colorado Parks & Wildlife, Colorado State University, Cornell University, Employment, Natural resource, Natural Resources, Youth Leave a commentI am pleased to announce that we will be holding our follow-up meeting to the Pathways to Natural Resources Careers Summit on April 24th from 9:00 to 11:30 in the Hunter Education Room of the Colorado Parks & Wildlife building located at 6060 Broadway, Denver, CO 80216. The agenda for this event was generated by participants who attended the Pathways to Natural Resources Careers Summit held on February 23rd, co-hosted by CYCA and BLM.. With record numbers of Agency staff poised to retire and youth and young adult unemployment at 20%, this issue is of great importance.
The primary request at the conclusion of the February Summit was to conduct an inventory of existing resources for assisting young people to chart careers in natural resources – especially in State and Federal agencies. To that end, on April 24 we will:
1 – conduct a resource inventory
2 – identify resource gaps (by geographic area, age group, and target population)
Bureau of Land Management logo (Photo credit: Wikipedia)
3 – identify 2-3 action steps we can take in the next 12 months to fill those gaps
As such, please bring any and all of the electronic or hard copy resources you have that pertain to creating a path to employment in the natural resources sector. We will have laptops, and a projector and screen to enable review of electronic resources; please bring several copies of your hard copy materials for review by small groups. Load e-resources on a flash drive. If you are not able to attend, we encourage you to submit resources to us in advance so that they can be considered during the meeting. Please send them to Grant Sanford (gsanford).
Even if you were not able to attend the February Summit, we encourage you to attend this meeting and offer your insight on the topic.
I have attached the summary document from the first Pathways Summit compiled by facilitator Wendy Newman. As this summary illustrates, there are a number of short-term goals that we can collectively achieve through a focused effort. The first step is determining what resources are immediately available and what remains to be created, refined, and implemented. Your assistance and contributions are critical in achieving these goals and ultimately providing natural resource career opportunities to a broad base of young people.
There is no charge for the meeting. To RSVP, follow this link: nweil or 303-863-0603.
Light breakfast refreshments along with coffee and tea will be provided; please bring your own beverage container. RSVP by Tuesday, April 17, 2012.
Feel free to forward this email to other interested individuals.
Pathways_ConclusionsFINAL.docx
Summer Camp, Zip line injury and confusing legal analysis in Washington
Posted: April 16, 2012 Filed under: Minors, Youth, Children, Summer Camp, Washington, Youth Camps, Zip Line | Tags: Defendant, Duty of care, Plaintiff, Ropes course, Summary judgment, Summer Camp, zip line, Zip-line, Zipline Leave a comment
A 200′ Mammoth Deluxe zip line installed over a pond. (Photo credit: Wikipedia)
Facts, no prepared defense and the plaintiff will get to go to trial.
In this case, I think the parents of a child who was attending the summer camp opted to ride the camp zip line. The zip line had two ropes that attached the rider to the haul line. The adult plaintiff when getting ready to ride wrapped one rope around his fingers. When he launched, the rope tightened almost severing his fingers.
The defendant filed a motion for summary judgment. However, the analysis by the court did not read like the normal decisions on motions for summary judgment and started out by denying part of the plaintiff’s argument.
Summary of the case
The plaintiff argued the summer camp, landowner, owed him a duty of ordinary care. The court found this really did not apply to this case, and the duty was a duty to disclose rather than a duty of ordinary care. However, the court allowed this argument to proceed.
Under Washington’s law, the duty of ordinary care is defined as:
a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
The court then argued that the plaintiff was arguing the wrong legal issues because the plaintiff was arguing the plaintiff was a landowner; however, the injury did not occur on the land.
Because the injury the plaintiff received was based on the acts of the plaintiff, wrapping a rope around his hand, there was no violation of a duty by the defendant.
Plaintiff’s injury was the natural result of wrapping a rope around one’s hand and then suspending one’s body from that rope. This was not a latent or hidden condition that only defendant could know. Common sense of a capable adult is sufficient to inform a rider of this danger. Plaintiff admitted as much in his deposition:
Q. Did you know that if you wrapped the rope around your fingers, and then you put weight on the rope, that would tighten and cinch around your fingers?
A. The thought did not cross my mind.
Q. Okay. You didn’t think about that correct?
A. Correct.
Q. But if you had thought about it, you would have been able to figure that out, correct?
A. If someone asked me?
Q. Yes.
A. Yes.
Because the plaintiff admitted that if he thought about it, he would have realized that his actions would injure his hand, the defendant did not owe him a greater duty than it had done.
The plaintiff then stretched with two additional causes or claims. The first was the defendant had violated a state statute because the zip line was not inspected by the state. However, the statute that the plaintiff tried to apply, the amusement ride statute, did not include zip lines in its definitions until after the plaintiff’s accident. The statute at the time the plaintiff was injured did not apply to zip lines.
The next argument is farther out there, and exponentially scarier. The plaintiff argued that a zip line should be classified as a common carrier. A common carrier under most state interpretations are airlines, trains, buses, etc. Those types of transportation, carriers for hire, where the customer pays to be moved from one place to the next owe their customers the highest degree of care. The transportation must be for the purpose of movement, not amusement. The scary part is a common carrier owes the highest degree of care to its customers.
This definition means that a common carrier is liable in most situations for any injury to its passengers.
However, the court did not find a zip line was a common carrier. Thankfully.
So Now What?
The obvious issue that was missed, was the camp should have been using a release. An adult is on the property having fun; an injury will occur.
A motion for summary judgment is used when the legal arguments against a claim are sufficient to eliminate that claim. In most cases, this ends the lawsuit as long as all claims are ruled in favor of the defendant. Here the one claim, no matter how sketchy is probably going to allow the plaintiff to recover some amount of money.
Based on the ruling, the plaintiff will get his day in court or be paid not to go to court. A slip when someone is loading a zip line, no release and a traumatic injury add up to a big lawsuit.
What do you think? Leave a comment.
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Oldja v.Warm Beach Christian Camps and Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966
Posted: April 16, 2012 Filed under: Legal Case, Minors, Youth, Children, Summer Camp, Washington, Youth Camps, Zip Line | Tags: Camp, SEATTLE, Summer Camp, zip line Leave a commentOldja v.Warm Beach Christian Camps and Conference Center, 793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966
Ted Oldja, Plaintiff, v. Warm Beach Christian Camps and Conference Center, Defendant.
CASE NO. C09-0122-JCC
United States District Court for the Western District of Washington
793 F. Supp. 2d 1208; 2011 U.S. Dist. LEXIS 67966
June 24, 2011, Decided
June 24, 2011, Filed
COUNSEL: [**1] For Ted Oldja, Plaintiff: Kenneth R Friedman, LEAD ATTORNEY, FRIEDMAN RUBIN, BREMERTON, WA; Michael N White, FRIEDMAN RUBIN, (BREMERTON), BREMERTON, WA.
For Warm Beach Christian Camps and Conference Center, Defendant: David R Goodnight, Vanessa Soriano Power, STOEL RIVES (WA), SEATTLE, WA; Francis S Floyd, Nicholas L Jenkins, FLOYD PFLUEGER & RINGER PS, SEATTLE, WA.
JUDGES: John C. Coughenour, UNITED STATES DISTRICT JUDGE.
OPINION BY: John C. Coughenour
OPINION
[*1209] ORDER
This matter comes before the Court on Defendant’s motion for summary judgment (Dkt. No. 49), Plaintiff’s response (Dkt. No. 53), and Defendant’s reply. (Dkt. No. 59.) Having thoroughly considered the parties’ briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motion for the reasons explained herein.
I. BACKGROUND
In the summer of 2007, Ted Oldja attended a camp at Warm Beach Christian Camp (“Warm Beach”) in Stanwood, Washington. Mr. and Mrs. Oldja decided to ride on the zip line operated by Warm Beach. The zip line carried riders in a harness suspended from a cable by two ropes: a white rope, which acts as the primary connection between the harness and the cable, and bears the load of the rider’s weight; and [**2] a black rope, which acts as a secondary connection between the harness and the cable, and can be used as a safety line to slow the rider down.
Before a user rides the zip line, it is the job of the launch facilitator to follow a safety procedure. First, the facilitator tells the rider that they can hold on to either the white and black ropes during the ride, or just the white rope. The facilitator instructs riders not to hold only the black secondary line, because it will slow them down or stop them completely. The facilitator then double-checks the harness configuration, pulley attachments, safety helmet, and carabiners. The launch facilitator calls “zip clear” to the landing facilitator to communicate that the rider is ready, and the landing facilitator responds “zip clear” to communicate that the path is clear for the rider.
After watching his wife on the ride, it was Mr. Oldja’s turn. The launch facilitator, Paul Matthewson, testified that he followed the proper safety procedures. (Dkt. No. 49 Ex. 2 at 51- 53.) Matthewson testified that he did not see Oldja wrap his fingers in the white primary rope, and that Oldja’s fingers were not wrapped in the rope when Matthewson cleared him [**3] to go. (Id. at 60.) Sometime after Matthewson called “zip clear,” Mr. Oldja, a mechanical engineer, wrapped his fingers in the white primary rope, and stepped off the platform. The load-bearing rope tightened [*1210] around his hand and crushed his fingers. Mr. Oldja was rushed to a hospital and has had several surgeries on his hand. Plaintiff filed suit against Warm Beach for negligence, product liability, and negligence per se under a variety of theories. Defendant now moves for summary judgment dismissal of all three of these claims. Plaintiff does not oppose summary judgment on the product liability claim.
II. APPLICABLE LAW
[HN1] Federal Rule of Civil Procedure 56(c) mandates that a motion for summary judgment be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). There exists a genuine issue as to a particular fact–and hence that fact “can be resolved only by a finder of fact” at trial–when “[it] may reasonably be resolved in favor of either party”; conversely, there exists no genuine issue when reasonable [**4] minds could not differ as to the import of the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Whether a particular fact is material, in turn, is determined by the substantive law of the case: “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Summary judgment, then, demands an inquiry into “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”; if applying the relevant law to those facts about which no two reasonable factfinders could disagree dictates that the moving party must prevail, then a motion for summary judgment must be granted. Id. at 250-52.
III. DISCUSSION
A. Duty of Ordinary Care
Plaintiff argues that it is well established that every business has a duty to use ordinary care in keeping its premises reasonably safe for use by business invitees. (Dkt. No. 53 at 10.) Defendant argues that Section 388 of the Second Restatement of Torts should govern the analysis. [**5] The Court addresses Section 388 below, but Section 388 governs only the duty to disclose and does not govern the duty of ordinary care. Defendant has not shown an absence of a genuine issue of material fact with respect to its alleged breach of the duty of ordinary care. Accordingly, summary judgment dismissal of this claim is denied.
B. Duty to Disclose
[HN2] With reference to a duty to disclose, The Supreme Court of Washington has adopted Section 388 of the Second Restatement of Torts, which states that the supplier is liable if he:
a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Fleming v. Stoddard Wendle Motor Co., 70 Wn.2d 465, 423 P.2d 926, 928 (Wash. 1967).
Plaintiff argues that he is choosing not to pursue his claims under Section 388. Rather, Plaintiff argues that the Court [*1211] should consider Section 343A, which creates a duty to protect invitees from known or obvious dangers when the [**6] landowner should anticipate the harm despite such knowledge and obviousness.
Plaintiff is misguided. [HN3] He may choose the claims he brings, but he cannot choose the standard the Court will apply to those claims. Section 343 governs liability for an activity or condition on the land. Section 388 governs liability for use of a chattel. “Chattel” means movable or transferable property. Black’s Law Dictionary (9th ed. 2009). Defendant argues that the zip line is movable property, and Plaintiff does not challenge this characterization. The Court agrees. Plaintiff’s injury was caused by equipment on the land, not the land itself. Accordingly, Section 388 governs Plaintiff’s claims. Lunt v. Mt. Spokane Skiing Corp., 62 Wn. App. 353, 814 P.2d 1189, 1192 (Wash. Ct. App. 1991) (where injury arises from equipment not land, Section 388 not Section 343 governs).
[HN4] Each of the three criteria in Section 388 must be satisfied. The Court will begin with consideration of the second criterion. To prevail on this element at the summary judgment phase, Plaintiff must show some evidence that Defendant had no reason to believe that riders of the zip line would realize the dangerous condition. This is a dense piece of legal language, [**7] so an illustration is helpful.
In Fleming v. Stoddard Wendle Motor Co., 70 Wn.2d 465, 423 P.2d 926 (Wash. 1967), a man disabled a safety feature on a truck that was designed to prevent the motor from starting if the car was in gear. He sold the truck to a mechanic and did not disclose that the safety feature had been disabled. When the purchaser started the truck, it lurched forward, striking and injuring the plaintiff. The Supreme Court of Washington noted that the man who had sold the car had no reason to believe that any future operator of the car would know that the safety feature had been disabled. Id. at 928. Because the seller had no reason to believe the defect would be discovered, he had a duty to warn of that defect. The defect was latent and no amount of common sense or automotive knowledge could inform a driver about that particular hazard. Dismissal of the seller was reversed.
In contrast, Mele v. Turner, 106 Wn.2d 73, 720 P.2d 787 (Wash. 1986) concerns a case where a young man borrowed a lawn mower from his neighbors, inserted his hand into the mower housing to clean out some wet grass, and injured four fingers. The young man admitted in an affidavit: “I obviously realized that one should not put [**8] his hand under the machine where the blade runs . . . .” Id. at 790. The Court held that because the dangerous condition was obvious and known, defendants had no legal duty to warn. Id. There was nothing latent about the defect, and common sense would inform the user of the hazard.
The present case is much closer to Mele than Fleming. Plaintiff’s injury was the natural result of wrapping a rope around one’s hand and then suspending one’s body from that rope. This was not a latent or hidden condition that only Defendant could know. Common sense of a capable adult is sufficient to inform a rider of this danger. Plaintiff admitted as much in his deposition:
Q. Did you know that if you wrapped the rope around your fingers and then you put weight on the rope, that that would tighten and cinch around your fingers?
A. The thought did not cross my mind.
Q. Okay. You didn’t think about that correct?
A. Correct.
Q. But if you had thought about it, you would have been able to figure that out, correct?
[*1212] A. If someone asked me?
Q. Yes.
A. Yes.
(Dkt. No. 50 at Ex. A 196:14-197:1.) Given Plaintiff’s admission that he would have realized the danger if he had thought about it, Plaintiff cannot credibly argue [**9] that Defendant had no reason to believe that he would realize the danger.
The only evidence Plaintiff offers on this point is the testimony of Dr. Richard Gill, a Human Factors Engineering consultant. Dr. Gill was disclosed as a rebuttal expert, and testified that the scope of his work was to provide rebuttal testimony to the three defense experts. (Dkt. No. 60 at Ex. 1, Ex 2 16:8-9.) Dr. Gill’s expert report provides a series of conclusions about the behavior of zip line riders that does not rebut any of the testimony of Defendant’s experts. Rather, this type of testimony should have been disclosed in the initial expert discovery responses and is therefore untimely. Accordingly, Dr. Gill’s testimony regarding the behavioral tendencies of zip line or challenge course participants is STRICKEN. Plaintiff has failed to demonstrate a genuine issue of material fact with respect to Defendant’s liability under Section 388.
C. Liability for violation of state regulations
Plaintiff’s next argument is that Defendant was negligent pursuant to RCW 5.40.050 for violation of a state statute. [HN5] WAC 296-403A-190 states that amusement rides must be inspected by certified inspectors. RCW 67.42.010 and [**10] WAC 296-403A-100(2) provide the definition of amusement rides, but do not mention zip lines. Plaintiff argues that these definitions do include zip lines, and relies on a series of communications with the State of Washington Department of Labor and Industries (“L&I”) in 2009 and 2010 in support of this contention. (Dkt. No. 50 at Ex. 11.)
The Court interprets these communications very differently from Plaintiff. It is clear from these emails that the decision to include zip lines in the definition of “amusement ride” under WAC 296-403A-100(2) was not made until late 2009 or early 2010, more than two years after Plaintiff injured his hand on Defendant’s zip line. (Dkt. No. 50 at Ex. 11.) Plaintiff does not address this chronology in his briefing. It is misleading in the extreme for Plaintiff to characterize Defendant’s zip line as “unlicensed” when the licensing body had not yet decided that a license was required. Plaintiff has failed to show a genuine issue of material fact with respect to Defendant’s failure to comply with licensing requirements.
D. Common Carrier Liability
Plaintiff’s third argument is that Defendant is subject to common carrier liability. [HN6] Under Washington law, the duty [**11] of a common carrier to safeguard passengers from injury requires the carrier to exercise the highest degree of care consistent with the practical operation of its business or its type of transportation. Benjamin v. Seattle, 74 Wn.2d 832, 447 P.2d 172 (1968). Plaintiff acknowledges that there is no Washington caselaw addressing the issue of whether a zip line qualifies as a “common carrier,” but argues that this Court should expand the definition to include zip lines and similar amusement rides. In support of this argument, Plaintiff mentions a series of California decisions holding that a higher standard of care applies to amusement rides. Gomez v. Superior Court, 35 Cal. 4th 1125, 29 Cal. Rptr. 3d 352, 113 P.3d 41, 47 (Cal. 2005) (holding that the same high standard of care applied to carriers of passengers should also apply to operators of roller [*1213] coasters); Neubauer v. Disneyland, 875 F. Supp. 672, 673 (C.D. Cal. 1995) (holding that under California’s broad common carrier statute, a Disneyland amusement ride may be a common carrier).
This argument stumbles into the yawning gap between the Washington and California common-carrier statutes. [HN7] California’s common carrier statute is broad: Everyone who offers to the public to carry persons, [**12] property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry. Cal Civ Code § 2168. Washington’s common carrier statute is narrow and exhaustive:
“Common carrier” includes all railroads, railroad companies, street railroads, street railroad companies, commercial ferries, motor freight carriers, auto transportation companies, charter party carriers and excursion service carriers, private nonprofit transportation providers, solid waste collection companies, household goods carriers, hazardous liquid pipeline companies, and every corporation, company, association, joint stock association, partnership, and person, their lessees, trustees, or receivers appointed by any court whatsoever, and every city or town, owning, operating, managing, or controlling any such agency for public use in the conveyance of persons or property for hire within this state.
RCW 81.04.010(11). Plaintiff offers no argument or evidence for the proposition that this definition includes a zip line. Again, Plaintiff has failed to show a genuine issue of material fact with respect to Defendant’s liability as an alleged common carrier.
IV. CONCLUSION
Defendant’s motion [**13] for Summary Judgment (Dkt. No. 49) is GRANTED in part and DENIED in part. Plaintiff’s claims for breach of the duty of ordinary care survive summary judgment. Plaintiff’s claims for breach of the duty to disclose, claims relating to the violation of the WAC, and claims relating to common carrier liability are DISMISSED.
DATED this 24th day of June 2011.
/s/ John C. Coughenour
John C. Coughenour
UNITED STATES DISTRICT JUDGE
Ecotourism and Sustainable Tourism Conference 2012
Posted: April 12, 2012 Filed under: Youth Camps, Zip Line | Tags: #Ecotourism, #ESTC12, #Sustainable, #Tourism, Conference, Ecotourism and Sustainable Tourism Conference 2012, Recreation, Travel Leave a commentEcotourism and Sustainable Tourism Conference 2012
The Ecotourism and Sustainable Tourism Conference 2012 has officially released its Call of Posters. Please help us get the word out. Here is the link: http://www.ecotourismconference.org/estc12-poster-session. The registration for the conference is also open at this time. Please feel free to contact me with any questions.
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p: +1 202 506 5033 ext x12
e: mhunt
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The ESTC brings together innovative minds from across the industry to discuss practical ideas and solutions that inspire positive changes. Sept 17-19, 2012, Monterey, California, USA
Colorado Alliance Experiential Education Environmental Ed Conference-Teaching Outside the Box Conference
Posted: April 10, 2012 Filed under: Youth Camps, Zip Line | Tags: CAEE, Colorado Alliance of Experiential Education, education, Environment, Environmental Education, Massachusetts, Organizations, Outdoor Programs, Professional development, Teaching Outside the Box Leave a commentPlease find information below about the Colorado Alliance for Environmental Education‘s annual Environmental Education Conference-Teaching Outside the Box. The deadline to register with the early bird rates is April 1. Please find more details below and visit our website. Have a great day! http://www.caee.org/civicrm/event/info?reset=1&id=2
Teaching OUTSIDE the Box 2012
April 27- April 29, 2012 ~ Loveland, CO
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Click here for more information on the sessions being offered: http://www.caee.org/schedule-and-sessions
The conference is full of professional development opportunities including sessions:
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Become a member and get a discount of up to $50 on registration.
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When
April 27th, 2012 9:00 AM through April 29th, 2012 5:00 PM
Location
La Quinta Inn and Suites 1450 Cascade Ave Loveland, CO 80537
Contact Phone: info
Delaware holds that mothers signature on contract forces change of venue for minors claims.
Posted: April 2, 2012 Filed under: California, Delaware, Jurisdiction and Venue (Forum Selection), Summer Camp | Tags: American Arbitration Association, Arbitration, California, Minor, Summer Camp, Youth Camp Leave a commentDoe v. Cedars Academy, LLC, 2010 Del. Super. LEXIS 559
Court recognizes that you can’t argue rights under the contract and void other parts of the contract in the same lawsuit.
This case alleges that the minor was assaulted at a school for students who have a need for academic and social skills development. To be enrolled in the school the mother had to sign a substantial contract. The contract included a release of liability (pre-injury release) and a venue and jurisdiction clause.
The minor was allegedly threatened and sexually assaulted by another student. The mother and son sued for.
“….negligence, gross negligence, and recklessness; one count raises a breach of contract claim, and one count raises a claim that Defendants violated John Doe’s substantive due process right to bodily integrity.”
The defendants, the school and the parent company of the school moved to dismiss the complaint for lack of personal jurisdiction. This means the contract says the jurisdiction is located in another state, therefor this court does not have the legal right to hear the claim. i.e. the jurisdiction clause in the contract between the parties.
Summary of the case
The school was located in Delaware; however, the agreement required arbitration in California. The venue and jurisdiction clause was extensive in the contract.
21. Governing Law/Venue: This Agreement, and all matters relating hereto, including any matter or dispute arising between the parties out of this Agreement, tort or otherwise, shall be interpreted, governed and enforced according to the laws of the State of California; and the parties consent and submit to the exclusive jurisdiction and venue of the California Courts in Los Angeles County, California, and any qualified (American Arbitration Association-approved) arbitration service in the State of California, County of Los Angeles, to enforce this Agreement. The parties acknowledge that this Agreement constitutes a business transaction within the State of California. 10
The court looked at four issues in reviewing the contract and the claims of the plaintiffs:
(A) whether the Agreement is binding as to Jane Doe; [the mother]
(B) whether the Agreement is binding as to John Doe; [the son]
(C) whether the pre-injury release provision renders the entire Agreement unenforceable; and, if not
(D) whether the choice of law, choice of forum, and/or arbitration provisions of the Agreement are controlling.
The issue of whether the contract is binding on the mother. The court found it was because the mother also sued for damages under the contract. Here the court found if you are suing for damages under the contract, you cannot claim you are not part of the contract.
The court also held, in what was one of the clearest statements on this issue I’ve read, that the mother could not avail herself of the services of the defendant and put her son in the school and then claim the contract did not apply to her. If the contract allowed her to put her son in the school, then the contract applied to her.
But for the right to contact as a mother, there would be no services for children.
This same analysis was applied to whether or not the minor was bound by the agreement. If the minor could attend the school, based on the contract, then the minor had to be bound by the contract.
To conclude that John Doe is not bound by the Agreements otherwise enforceable terms, as Plaintiffs contend, simply because he is a minor would be tantamount to concluding that a parent can never contract with a private school (or any other service provider) on behalf and for the benefit of her child. As a practical matter, no service provider would ever agree to a contract with a parent if a child could ignore the provisions of the contract that pertain to him without recourse.
The court did not determine or decided if a parent can bind a minor to a pre-injury release. The court held that the contract allowed the court to exclude for the sake of argument, any part of the contract that it felt was unenforceable and therefore, the court could decide the issue without deciding the release issue.
The court then found the jurisdiction and venue clause were valid, and the case must be sent to California. Whether that was going to be a California court or arbitration, as required by the contract, in California was up to the California court.
At this point, the plaintiff argued the minute aspects of the contract did not force the case to be sent to California. This forced the court to scrutinize the agreement, down to the placement of a semi-colon. The court determined the jurisdiction and venue portion of the agreement applied.
Unless the forum selection clause “is shown by the resisting party to be unreasonable under the circumstances,” such clauses are prima facie valid. A choice of forum provision will be deemed “unreasonable” only when its enforcement would seriously impair the plaintiff’s ability to pursue its cause of action.” Mere inconvenience or additional expense is not sufficient evidence of unreasonableness.
So Now What?
Over and over I have stressed the importance of a well-written jurisdiction and venue (choice of forums) clause in your release and in all documents. Here again, this clause will make litigation more difficult for the plaintiff.
You want the lawsuit in your community. Most of the witnesses are usually located there, the business is there, and you are better prepared to defend a claim there.
Another issue that was not brought up the court, but is present in the case is the decision on arbitration. Arbitration may be a great item for you to use if you are dealing with minors for several reasons.
Arbitration is cheaper and quicker than a trial. The rules governing arbitration have a shorter time frame and do not allow as much time for discovery.
Arbitrators, by statute, are usually limited on the type of amount of damages that they can award. As such, punitive or other excessive damages may not be awarded by an arbitrator.
However, arbitration is not necessarily the way to go in every case. Arbitration does not allow, normally for motions for summary judgment. If you have a well-written release in a state that allows the use of releases, you will have a faster and better result going to court and filing a motion for summary judgment.
Whether or not to put arbitration in a release or other contract is one to be carefully reviewed based on your state, your state law and your situation with your attorney.
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
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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Doe v. Cedars Academy, LLC, 2010 Del. Super. LEXIS 559
Posted: April 2, 2012 Filed under: California, Delaware, Jurisdiction and Venue (Forum Selection), Legal Case, Summer Camp | Tags: Aspen Education Group, California, Delaware, Minor, Parol evidence rule, Summer Camp, Youth Camp Leave a commentTo Read an Analysis of this decision see
Delaware holds that mothers signature on contract forces change of venue for minors claims.
Doe v. Cedars Academy, LLC, 2010 Del. Super. LEXIS 559
John Doe and Jane Doe, individually, and as Guardian and Next Friend of John Doe, a minor, Plaintiffs, v. Cedars Academy, LLC, and Aspen Education Group, Inc., Defendants.
C.A. No. 09C-09-136 JRS
Superior Court of Delaware, New Castle
2010 Del. Super. LEXIS 559
July 20, 2010, Submitted
October 27, 2010, Decided
Notice:
This opinion has not been released for publication. Until released, it is subject to revision or withdrawal.
SUBSEQUENT HISTORY: Reargument denied by Doe v. Cedars Acad., LLC, 2011 Del. Super. LEXIS 18 (Del. Super. Ct., Jan. 19, 2011)
PRIOR HISTORY: [*1]
Upon Consideration of Defendants’ Motions to Dismiss.
DISPOSITION: GRANTED.
CASE SUMMARY:
PROCEDURAL POSTURE: The court considered a motion to dismiss (Del. Super. Ct. R. Civ. P. 12(b)(6)) filed by the defendants, a limited liability company (LLC) and a corporation, seeking an order dismissing a complaint filed by plaintiffs, a mother and her son, in which plaintiffs alleged the mother entered into a contract with the LLC to enroll her son in a boarding school and that, while a student there, he was sexually assaulted and threatened by a fellow student.
OVERVIEW: A fair reading of the complaint indicated plaintiffs alleged defendants were liable for damages for breach of the contract and for breach of common law duties of care. The court found a reasonable person would conclude that the mother objectively manifested her assent to be bound by the terms of the contract by paying tuition to the school and entrusting her son to the school as contemplated by the contract. The son, a minor, was also bound by the agreement, entered into on his behalf. Even if a pre-injury release was invalid, it would not render the entire agreement unenforceable. After reviewing the provisions within the four corners of the contract, the court concluded the parties intended to consent to the exclusive jurisdiction of California courts or arbitration panels to litigate their claims, based on a forum selection clause. Other than arguing that the contract was invalid because it was unconscionable, plaintiffs did not provide any support for their claim that the court should ignore the forum selection clause. Given the law in Delaware that choice of forum provisions were enforceable absent a showing of unreasonableness, the court declined to exercise jurisdiction.
OUTCOME: The motion to dismiss was granted.
COUNSEL: Joseph J. Rhoades, Esquire, Stephen T. Morrow, Esquire, LAW OFFICE OF JOSEPH J. RHOADES, Wilmington, Delaware. Attorneys for Plaintiffs.
Norman H. Brooks, Jr., MARKS, O’NEILL, O’BRIEN & COURTNEY, P.C., Wilmington, Delaware. Attorney for Defendants.
JUDGES: Joseph R. Slights, III, Judge.
OPINION BY: Joseph R. Slights, III
OPINION
MEMORANDUM OPINION
SLIGHTS, J.
I.
Before the Court is a Motion to Dismiss filed by the Defendants, Cedars Academy, LLC (“Cedars”) and Aspen Education Group, Inc. (“Aspen”) (collectively “the Defendants”). The motion seeks an order dismissing the Complaint filed by John Doe and his mother Jane Doe (collectively “Plaintiffs”), 1 in which Plaintiffs allege that Jane Doe entered into a contract with Cedars to enroll her son in the Cedars Academy Boarding School (“Cedars Academy”) and that, while a student there, John Doe was sexually assaulted and threatened by a fellow student. 2
1 Plaintiffs have used pseudonyms, presumably because of the sensitive nature of the allegations.
2 Compl. ¶ 7.
The Complaint contains five counts: three counts raise tort-based claims including negligence, gross negligence, and recklessness; 3 one count raises a [*2] breach of contract claim, 4 and one count raises a claim that Defendants violated John Doe’s substantive due process right to bodily integrity. 5 Defendants move to dismiss all counts for lack of subject matter jurisdiction and improper venue, and also based on a pre-injury release signed by Jane Doe. Defendant Aspen also moves to dismiss for lack of personal jurisdiction. Upon review of the motion, and the responses thereto, the Court determines that the forum selection clause of the operative contract (selecting California as the exclusive forum) is enforceable as to all of the parties and, as such, the motion to dismiss this action must be GRANTED.
3 Compl. ¶¶ 11-20, 26-29, 30-31.
4 Compl. ¶¶ 21-25.
5 Compl. ¶¶ 32-39.
II.
On September 15, 2007, Jane Doe entered into a contract with Cedars (hereinafter “the Agreement”) to enroll her minor son, John Doe, as a full time student at the Cedars Academy in Bridgeville, Delaware. 6 Cedars Academy is a private preparatory boarding school for students who demonstrate a need for academic and social skill development. 7 The Agreement between Ms. Doe and Cedars contained the following provisions relevant to the controversy sub judice:
5. Assumption of [*3] the Risks; Releases and Indemnities: Sponsor acknowledges serious hazards and dangers, known and unknown, inherent in the Program, including but not limited to vocational activities, emotional and physical injuries, illness or death that may arise from strenuous hiking, climbing, camping in a natural environment, exposure to the elements, plants and animals, running away from the Program, “acts of God” (nature), physical education activities, water sports, stress, involvement with other students, self-inflicted injuries, and transportation to and from activities. Sponsor understands that in participating in the Program Student will be in locations and using facilities where many hazards exist and is aware of and appreciates the risks, [sic] which may result. Sponsor understands that accidents occur during such activities due to the negligence of others, which may result in death or serious injury. Sponsor and Student are voluntarily participating in the Program with knowledge of the dangers involved and agree to accept any and all risks. In consideration for being permitted to participate in the Program, Sponsor agrees to not sue, to assume all risks and to release, hold harmless, [*4] and indemnify Cedars and any and all of its predecessors, successors, officers, directors, trustees, insurers, employees … including, but not limited to, Aspen Education Group, Inc. (collectively all of these above persons and entities shall be referred to as the “Released Parties” hereafter) who, through negligence, carelessness or any other cause might otherwise be liable to Sponsor or Student under theories of contract or tort law. Sponsor intends by this Waiver and Release to release, in advance, and to waive his or her rights and discharge each and every one of the Released Parties, from any and all claims for damages for death, personal injury or property damage which Sponsor may have, or which may hereafter accrue as a result of Student’s participation in any aspect of the Program, even though that liability may arise from negligence or carelessness on the part of the persons or entities being released, from dangerous or defective property or equipment owned, maintained, or controlled by them, or because of their possible liability without fault. Additionally, Sponsor covenants not to sue any of the Released Parties based upon their breach of any duty owed to Sponsor or Student [*5] as a result of their participation in any aspect of the Program. Sponsor understands and agrees that this Waiver and Release is binding on his or her heirs, assigns and legal representatives. 8
15. Binding Arbitration: Any controversy or claim arising out of or relating to this contract, except at Cedars’ option the collection of monies owed by Sponsor to Cedars, shall be settled by binding arbitration conducted in the State of California in accordance with the rules of the American Arbitration Association; 9 and
21. Governing Law/Venue: This Agreement, and all matters relating hereto, including any matter or dispute arising between the parties out of this Agreement, tort or otherwise, shall be interpreted, governed and enforced according to the laws of the State of California; and the parties consent and submit to the exclusive jurisdiction and venue of the California Courts in Los Angeles County, California, and any qualified (American Arbitration Association-approved) arbitration service in the State of California, County of Los Angeles, to enforce this Agreement. The parties acknowledge that this Agreement constitutes a business transaction within the State of California. 10
6 Compl. [*6] ¶ 2.
7 Pls.’ Resp. Defs.’ Mot. to Dismiss Ex. A.
8 Agreement ¶ 5.
9 Agreement ¶ 15.
10 Agreement ¶ 21.
On September 21, 2007, John Doe began attending Cedars Academy and residing in one of its dormitories. 11 While there, John Doe was propositioned by another student to perform sexual acts. According to the Complaint, on one or more occasion, the other student (not named as a defendant or otherwise in the Complaint) entered John Doe’s dormitory room, threatened him and sexually assaulted him. 12 Plaintiffs allege that these sexual assaults resulted in physical and emotional injuries to John Doe and economic damages to both Plaintiffs. 13 A fair reading of the Complaint indicates that Plaintiffs allege Defendants are liable for their damages both as a result of having breached the Agreement and having breached common law duties of care. 14
11 Compl. ¶ 7.
12 Id.
13 Compl. ¶¶ 7-10.
14 See Id. (Counts I through IV).
III.
In support of their motion, Defendants argue that the Agreement is enforceable against Jane Doe as the signatory and John Doe as a third party beneficiary. 15 Because both parties are bound by the Agreement, Defendants argue that Delaware’s preference for enforcing choice of forum provisions [*7] should prevail when, as here, the selected jurisdiction (California) has a “material connection” with the transaction. 16 Finally, Defendants assert that the arbitration provision of the Agreement should be honored because Jane Doe freely entered into the Agreement for the benefit of her minor son and John Doe received the benefit of the Agreement in the form of student housing, meals, and education. 17 According to the Defendants, he “who accepts the benefits of the contract, is also bound by any burdens or restrictions created by it.” 18
15 Defs.’ Letter Mem. pgs. 1-4.
16 Id. at 5.
17 Id. at 4.
18 Id.
In response, Plaintiffs first argue that the Agreement is not enforceable as to Jane Doe or John Doe because its “assumption of the risks; releases and indemnities” provision is invalid as a matter of law. According to Plaintiffs, Delaware courts look with disfavor upon clauses which exculpate a party from the consequences of that party’s own negligence. 19 Moreover, Plaintiffs argue that parents do not have the authority to execute a pre-injury release on behalf of their children. Such pre-injury releases “deprive children of the legal relief necessary to redress negligently inflicted injuries,” [*8] according to Plaintiffs, and are thus void as against public policy. 20 Because the Agreement contains a pre-injury release provision that purports to release a minor’s claim, and an invalid indemnification provision, Plaintiffs contend that the entire Agreement is unenforceable. 21
19 Pls.’ Resp. Defs.’ Letter Mem. pg. 2.
20 Id. at 7.
21 Id. at 6-7.
Plaintiffs next argue that even if the Agreement is enforceable against Jane Doe, it is not enforceable against John Doe because he is not a party to the Agreement. In this regard, Plaintiffs contend that the Agreement fails to identify John Doe as a party to the Agreement, that John Doe is not a signatory to the Agreement, and that there is no language in the Agreement to suggest that Jane Doe was contracting on John Doe’s behalf. 22 Thus, according to the Plaintiffs, the Agreement is between Jane Doe and Cedars only and does not bind John Doe. 23 Plaintiffs further contend that even if John Doe is considered a third party beneficiary, he is still not bound to the Agreement because he did not sign it. 24
22 Id. at 4.
23 Id.
24 Id. at 6.
Finally, Plaintiffs assert that the choice of forum and arbitration provisions of the Agreement are unenforceable [*9] against both Plaintiffs because the Agreement is over-broad and unconscionable. 25 The Plaintiffs contend that the Agreement is too broad because there is no evidence that the parties contemplated “Cedars’ common law duty to prevent sexual assaults on John Doe or the manner in which breaches of that duty would be redressed when they entered into the Agreement.” 26 In addition, they argue that the Agreement is unconscionable because “John Doe was in need of specialized care and Cedars purported to be uniquely qualified to render such care,” leaving Jane Doe with little choice but to “sign on the dotted line.” 27
25 Id. at 8-10.
26 Id. at 9.
27 Id. at 10.
IV.
[HN1] In evaluating a Motion to Dismiss under Superior Court Civil Rule 12(b)(6), the Court must assume all well plead facts in the complaint to be true. 28 A complaint will not be dismissed unless the plaintiff would not be entitled to recover under any reasonable set of circumstances susceptible of proof. 29 Stated differently, a complaint may not be dismissed unless it is clearly not viable, which may be determined as a matter of law or fact. 30
28 Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998).
29 Nix v. Sawyer, 466 A.2d 407, 410 (Del. Super. 1983).
30 Diamond State Tel. Co. v. Univ. of Del., 269 A.2d 52, 58 (Del. 1970).
V.
Plaintiffs’ [*10] Motion and the Defendants’ response implicate the following issues, which the Court will address seriatim: (A) whether the Agreement is binding as to Jane Doe; (B) whether the Agreement is binding as to John Doe; (C) whether the pre-injury release provision renders the entire Agreement unenforceable; and, if not (D) whether the choice of law, choice of forum, and/or arbitration provisions of the Agreement are controlling.
A. Jane Doe Is Bound By The Agreement She Entered Into With Cedars On Behalf Of Her Son
[HN2] Both Delaware and California measure the formation of a contract by an objective test. 31 Specifically, a contract is formed if “a reasonable person would conclude, based on the objective manifestations of assent and the surrounding circumstances, that the parties intended to be bound to their agreement on all essential terms.” 32 At the outset, the Court notes that [HN3] it is counter-intuitive to seek enforcement of an agreement that one alleges to be invalid. Stated differently, a party cannot “simultaneously seek to avoid the contract … and at the same time sue for damages for breach of [that] contract ….” 33 And yet, this is precisely what the Plaintiffs are attempting to do in [*11] this case. 34
31 The Court has considered both Delaware and California law in construing the Agreement given the Agreement’s choice of California law. See Leeds v. First Allied Conn. Corp., 521 A.2d 1095, 1097 (Del. Ch. 1986); Founding Members of Newport Beach Country Club v. Newport Beach Country Club, Inc., 109 Cal. App. 4th 944, 955, 135 Cal. Rptr. 2d 505 (Cal. Ct. App. 2003).
32 Leeds, 521 A.2d at 1101. See also Founding Members, 109 Cal. App. 4th at 955 (“California recognizes the objective theory of contracts, under which [it] is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of the parties, that controls interpretation.”).
33 In re Verilink Corp., 405 B.R. 356, 378 (N.D. Ala. 2009).
34 Compl. ¶¶ 21-25.
Moreover, a reasonable person would conclude that Jane Doe objectively manifested her assent to be bound by the terms of the Agreement by paying tuition to Cedars Academy as required by the Agreement and entrusting her son to the school as contemplated by the Agreement. 35 As a person with the capacity to contract, and in the absence of allegations of fraud, duress, or undue influence, Jane Doe is bound to the Agreement she signed with Cedars so that [*12] her son could attend Cedars Academy. 36
35 Compl. ¶¶ 5 and 22.
36 2 Williston on Contracts § 6:44 (4th ed.) (“Because the offeree’s action naturally indicates assent, at least in the absence of an invalidating cause such as fraud, duress, mutual mistake, or unconscionability, where an offeree signs a document it is generally held to be bound by the document’s terms, even if the offeree signs in ignorance of those terms.”). See, e.g., Indus. Am., Inc v. Fulton Indus., Inc., 285 A.2d 412, 415 (Del. 1971) (“Where an offeror requests an act in return for his promise and the act is performed, the act performed becomes the requisite overt manifestation of assent if the act is done intentionally; i.e., if there is a ‘conscious will’ to do it.”); Main Storage & Trucking Inc. v. Benco Contracting and Eng’g Inc., 89 Cal. App. 4th 1042, 1049, 107 Cal. Rptr. 2d 645 (Cal. Ct. App. 2001)( [HN4] “Every contract requires mutual assent or consent, and ordinarily one who signs an instrument which on its face is a contract is deemed to assent to all its terms.”).
B. John Doe Is Bound By The Agreement Entered Into On His Behalf By His Mother
The parties focused much of their energy on whether John Doe should be considered a third party [*13] beneficiary of the Agreement. This focus, however, misses the mark in that it ignores the realities of the relationship between parent and child. As a matter of law, and as a practical matter, John Doe, a minor, could not obtain a private boarding school education from a facility like Cedars Academy without his mother contracting for such services on his behalf. 37 As the guardian of John Doe, Jane Doe was authorized to provide for her minor son’s education in the manner she saw fit. 38
37 6 Del. C. § 2705 ( [HN5] A person does not have the capacity to contract until he or she reaches the age of majority); Cal. Fam. Code Ann. § 6700 (West 1994)(“A minor may make a contract … subject to the power of disaffirmance.”); Cal. Fam. Code Ann. § 6500 (“A minor is an individual who is under 18 years of age.”).
38 Ide v. Brown, 178 N.Y. 26, 70 N.E. 101, 102 ( N.Y.1904) (“As guardian, we assume that [father] had the power to provide for her support and maintenance during [daughter’s] minority.”); Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534-35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925) (Parents have the liberty “to direct the upbringing and education of children under their control.”); Hohe v. San Diego Unified Sch. Dist., 224 Cal. App. 3d 1559, 1565, 274 Cal. Rptr. 647 (Cal. Ct. App. 1990)(same).
To [*14] conclude that John Doe is not bound by the Agreement’s otherwise enforceable terms, as Plaintiffs contend, simply because he is a minor would be tantamount to concluding that a parent can never contract with a private school (or any other service provider) on behalf and for the benefit of her child. As a practical matter, no service provider would ever agree to a contract with a parent if a child could ignore the provisions of the contract that pertain to him without recourse. 39 Such a result is inconsistent with the law’s concept of the family which “rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.” 40 In this case, as a parent, Jane Doe was authorized to enter into the Agreement with Cedars on behalf of her minor son and to bind him to its enforceable terms.
39 For instance, in this case, Cedars reserved the right to terminate John Doe’s enrollment in Cedars Academy if he engaged in “illegal, uncontrollable, or dangerous behavior” or “for any other reason … deem[ed] necessary for the protection of [John Doe], any other student(s) or the integrity of Cedar’s program.” [*15] Agreement, ¶ 9. This provision implicitly imposes upon John Doe certain obligations to behave in an appropriate manner. If this obligation was deemed by the Court to be non-binding upon John Doe simply because he is a minor, then Cedars, in turn, would lose its authority to discharge him or any other student whose behavior justified termination from the program. No private school would ever enroll a student under such circumstances.
40 Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979).
C. Even If The Pre-Injury Release Provision Is Invalid, It is Severable and Does Not Affect The Overall Enforceability Of The Agreement
Plaintiffs argue that parents do not possess the authority to bind their children to pre-injury releases. 41 According to Plaintiffs, the pre-injury release is invalid, 42 and, therefore, John Doe should not be bound by the balance of the Agreement’s terms. 43
41 Agreement ¶ 5.
42 Pls.’ Resp. Defs.’ Letter Mem. pg. 7.
43 Pls.’ Resp. Defs.’ Mot. to Dismiss ¶ 8.
It appears that no Delaware court has specifically addressed whether parents can bind their children to a pre-injury release. Further, it appears that there is a split among those jurisdictions that have addressed the issue. 44 This [*16] Court need not weigh in on behalf of Delaware, however, because even if the pre-injury release is invalid, the presence of the provision would not render the entire Agreement unenforceable. 45 [HN6] When “determining whether a contract is divisible … the essential question … is ‘did the parties give a single assent to the whole transaction, or did they assent separately to several things?'” 46 If there is evidence that clearly shows that the parties intended to enter into an integrated contract, then the contract should be read in its entirety. 47 In this regard, Delaware courts recognize that “[t]he parties’ intent to enter into a divisible contract may be expressed in the contract directly, through a severability clause.” 48 The Agreement between the parties in this case contains a clear and unambiguous severability clause. 49 Accordingly, the invalidity of the pre-injury release would not render the remainder of the Agreement unenforceable.
44 Compare Cooper v. Aspen Skiing Co., 48 P.3d 1229 (Colo. 2002)(holding that Colorado’s public policy affords minors significant protections which preclude parents or guardians from releasing a minor’s own prospective claim for negligence); Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062 (Utah 2001)(holding [*17] that a parent cannot release a child’s causes of action against a third party before or after an injury); with Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738 (Mass. 2002)(holding that releases of liability for ordinary negligence involving private parties are valid as a general proposition in the Commonwealth and, thus, it was not contrary to the purposes of the Tort Claims Act to allow city to use releases as a precondition for student’s participation in voluntary, nonessential activities, such as cheerleading at public school activities); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201 (Ohio 1998) (Holding that mother had authority to bind her minor child to exculpatory agreement in favor of volunteers and sponsors of nonprofit soccer organization, where cause of action sounded in negligence; agreement could not be disaffirmed by child on whose behalf it was executed).
45 See McInerney v. Slights, 1988 Del. Ch. LEXIS 47, 1988 WL 34528, *7 (Del. Ch. Apr. 13, 1988)(“… where a contract as negotiated cannot be enforced by reason of a legally-recognized policy, a court should simply [imply] a severability clause in the contract if to enforce such an implied term may be done sensibly.”); Abramson v. Juniper Networks, Inc. 115 Cal. App. 4th 638, 658-59, 9 Cal. Rptr. 3d 422 (Cal. Ct. App. 2004)(“Where [*18] a contract has several distinct objects, of which one at least is lawful, and one at least is unlawful, in whole or in part, the contract is void as to the latter and valid as to the rest.”).
46 Orenstein v. Kahn, 13 Del. Ch. 376, 119 A. 444, 446 (Del. Ch. 1922) (“Although the consideration is apportioned on the face of a contract, if there be a special agreement to take the whole or nothing, or if the evidence clearly shows that such was the purpose of the parties, the contract should be entire.”).
47 Id.
48 15 Williston on Contracts § 45:6 (4th ed.). See also Evans, 872 A.2d at 552 (“Generally, a severability clause is enforceable.”).
49 Agreement ¶ 22 (“In the event that any provision of this agreement, or any operation contemplated hereunder, is found by a court of competent jurisdiction to be inconsistent with or contrary to any law, ordinance, or regulation, the latter shall be deemed to control and the Agreement shall be regarded as modified accordingly and, in any event, the remainder of this agreement shall continue in full force and effect.”).
D. The Choice of Forum Provision is Controlling
Having determined that the pre-injury release provision may be excised, the Court now turns to the balance of [*19] the Agreement to determine if any remaining provisions support the Defendants’ motion. In this regard, the Court’s attention is drawn immediately to provisions of the Agreement which suggest that the parties intended to resolve their disputes in California, not Delaware. Not surprisingly, Defendants interpret these provisions as requiring the Court to dismiss this action so that Plaintiffs’ claims may be brought in California as intended. Plaintiffs, not surprisingly, argue that the Agreement’s arbitration and choice of forum provisions do not apply here. The parties’ differing views of these provisions require the Court to interpret the Agreement and to determine in which forum this controversy belongs.
[HN7] Both Delaware and California courts honor the parol evidence rule. 50 This rule provides that “[w]hen two parties have made a contract and have expressed it in a writing to which they have both assented as to the complete and accurate integration of that contract, evidence . . . of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing.” 51 To ensure compliance with the parol evidence rule, the court first must determine [*20] whether the terms of the contract it has been asked to construe clearly state the parties’ agreement. 52 In this regard, the court must remember that a contract is not rendered ambiguous simply because the parties disagree as to the meaning of its terms. 53 “Rather, a contract is ambiguous only when the provisions in controversy are reasonably or fairly susceptible of different interpretations or may have two or more different meanings.” 54 Upon concluding that the contract clearly and unambiguously reflects the parties’ intent, the court’s interpretation of the contract must be confined to the document’s “four corners.” 55 The court will interpret the contract’s terms according to the meaning that would be ascribed to them by a reasonable third party. 56
50 See Rhone-Poulenc Basic Chem. Co. v. American Motorists Ins. Co., 616 A.2d 1192, 1196 (Del. 1992); Wolf v. Walt Disney Pictures & Television, 162 Cal. App. 4th 1107, 1126, 76 Cal. Rptr. 3d 585 (Cal. Ct. App. 2008).
51 26 Corbin on Contracts § 573 (1960).
52 Comrie v. Enterasys Networks, Inc., 837 A.2d 1, 13 (Del. Ch. 2003)(citing In Re. Explorer Pipeline Co., 781 A.2d 705, 713 (Del. Ch. 2001)); Wolf, 162 Cal. App. 4th at 1126 (“[w]hen a contract is reduced [*21] to writing, the intention of the parties is to be ascertained from the writing alone, if possible….”)(citation omitted).
53 See Rhone-Poulenc Basic Chem. Co. v. American Motorists Ins. Co., 616 A.2d 1192, 1196 (Del. 1992)(“A contract is not rendered ambiguous simply because the parties do not agree upon its proper construction.”); Curry v. Moody, 40 Cal. App. 4th 1547, 1552, 48 Cal. Rptr. 2d 627 (Cal. Ct. App. 1995)(“When the parties dispute the meaning of a contract term, the trial court’s first step is to determine whether the term is ambiguous … “).
54 Id. (citation omitted).
55 See O’Brien v. Progressive Northern, Ins. Co., 785 A.2d 281, 288-89 (Del. 2001); Wolf, 162 Cal. App.4th at 1126.
56 Comrie, 837 A.2d at 13 (citations omitted); Wolf, 162 Cal. App. 4th at 1126.
As directed by the parol evidence rule, the Court looks first to the Agreement itself (the text within the “four corners”) to determine if it unambiguously reflects the parties’ intent with respect to choice of forum. To discern the parties’ intent, the Court has utilized certain settled tenets of contract interpretation. 57 The first, and [HN8] perhaps most fundamental, tenet of contract interpretation requires the court to render a “reasonable, [*22] fair and practical” interpretation of the contract’s clear and unambiguous terms. 58 In addition, the court must be mindful that “[a] contract should be read as a whole and every part should be interpreted with reference to the whole, and if possible should be so interpreted as to give effect to its general purpose.” 59 In this regard, the court must interpret the contract “so as to conform to an evident consistent purpose” and “in a manner that makes the contract internally consistent.” 60
57 “An abstract distinction exists between ‘construction’ and ‘interpretation,’ in that ‘construction’ is the drawing of conclusions from elements known from, given in, and indicated by the language used, while ‘interpretation’ is the art of finding the true sense of the language itself ….” 17A Am. Jur. 2d Contracts §328.
58 Id. at §338.
59 Id. at §376.
60 Id.
Here, the Agreement’s choice of law and choice of forum provisions are combined in one paragraph, and together they state, in pertinent part, as follows: “This Agreement, and all matters pertaining hereto, including any matter or dispute arising between the parties out of this Agreement, tort or otherwise, shall be interpreted, governed and enforced [*23] according to the laws of the State of California; and the Parties consent and submit to the exclusive jurisdiction and venue of the California Courts … to enforce this Agreement.” 61 After reading this provision, the Court can mine only two sources of possible ambiguity in relation to the facts sub judice: (1) whether the choice of forum provision applies only to actions “to enforce the Agreement;” and, if not (2) whether Plaintiffs’ claims, including their tort claims, “aris[e] out of the Agreement” such that they implicate the choice of law and choice of forum provisions. As discussed below, neither of these phrases render the Agreement ambiguous.
61 Agreement ¶ 21.
As the Court considers whether Plaintiffs’ claims implicate the Agreement’s choice of forum provision, the Court takes notice of the placement of the semicolon to separate the choice of law and choice of forum provisions. At first glance, the semicolon might suggest an intent to separate the two provisions such that one will not modify the other. And, if the provisions are separated, one might read the choice of forum provision as applying only to actions “to enforce the Agreement.” But this reading would run counter to [*24] the theme of the entire Agreement, which is designed to ground all aspects of the parties’ relationship in California. For instance, the Agreement provides that payments, notices, and correspondence between Jane Doe and Cedars are to be mailed to a California location; 62 disputes between the parties are to be resolved by arbitration that must occur in California; and California law is to apply to all disputes between the parties, whether based in tort or contract. 63 Given the parties’ clear intent to base their relationship in California, the Court will not read the placement of a semicolon as an intent to limit the scope of the choice of forum provision. 64
62 Id. at ¶ 17.
63 Id. at ¶ 21.
64 See Reliance-Grant Elevator Equipment Corp. v. Reliance Ball-Bearing Door Hanger Co., 205 A.D. 320, 199 N.Y.S. 476, 478 (N.Y. App. Div. 1923) (“If for the comma we substitute a period, and make the phrase an independent sentence, all ambiguity will disappear, and the cancellation proviso will clearly refer to the duration of the agreement, and not to the making of extensions.”). See also 11 Williston on Contracts § 32:9 (4th ed.) (“Attention is often paid to grammar and punctuation in determining the proper interpretation [*25] of a contract, but a court will disregard both grammatical constructs and the punctuation used in the written agreement where the context of the contract shows that grammatical or punctuation errors have occurred.”); 17A Am. Jur. 2d Contracts § 365 ( [HN9] “while a court, in construing a contract, will give due force to the grammatical arrangement of the clauses, it will disregard the grammatical construction if it is at variance with the intent of the parties as indicated by the contract as a whole.”).
The semicolon issue aside, the choice of law/choice of forum paragraph, according to its terms, applies to all actions that “aris[e] out of the Agreement.” The question, then, is whether Plaintiffs’ tort and contract claims may properly be said to “aris[e] out of the Agreement.” [HN10] “Where there is a contractual relationship between the parties, a cause of action in tort may sometimes arise out of the negligent manner in which the contractual duty is performed, or out of a failure to perform such duty.” 65 The Agreement mandates that “[o]n the arrival date, [Jane Doe] shall transfer, by a Power of Attorney … temporary custody of the Student [John Doe] to Cedars ….” 66 From the moment Jane Doe [*26] dropped her son off at Cedars Academy, therefore, the school was entrusted with “duties correspondent to the role of a caregiver.” 67 All of Plaintiffs’ claims, based as they are on an alleged failure to protect John Doe while he resided in a Cedars Academy dormitory, directly involve Cedars’ contractual undertaking to care for John Doe as “temporary custod[ian].” As such, the Court is satisfied that the claims “aris[e] out of the Agreement.”
65 Eads v. Marks, 39 Cal. 2d 807, 810-11, 249 P.2d 257 (Cal.1952). See also N. Am. Chem. Co. v. Superior Court, 59 Cal. App. 4th 764, 775, 69 Cal. Rptr. 2d 466(Cal. Ct. App. 1997); Southgate Recreation & Park Dist. v. California Assn. for Park & Recreation Ins., 106 Cal. App. 4th 293, 301-02, 130 Cal. Rptr. 2d 728 (Cal. Ct. App. 2003).
66 Agreement ¶ 3.
67 People v. Toney, 76 Cal. App. 4th 618, 621-22, 90 Cal. Rptr. 2d 578 (Cal. Ct. App. 1999)(citing People v. Cochran, 62 Cal.App. 4th 826, 832, 73 Cal. Rptr. 2d 257 (Cal. Ct. App. 1998))(” The terms ‘care or custody’ do not imply a familial relationship but only a willingness to assume duties correspondent to the role of a caregiver.”).
After reviewing all of the provisions within the four corners of the Agreement, the Court concludes that the parties intended to consent to the exclusive jurisdiction [*27] of California courts or arbitration panels to litigate their claims. [HN11] When “there is a forum selection clause in a contract, even when the venue where the suit is filed is proper, the court should decline to proceed when the parties freely agreed that litigation should be conducted in another forum.” 68 Unless the forum selection clause “is shown by the resisting party to be unreasonable under the circumstances,” such clauses are prima facie valid. 69 A choice of forum provision will be deemed “unreasonable” only when its enforcement would seriously impair the plaintiff’s ability to pursue its cause of action.” 70 Mere inconvenience or additional expense is not sufficient evidence of unreasonableness. 71
68 Eisenmann Corp. v. Gen. Motors Corp., 2000 Del. Super. LEXIS 25, 2000 WL 140781, *7 (Del. Super. Jan. 28, 2000) (citing Elia Corp. v. Paul N. Howard Co., 391 A.2d 214, 216 (Del. Super. 1978)).
69 Id. (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972)). Defendants have argued that the forum selection provision should be enforced if California has a “material connection” to the controversy. This inquiry is implicated by a choice of law analysis, but not by a choice of forum analysis. See Weil v. Morgan Stanley DW, Inc., 877 A.2d 1024 (Del. Ch. 2005).
70 Id.
71 Elia Corp., 391 A.2d at 216.
Other [*28] than arguing that the Agreement is invalid in its entirety because it is unconscionable, Plaintiffs do not provide any support for their contention that the Court should ignore the forum selection clause. 72 They have not, for instance, pointed to any circumstance that would suggest that litigating their claims in California “would seriously impair [their] ability to pursue [their] cause of action.” 73 Having determined that the Agreement is valid and enforceable as to both Jane Doe and John Doe, the Court is left with no basis in fact or law to suggest that the forum selection clause seriously impairs the Plaintiffs’ ability to pursue their cause of action. 74 Accordingly, given the well settled law [HN12] in Delaware that choice of forum provisions are enforceable absent a showing of unreasonableness, the Court must enforce the provision here and decline to exercise jurisdiction in this matter.
72 Beyond the pre-injury release provision, Plaintiffs have pointed to nothing in the Agreement to support an unconscionability argument, and the Court has discerned no basis for the argument on its own.
73 Eisenmann Corp., 2000 Del. Super. LEXIS 25, 2000 WL 140781 at 7 (citing M/S Bremen, 407 U.S. 1 at 10, 92 S. Ct. 1907, 32 L. Ed. 2d 513).
74 Here again, Plaintiffs [*29] have not argued that their ability to pursue their claims in California would be “seriously impaired,” e.g. by virtue of a statute of limitations that would bar their claims there or otherwise, and the Court can fathom no reason why the identical claims sub judice could not be raised in California.
Since the Court has determined that it should decline to exercise its jurisdiction over this dispute for the reasons set forth above, the Court need not decide the validity of the mandatory arbitration provision, nor whether Aspen should be dismissed based upon a lack of personal jurisdiction. These questions will be left to the California forum (be it a court or arbitration panel) that ultimately decides this case.
VI.
Based on the foregoing, Defendants’ Motion to Dismiss is hereby GRANTED.
IT IS SO ORDERED.
/s/ Joseph R. Slights, III
Joseph R. Slights, III, Judge
Summer Camp not liable for injuries of camper inflicted by another camper.
Posted: March 26, 2012 Filed under: Summer Camp | Tags: Camp, first aid, Injury, Medical Care, New York, Plaintiff, Recreation, summer camp Leave a commentMurawski v. Camp Nageela, 4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542; 2004 NY Slip Op 51045U
No advance knowledge of the possible assault does not make camp liable.
The plaintiff was a ten-year-old boy attending a multi-week summer camp. The plaintiff was attached by a smaller camper causing minor injuries and a broken finger. The plaintiff sued for “improper supervision and a failure to provide proper medical care after the assault.”
The defendants were the camp, camp employees and church officials who ran the camp. The defendants raised the defense of a spontaneous altercation that could not have been anticipated, and any delay in medical treatment caused no adverse effect upon the plaintiff.
The plaintiff shared a cabin with the camper who assaulted him. There had been a yelling altercation between the two boys prior to this incident. Generally, the two boys did not get along. The plaintiff was in the cabin looking for something. The smaller camper thought that the plaintiff was holding something of his when the two started yelling. The smaller camper eventually hit the plaintiff with a hockey stick.
The plaintiff did not complain to anyone about the other camper. The camp had no record of any problems and no one who saw the prior exchanges between thought those exchanges amounted to a major problem.
After the assault, the camp nurse splinted the finger of the plaintiff and followed up with the plaintiff twice. Each time the plaintiff informed the nurse his finger was feeling better. Two days later the plaintiff’s mother came to camp and took the plaintiff away for several hours. When she came back she asked the plaintiff’s finger be x-rayed. (For some reason, some reason this seems like a red flag to me.)
So?
For camps, the first hurdle that is always misunderstood by parents, rarely understood by camps and sometimes missed by courts is the standard of care that a camp owes to a camper. That standard is that of a reasonably prudent parent. That standard does not require constant supervision. The court found that constant supervision would not be a desirable situation because it would not foster self-reliance in the campers.
Camps, like schools are not insurers of safety for they cannot reasonably be expected to continuously supervise and control all movements and activities of the campers. . . .. In order to establish a breach of the duty to provide adequate supervision a plaintiff must show that the camp authorities had sufficient specific knowledge or notice of the dangerous conduct which caused the injury; that is, that the third-party acts could have reasonably been anticipated
Because constant supervision is not required, to be liable under New York law, the plaintiff must prove the camp was on notice that there was a problem or that a camper had exhibited dangerous conduct.
….there is no factual basis to conclude either that the camp’s agents had knowledge constituting notice of a particular danger to the infant plaintiff prior to the incident or that the incident that caused the infant plaintiff’s injuries was anything other than a sudden, unanticipated independent act by a fellow camper.
Thus without knowledge of prior bad acts or an intent on the part of the attacking camper, the camp is not liable for the acts of the smaller camper.
The next issue the court reviewed was the medical care. Several issues supported the camps’ defense.
The camper was inspected by a nurse initially and twice with follow ups. Each time the plaintiff told the nurse he was getting better. There was also no long-term damage to the plaintiff’s finger which would give rise to a claim or greater damages. Also, the plaintiff could not prove that the failure to provide immediate care did not cause injury upon the plaintiff.
So Now What?
You cannot rely on courts to inform parents of the standard of care that you must use with their children. That will eventually lead to insurance premiums you cannot afford.
Nor can you tell parents that you will treat their child with the same care they would. Again, parents never do anything that injures their child and any injury will create a problem for you.
What you can do is inform the parents of two things.
· How hard you work to keep kids safe.
· Kids get hurt.
As I have said repeatedly, absent foam rubber on every tree and trial, kids are going to find a way to get hurt. You need to make sure that parents know that the adventures and excitement that draw kids to your camp are the same things that may issue them. Like riding a bike, it takes a few crashes to learn how to ride a bike, and as you get better you push your limits more and crash some more.
If you do not get this idea across to parents, every time a kid is hurt, you may have to have a judge prove to the parent you are not liable. That is costs too much time and money.
The scary aspect of this case is the issue of medical care. Twenty years ago when I first started looking at cases in the outdoor recreation community, I never saw any allegations concerning medical care or first aid. Recently, I’ve written about two cases where it was an issue, and it seems to be a growing issue.
What do you think? Leave a comment.
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Murawski v. Camp Nageela, 4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542; 2004 NY Slip Op 51045U
Posted: March 26, 2012 Filed under: Legal Case, Summer Camp | Tags: Camp, Long Island, New York, New York City, Recreation, Summary judgment, Summer Camp Leave a commentMurawski v. Camp Nageela, 4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542; 2004 NY Slip Op 51045U
[***1] Nina Murawski, individually and as parent and Natural Guardian of Adam Murawski, an Infant, Plaintiffs, v. Camp Nageela, Camp Shevtai Yisroel, Jewish Education Program (JEP) of Long Island, rabbi shenker, rabbi glustein, jeffrey y. Arshravan and Eric Arshravan, an infant, Defendants.
01-2959
SUPREME COURT OF NEW YORK, SUFFOLK COUNTY
4 Misc. 3d 1025A; 798 N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 1542; 2004 NY Slip Op 51045U
June 10, 2004, Decided
NOTICE: [**1] THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
DISPOSITION: Defendants motion for summary judgment granted; complaint dismissed.
CORE TERMS: infant, supervision, summary judgment, camper, bunkhouse, altercation, personnel, notice, finger, nurse, summer camp, anticipated, fellow, failure to provide, medical care, medical report, counselor, residual, dropped, sworn, mitt
HEADNOTES
[*1025A] Negligence–Duty.
COUNSEL: MALLILO & GROSSMAN, ESQS., Attorneys for Plaintiffs, Flushing, NY.
MOLOD, SPITZ & DeSANTIS, PC, Attorneys for Defendants Camp Nageela, JEP, Rabbi Shenker and Rabbi Glustein, New York, NY.
JUDGES: Denise F. Molia, J.
OPINION BY: Denise F. Molia
OPINION
Denise F. Molia, J.
ORDERED that this motion by defendants Camp Nageela, Jewish Education Program of Long Island, Rabbi Shenker and Rabbi Glustein for summary judgment dismissing the complaint against them is granted.
This is an action to recover damages for personal injuries allegedly sustained by the infant plaintiff, Adam Murawski, then ten years old, when on August 11, 2000, he was assaulted by a fellow camper, defendant Eric Arshravan, in the bunkhouse they shared at defendant Camp Nageela, [**2] a sleep away summer camp operated by defendant Jewish Education Program of Long Island [JEP]. Defendant Rabbi Shenker is the director of JEP and defendant Rabbi Glustein is another employee of JEP. A derivative cause of action is asserted on behalf of infant plaintiff’s mother, plaintiff Nina Murawski.
Plaintiffs seek recovery from the camp defendants on two grounds – improper supervision and a failure to provide proper medical care after the assault. The camp defendants now move for summary judgment dismissing the complaint on the basis that the infant plaintiff’s injuries were the result of a spontaneous altercation that could not have been anticipated by camp officials. Defendants also contend that there was no adverse affect upon the infant plaintiff as a result of any delay in obtaining medical treatment for him. In support, defendants submit, inter alia, copies of the pleadings, a copy of the transcript of the testimony given by the infant plaintiff at his examination before trial, the personal affidavit of defendant Rabbi Shenker, and the sworn medical report of defendants’ examining physician, Dr. Leon Sultan.
At his examination before trial the infant plaintiff Adam [**3] Murawski testified to the effect that he shared a bunkhouse with four or five other boys at the camp, including the infant defendant Eric Arshravan, and a counselor. Adam also testified that Eric was somewhat smaller than him and that the two generally did not “get along well”. Adam stated that he and Eric had once had a previous argument during a kick ball game but that the disagreement did not go beyond Eric’s yelling at him. Adam testified that he that he could not remember whether he had complained about Eric to any of the camp counselors during the two week period prior to the subject incident and that the boys had not engaged in any physical altercations during that time period. Adam further testified that the incident occurred when the two boys were alone in the bunkhouse, that he had gone into the bunkhouse in order to get his baseball mitt and that Eric came in after him. While Adam was looking for his mitt he dropped something and then picked up something of Eric’s because he thought the item he dropped might be underneath or near it. Eric then told Adam to “put it down” and he did so. Adam further testified that the two boys had agreed to share a table and that he thought [**4] Eric became angry because he believed that Adam [***2] had moved one of Eric’s belongings. Shortly thereafter, Eric hit Adam with a hockey stick.
By his personal affidavit, defendant Rabbi Shenker states that at no time prior to the subject incident were the camp personnel advised that Adam had complained of any problems with the infant defendant and that the camp had no written reports of any incidents involving the boys from Adam’s bunkhouse other than the nurse’s report of the subject incident. As for the plaintiffs’ claim that the camp failed to provide proper medical attention for the infant plaintiff, Rabbi Shenker states that Adam was seen by the camp nurse after the incident and she determined that the Adam’s finger should be placed in a splint and that he should be followed, that the camp nurse twice followed up with Adam the next day and was told by Adam that his finger was feeling better. Rabbi Shenker further states that plaintiff Nina Murawski came to the camp two days after the incident to visit Adam and she took him off the camp grounds for several hours. When she brought Adam back to camp, she asked the camp personnel to arrange for an x-ray of Adam’s finger which was later [**5] taken at the emergency room at the local hospital.
The standard of care for persons having children entrusted to their care in a summer camp setting is that of a reasonably prudent parent. In such a setting, constant supervision is neither feasible nor desirable because one of the benefits of such an institution is to inculcate self-reliance in the campers which an overly protective supervision would destroy (Gustin v Association of Camps Farthest Out, Inc., 267 A.D.2d 1001, 700 N.Y.S.2d 327 [1999]). Camps, like schools are not insurers of safety for they cannot reasonably be expected to continuously supervise and control all movements and activities of the campers (Lesser v Camp Wildwood, 282 F. Supp. 2d 139 [2003]). In order to establish a breach of the duty to provide adequate supervision a plaintiff must show that the camp authorities had sufficient specific knowledge or notice of the dangerous conduct which caused the injury; that is, that the third-party acts could have reasonably been anticipated (see, Mirand v City of New York, 84 N.Y.2d 44, 637 N.E.2d 263, 614 N.Y.S.2d 372 [1994].
Here, viewing the record in a light [**6] most favorable to the plaintiffs (see, J. Rosen Furs, Inc. v Sigma Plumbing & Heating Corp., 249 A.D.2d 276, 670 N.Y.S.2d 596 [1998]), there is no factual basis to conclude either that the camp’s agents had knowledge constituting notice of a particular danger to the infant plaintiff prior to the incident or that the incident that caused the infant plaintiff’s injuries was anything other than a sudden, unanticipated independent act by a fellow camper (see, Mirand v City of New York, supra; Foster v New Berlin Central School Dist., 246 A.D.2d 880, 667 N.Y.S.2d 994 [1998]; Schlecker v Connetquot Central School Dist. of Islip, supra). There is also no evidence that the camp’s agents had any actual or constructive notice that the infant defendant was engaged in a prohibited activity or that they had a reasonable opportunity to prevent its continuance prior to the subject altercation (see, Mirand v City of New York, supra; Totan v Bd. of Educ., 133 A.D.2d 366, 519 N.Y.S.2d 374 [1978] app den 70 N.Y.2d 614, 524 N.Y.S.2d 432, 519 N.E.2d 343). The infant plaintiff, [**7] by his own admission, concedes that he notified none of the camp’s personnel concerning his fears of an impeding confrontation with the infant [***3] defendant. Therefore, even assuming, arguendo, that an issue of fact exists regarding the adequacy of the supervision, the need for additional supervision of the infant defendant prior to the incident could not have been apprehended (see, Nocilla v Middle Country School District, 302 A.D.2d 573, 757 N.Y.S.2d 300 [2003]; Foster v New Berlin Central School Dist., supra; McGregor v City of New York, 197 A.D.2d 609, 602 N.Y.S.2d 669 [1993] app den 84 N.Y.2d 802, 617 N.Y.S.2d 136, 641 N.E.2d 157; Schlecker v Connetquot Central School Dist. of Islip, supra).
In opposition, plaintiffs rely upon counsel’s affidavit and the purported affidavit of another camper. Counsel’s affidavit is without probative value as counsel professes no first hand knowledge of the fact and circumstances relating to plaintiffs’ claims (see, Siagkris v K & E Mechanical, Inc., 248 A.D.2d 458, 669 N.Y.S.2d 375 [1998]). The affidavit by the non party infant witness [**8] is also inadmissible as it has not been signed by him. 1 Plaintiff has thus failed to meet the burden of producing proof in admissible form sufficient to require a trial of material questions of fact (Papadopoulos Gardner’s Village, 198 A.D.2d 216, 604 N.Y.S.2d 570 [1984]). The moving defendants are therefore granted summary judgment dismissing plaintiffs’ improper supervision claims.
1 Nor has the Court has considered the affidavit of another non party infant witness attached to the defendants’ Reply papers as that affidavit is not signed by the affiant.
The moving defendants are also entitled to summary judgment with respect to plaintiffs’ remaining claim the gravamen of which is that defendants’ failure to provide the infant plaintiff with prompt medical care for his injuries has resulted in residual injuries. Dr. Leon Sultan, by his sworn medical report, affirms that he is a board-certified orthopedic surgeon who examined Adam Murawski for the defendants. Dr. Sultan opines [**9] that Adam’s left hand is unremarkable in that he is orthopedically stable and neurologically intact, and that the 5th metacarpal fracture is healed without any residual functional impairment. Plaintiffs having come forward with no medical proof to sustain their enhanced injury claim, defendants are entitled to summary judgment.
Accordingly, the motion by defendants Camp Nageela, Jewish Education Program of Long Island, Rabbi Shenker and Rabbi Glustein for summary judgment is granted and the complaint is dismissed as to these defendants. The Court’s computerized records reflect that the action was previously discontinued as to defendants Arshravan by stipulation filed with the County Clerk on August 28, 2001. In addition, plaintiffs’ failure to move for a default within one year after service of the complaint warrants a dismissal of the complaint as against the sole remaining defendant, Camp Shevtai Yisroel (CPLR 3215[c]). The complaint is therefore dismissed in its entirety.
[***4] X FINAL DISPOSITION NON-FINAL DISPOSITION
If you Listen to the FredCast, and who doesn’t, Take this Survey
Posted: March 15, 2012 Filed under: Cycling, Youth Camps, Zip Line | Tags: Bicycling, Cycling, Fred, FredCast, Podcast, The Wall Street Journal Leave a comment
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Is there a duty to notify parents when an investigation is being conducted by the state to protect campers?
Posted: February 27, 2012 Filed under: Florida, Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Summer Camp | Tags: Florida, Jurisdiction, Long-Arm Jurisdiction, Motion (legal), North Carolina, Parental Responsibility, summer camp, Youth Camp Leave a commentCamp Illahee Investors, Inc., v. Blackman, 870 So. 2d 80; 2003 Fla. App. LEXIS 17549; 28 Fla. L. Weekly D 2672
Parents claim the camp was negligent in not informing them the state department of social services was going to or had interviewed their kids.
The problem is the case does not answer the question. This again, is a jurisdiction and venue motion that was appealed. The defendant camp was located in North Carolina. The plaintiffs were Florida’s residents. The only contact the camp had with Florida was 22% of its campers came from Florida, and one of the owners would spend a week in Florida every year drumming up business for the next summer.
The initial allegations giving rise to the litigation are very interesting. The plaintiff’s claim, the camp and the owners were negligent because the:
…Defendants had a duty, after being informed that the North Carolina County Department of Social Services desired to interview the Plaintiffs’ minor children, to notify the Plaintiffs of the fact that the minor children were to be interviewed by the North Carolina County Department of Social Services about possible child abuse….
There was a second allegation that a junior counselor had injured one of the plaintiff’s when he stepped on her feet. (Where they dancing?) This claim was not resolved in this appeal either.
Summary of the case
The plaintiff’s sued in Florida, and the defendants moved to dismiss. The trial court did not dismiss for lack of jurisdiction, and the defendants appealed. The defendants argued that they were:
…not subject to the jurisdiction of a Florida court and, even if jurisdiction existed in Florida, that North Carolina was an adequate alternative forum. Camp Illahee further argued that it was immune from suit under North Carolina law and that Florida’s impact rule required dismissal.
To support their argument the defendant must show the facts that prove their allegations. That is usually done by affidavits of the defendants and possibly others to prove the issue, or really, the lack of contact with the state.
Camp Illahee is a North Carolina corporation; the summer camp is located in North Carolina; Camp Illahee has no offices in Florida; it has no employees in Florida, although some of the employees who work at the camp during the summer are from Florida; Camp Illahee does no advertising in Florida by newspapers, radio, or television, but it has a one and one-half page posting on its internet website advising of “fall reunion and video shows.”
The court must then look at the State Long Arm Statute to determine if the facts make the defendant subject to the jurisdiction of the court. Under Florida’s law that analysis is:
…whether (1) there are sufficient jurisdictional facts to bring the action within the purview of the long-arm statute; and (2) the nonresident defendant involved has sufficient minimum contacts with Florida to satisfy constitutional due process requirements.
The Florida Long Arm Statute sets forth the minimum requirements to establish jurisdiction over out of state parties.
Section 48.193(1)(a)
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
Section 48.193(2):
A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.
The court then applies the information presented by the parties to the requirements of the statutes to see if the defendant has the necessary minimum contacts with the state to be sued in that state and subject to the laws of that state.
So Now What?
The trend from the courts is to allow you to be brought into distant states and their judicial system. This case is a rarity. This is another example of where the agreement between the camp and the parents or any parties to any outdoor recreation, should agree in advance to where any litigation will be developed.
As far as notifying parents of an interview by social services for possible child abuse, I think I would always lean towards notifying the parents. In fact, I think I would notify the parents immediately. A parent must believe that their child is safe. Whether the child is safe is put into question, if social services is investigating your camp.
This may be a PR nightmare or disaster for any camp or program dealing with minors. You will need to make sure you bring in PR professionals and probably your attorney if this situation arises.
You should also set up a program and working relationship where anyone can come and talk to you about problems. Hopefully, before social services had been called, you are on top of the issue and have dealt with it.
What do you think? Leave a comment.
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Camp Illahee Investors, Inc., v. Blackman, 870 So. 2d 80; 2003 Fla. App. LEXIS 17549; 28 Fla. L. Weekly D 2672
Posted: February 27, 2012 Filed under: Florida, Jurisdiction and Venue (Forum Selection), Legal Case, Minors, Youth, Children, Summer Camp | Tags: Camp, Florida, Long-Arm Jurisdiction, Motion (legal), North Carolina, Recreation, summer camp Leave a commentCamp Illahee Investors, Inc., v. Blackman, 870 So. 2d 80; 2003 Fla. App. LEXIS 17549; 28 Fla. L. Weekly D 2672
Camp Illahee Investors, Inc., a North Carolina Corporation, Appellant, v. Michael Blackman and Patrice Blackman, Individually and as the Parents, Natural Guardians and next best friends of Olivia Blackman and Sophie Blackman, minor children, and Frank Tindall and Elizabeth Tindall, Appellees.
Case No. 2D02-4324
COURT OF APPEAL OF FLORIDA, SECOND DISTRICT
870 So. 2d 80; 2003 Fla. App. LEXIS 17549; 28 Fla. L. Weekly D 2672
November 19, 2003, Opinion Filed
PRIOR HISTORY: [**1] Appeal from nonfinal order of the Circuit Court for Hillsborough County; Daniel E. Gallagher, Senior Judge.
DISPOSITION: Reversed and remanded with directions.
COUNSEL: J. Gregory Giannuzzi of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellant.
Jeffrey A. Blau, Tampa, for Appellees Michael Blackman and Patrice Blackman, Individually and as the Parents, Natural Guardians and next best friends of Olivia Blackman and Sophie Blackman, minor children.
No appearance for Appellees, Frank Tindall and Elizabeth Tindall.
JUDGES: SILBERMAN, Judge. STRINGER, J., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.
OPINION BY: SILBERMAN
OPINION
[*82] SILBERMAN, Judge.
Camp Illahee Investors, Inc., a North Carolina corporation, appeals a nonfinal [*83] order that denied its motion to dismiss for lack of personal jurisdiction. Because jurisdiction was not established under Florida’s long-arm statute, we reverse.
Appellees Michael and Patrice Blackman, individually and on behalf of their minor daughters, sued Camp Illahee and its owners, Frank and Elizabeth Tindall, for alleged torts committed in North Carolina while [**2] the Blackmans’ two daughters were attending summer camp in 2001. 1 In their first amended complaint, the Blackmans alleged that while their daughters were at the camp, someone placed an “anonymous child abuse call” to a county department of social services in North Carolina, whose representatives then interviewed the Blackmans’ daughters. The Blackmans alleged that the “Defendants had a duty, after being informed that the North Carolina County Department of Social Services desired to interview the Plaintiffs’ minor children, to notify the Plaintiffs of the fact that the minor children were to be interviewed by the North Carolina County Department of Social Services about possible child abuse.” The Blackmans also alleged that a junior counselor battered one of the daughters “by stepping on her feet and inflicting other physical injuries and mental abuse” on her.
1 The trial court dismissed the Tindalls from the litigation, and the Blackmans have not appealed that ruling.
Camp Illahee filed a motion to dismiss [**3] and asserted, among other grounds, that it was not subject to the jurisdiction of a Florida court and, even if jurisdiction existed in Florida, that North Carolina was an adequate alternative forum. Camp Illahee further argued that it was immune from suit under North Carolina law and that Florida’s impact rule required dismissal.
Camp Illahee submitted affidavits from the Tindalls, the owners and operators of the camp. The affidavits reflect that Camp Illahee is a North Carolina corporation; the summer camp is located in North Carolina; Camp Illahee has no offices in Florida; it has no employees in Florida, although some of the employees who work at the camp during the summer are from Florida; Camp Illahee does no advertising in Florida by newspapers, radio, or television, but it has a one and one-half page posting on its internet website advising of “fall reunion and video shows.”
Mrs. Tindall’s affidavit also reflects that she travels to various states to engage in the reunion and video shows, which are designed to have “the children get together to talk about Camp, and to become excited for camp the next summer.” The reunions take place in the homes of camp families, and the [**4] families receive a discount in the camp fee for hosting the reunions. The discounts amounted to .15% of Camp Illahee’s gross revenues in 2000 and .08% in 2001. In 2000 and 2001, 22% of the campers were from Florida.
Although Camp Illahee argues that its motion to dismiss could properly have been granted on any of the grounds raised in its motion, the key issue is whether the trial court had long-arm jurisdiction over Camp Illahee. [HN1] Our standard of review on the issue of personal jurisdiction over a foreign corporation is de novo. See Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So. 2d 582, 584 (Fla. 2000). [HN2] Additionally, we are required to strictly construe Florida’s long-arm statute. See Esberger v. First Fla. Bus. Consultants, Inc., 338 So. 2d 561, 562 (Fla. 2d DCA 1976).
The pertinent facts relating to jurisdiction are not in dispute. [HN3] The determination [*84] of whether the trial court has personal jurisdiction over Camp Illahee turns on “whether (1) there are sufficient jurisdictional facts to bring the action within the purview of the long-arm statute; and (2) the nonresident defendant involved has sufficient minimum contacts with Florida to [**5] satisfy constitutional due process requirements.” Kin Yong Lung Indus. Co. v. Temple, 816 So. 2d 663, 666 (Fla. 2d DCA 2002); see also Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989).
In its order denying the motion to dismiss, the trial court did not discuss this two-prong test. Instead, it simply stated, “Jurisdiction as to Camp Illahee Investors, Inc. will remain in Florida pursuant to the doctrine of forum non conveniens, as set forth in Fla. R. Civ. P. 1.061.” However, [HN4] before reaching the issue of forum non conveniens under Florida Rule of Civil Procedure 1.061, the trial court was required to first determine whether it had in personam jurisdiction in accordance with the two-prong test. See La Reunion Francaise, S.A. v. La Costena, 818 So. 2d 657, 659 (Fla. 3d DCA 2002) (concluding that there was no personal jurisdiction over the foreign defendant and, therefore, no need to reach other issues raised in the motion to dismiss, including the issue of forum non conveniens).
After reviewing the record and the applicable statutory language in light of the required two-prong jurisdictional analysis, we conclude [**6] that the trial court should have dismissed the Blackmans’ first amended complaint for lack of in personam jurisdiction. The allegations of the first amended complaint establish that the only possible bases for jurisdiction are under sections 48.193(1)(a) or 48.193(2) of the long-arm statute. Section 48.193(1)(a) [HN5] provides as follows:
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
Section 48.193(2) [HN6] states as follows:
A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.
In the trial [**7] court, the Blackmans asserted that because Mrs. Tindall came to Florida one week a year for the reunion and video shows, Camp Illahee was conducting business in Florida. They also argued that the families that hosted the reunions were agents of Camp Illahee.
Concerning the agency argument, nothing in the record reflects that either an apparent or actual agency relationship existed between the host families and Camp Illahee. In particular, there was no showing that Camp Illahee made any representations that the host families were the agents of Camp Illahee, or that Camp Illahee, as principal, exercised control over the families, as agents. See Ilgen v. Henderson Props., Inc., 683 So. 2d 513, 514-15 (Fla. 2d DCA 1996) (discussing the elements necessary to establish apparent or actual agency); State v. Am. Tobacco Co., 707 So. 2d 851, 854 (Fla. 4th DCA 1998) (stating that control by the principal [*85] over the agent is a necessary element of agency).
The Blackmans’ second argument is premised on section 48.193(1), which confers jurisdiction for “any cause of action arising from the doing of” any of the enumerated items, such as conducting business in Florida. [**8] [HN7] By its terms, section 48.193(1) requires connexity between the defendant’s activities and the cause of action. Wendt v. Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002). Here, the record reflects that the connexity requirement has not been met because the Blackmans’ claims did not arise from the reunions and video shows that took place in Florida during one week per year. Rather, the claims arose out of alleged torts that occurred in North Carolina while the Blackmans’ daughters attended the camp.
Even if the undisputed facts fell within the ambit of section 48.193(1), Camp Illahee must have sufficient minimum contacts with Florida to satisfy due process requirements. See Venetian Salami, 554 So. 2d at 500. [HN8] The test is whether Camp Illahee’s conduct is such that it “should reasonably anticipate being haled into court” in Florida. See Venetian Salami, 554 So. 2d at 500 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980)); see also Emerson v. Cole, 847 So. 2d 606, 608 (Fla. 2d DCA 2003). We agree with Camp Illahee that the limited contact between it [**9] and Florida as a result of the yearly reunion and video shows is insufficient to establish that it could reasonably anticipate being haled into court in Florida for the allegedly tortious conduct occurring in North Carolina.
A second potential basis for jurisdiction is section 48.193(2), which provides that a defendant is subject to a Florida court’s jurisdiction when the defendant “is engaged in substantial and not isolated activity within this state . . . whether or not the claim arises from that activity.” [HN9] This section “does not require connexity between a defendant’s activities and the cause of action.” Woods v. Nova Cos. Belize Ltd., 739 So. 2d 617, 620 (Fla. 4th DCA 1999). Additionally, if the defendant’s activities meet the requirements of this section, the due process requirement of minimum contacts is fulfilled. Id. However, the record before us does not support a conclusion that Camp Ilahee’s conduct constitutes substantial activity in Florida. See deMco Techs., Inc. v. C.S. Engineered Castings, Inc., 769 So. 2d 1128, 1132 (Fla. 3d DCA 2000) (stating that sporadic sales in Florida could not provide jurisdiction for litigation regarding [**10] an unrelated promissory note); Price v. Point Marine, Inc., 610 So. 2d 1339, 1341 (Fla. 1st DCA 1992) (noting that sporadic activities or visits to Florida consisting of the occasional solicitation of business in Florida do not constitute “substantial and not isolated activity”).
Because the undisputed facts do not demonstrate a basis for jurisdiction under Florida’s long-arm statute, we reverse and remand with directions that the trial court dismiss the Blackmans’ claims without prejudice to their refiling the claims in the appropriate jurisdiction. In light of our conclusion regarding the lack of in personam jurisdiction, the other grounds asserted by Camp Illahee in support of reversal are moot.
Reversed and remanded with directions.
STRINGER, J., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.
Information, Education and knowledge prevent a mother from suing a camp and the Girl Scouts
Posted: February 20, 2012 Filed under: Minors, Youth, Children, Mississippi, Summer Camp, Youth Camps | Tags: Bedroom, Bunk bed, Cabin, Camp, Child, Girl Scouts, Girl Scouts of America, Recreation, Summer Camp Leave a commentBuck, v. Camp Wilkes, Inc. 906 So. 2d 778; 2004 Miss. App. LEXIS 1141
Besides top bunk of a bunk bed is just not a dangerous instrumentality.
The mother of a thirteen-year old girl sued the Girl Scouts of Gulf Pine Council, Inc., the troop leader of her daughter’s unit and the camp when the girl fell off the top bunk of a bunk bed injuring her. The basis of the suit was the defendant’s actions caused or contributed to the thirteen-year olds fall. After the defendants were dismissed on summary judgment by the trial court the mother appealed claiming the lower court failed to determine the following:
(1) in failing to follow existing standards in granting the defendants’ motions for summary judgment, (2) in finding no merit to Buck’s argument that a causal relationship existed between Boozer’s temporary absence at the time of the accident and Jamie’s falling from the bed, and in applying the wrong standard when considering Boozer and the Girl Scouts’s lack of supervision, and (3) in ruling as a matter of law that a bunk bed is not a dangerous instrumentality and that Appellees‘ use of bunk beds did not amount to a failure on their part to use reasonable care in providing Jamie a reasonably safe place to sleep.
The entire case revolved around what did the injured girl’s mother know?
The mother took her daughter to camp and helped set up her bed the first night. The second night the group moved to another cabin because the first cabin did not have a working refrigerator. The mother was not there for the move or the remaining nights. The girls decided to sleep on the top bunks, even though lower bunks were available.
The second night after the move the third night in total, the thirteen-year old rolled off the bunk and fell suffering injuries.
So?
The first argument was dismissed because there was no legal (causal) relationship between the defendant leader leaving for an errand and the girl falling out of the bunk. No supervision when the girl fell would have prevented her from falling.
The plaintiff then argued, as part of the first appeal argument that the girls should not have been allowed to sleep on the top bunk. However, the court found the plaintiff presented no evidence that bunk beds or sleeping on the top bunk by thirteen-year old girls were dangerous.
The court then looked at whether bunk beds were a dangerous instrumentality. This means that in and of themselves, bunk beds are dangerous. Guns are probably the best example of a dangerous instrumentality. However, the court found that there was no evidence the beds where dangerous on their face. The mother during her deposition testified that she knew her daughter might be sleeping on a bunk bed, expressed no concerns about that fact and did not inform anyone that she did not want her daughter sleeping on the bed.
The court referred to a New York decision that held that an innkeeper is not responsible for the beds, when the parent is the one who chooses whether or not their child can sleep in it.
Finally, the court looked at the failure to warn issue. A land owner owes a duty of care to someone on the land based on the relationship between the land owner and the person. Here, the thirteen-year old was an invitee. A landowner’s duty to an invitee is “exercising reasonable care to keep its premise’s safe, or to warn Jamie [the injured girl] of any hidden or concealed perils of which it knew, or should have known, in the exercise of reasonable care.”
Here again the court had no evidence in front of it showing that bunk beds were dangerous so that the landowner, the camp, needed to inform the mother of the dangers.
So Now What?
What stands out in this case is the fact the mother, and probably the daughter, knew what the daughter was going to do and did not stop those acts. If a parent and a child know and understand what the risk of the activity is, then it is difficult for them to prove that the risks were dangerous. If the risks were dangerous, then why didn’t the mother inform the daughter or the troop leader that she did not want her daughter participating in the particular risks?
Here, the proof came out in a deposition. However, I believe that is relying on luck to hope that discovery will save your case. Better to point out all the risks of the activity to the parents and children and be able to prove that you did point them out.
There are two ways of doing that. The first is to put the risks in a release and have the parents sign the release. This works for single day activities were the risks can be easily identified…..to some extent.
Better to put everything you can on your website. A movie of the cabins showing bunk beds would have also proven the points to the parents and the court. If each cabin is different have the parents look at the cabins that their child is staying in. Always point out that cabins are different and some have other features and numerate the risks.
Do the same with the dining hall, health club, paths and all buildings and activity areas. Give the parents every opportunity to experience the camp without leaving their computer. No matter what you show it will help sell the camp and keep parents informed of the risks.
Proving the parent watched the videos is easy. On all of your literature tell the parents to go to the website and look around. On the release, have the parents agree that they did go to the website and look around.
If you think, the videos are difficult to do, then don’t. Turn it into a project and have the kids make them!
What do you think? Leave a comment.
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Buck, v. Camp Wilkes, Inc. 906 So. 2d 778; 2004 Miss. App. LEXIS 1141
Posted: February 20, 2012 Filed under: Legal Case, Minors, Youth, Children, Summer Camp, Youth Camps | Tags: Appeal, Appellant, Bunk bed, Cabin, Camp, Girl Scouts, Girl Scouts of America, Law, MISSISSIPPI, Summary judgment, United States district court Leave a commentBuck, v. Camp Wilkes, Inc. 906 So. 2d 778; 2004 Miss. App. LEXIS 1141
Debbie Buck, as mother and natural guardian of Jamie Buck, Appellant, v. Camp Wilkes, Inc.; Girl Scouts of Gulf Pines Council, Inc.; and Deborah Boozer, Appellees.
NO. 2003-CA-01065-COA
COURT OF APPEALS OF MISSISSIPPI
906 So. 2d 778; 2004 Miss. App. LEXIS 1141
December 14, 2004, Decided
PRIOR HISTORY: [**1] COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. DATE OF TRIAL COURT JUDGMENT: 4/17/2003. TRIAL JUDGE: HON. JERRY O. TERRY, SR. TRIAL COURT DISPOSITION: TRIAL JUDGE GRANTED SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS DEBORAH BOOZER AND GIRL SCOUTS OF GULF PINES COUNCIL, INC. AND DISMISSED APPELLANTS’ CLAIM WITH PREJUDICE.
DISPOSITION: AFFIRMED.
COUNSEL: ATTORNEYS FOR APPELLANT: JAMES CLAYTON GARDNER, DAVID C. FRAZIER, and WILLIAM L. DENTON.
ATTORNEYS FOR APPELLEES: DORRANCE DEE AULTMAN, ROGER T. CLARK, PATRICK R. BUCHANAN, KIMBERLY DAWN SAUCIER ROSETTI, and SAMUEL TRENT FAVRE.
JUDGES: BEFORE KING, C.J., LEE, P.J., AND IRVING, J. KING, C.J., BRIDGES AND LEE, P.JJ., CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.
OPINION BY: IRVING
OPINION
[*779] NATURE OF THE CASE: CIVIL – PERSONAL INJURY
IRVING, J., FOR THE COURT:
P1. Debbie Buck filed a personal injury action on behalf of her minor daughter, Jamie, against Camp Wilkes, Girl Scouts of Gulf Pine Council, Inc., and troop leader Deborah Boozer, for injuries sustained when the child fell out of a bunk bed at camp. In her complaint, Buck alleged that the defendants’ negligent conduct caused Jamie to sustain multiple damages. [**2] In response, Boozer filed a motion for summary judgment, and Girl Scouts filed a joinder, adopting Boozer’s motion. On April 17, 2003, after a hearing on the matter, the trial judge granted Boozer and Girl Scouts’s motion and found that Buck failed to show that the defendants’ actions caused or contributed to Jamie’s fall. On May 14, Buck filed a notice of appeal of the judge’s grant of Boozer and Girl Scouts’s motion.
P2. On May 28, Camp Wilkes filed a motion for summary judgment. The trial court entered a final judgment of dismissal, granting Camp Wilkes’s motion, and Buck again filed a notice of appeal. Buck’s first and second appeal were consolidated.
P3. In this appeal, Buck seeks review of whether the trial court committed reversible error (1) in failing to follow existing standards in granting the defendants’ motions for summary judgment, (2) in finding no merit to Buck’s argument that a causal relationship existed between Boozer’s temporary absence at the time of the accident and Jamie’s falling from the bed, and in applying the wrong standard when considering Boozer and the Girl Scouts’s lack of supervision, and (3) in ruling as a matter of law that a bunk bed is [**3] not a dangerous instrumentality and that Appellees’ use of bunk beds did not amount to a failure on their part to use reasonable care in providing Jamie a reasonably safe place to sleep.
[*780] P4. We find no reversible error; therefore, we affirm the trial court’s grant of summary judgment in favor of the Appellees.
FACTS
P5. In June 2000, thirteen-year-old Jamie Buck attended a Girl Scouts camping trip with her troop at Camp Wilkes. The chaperones for the trip were troop leader, Deborah Boozer, and assistant leader, Jenny White. Upon arriving at the camp, Jamie’s mother helped Jamie set up Jamie’s bed. 1 The next day, however, the troop moved to another cabin because their refrigerator was not working. 2 That night, all of the girls decided to sleep on the top bunks, and everyone, except Jamie, pulled their beds together to make a single bed. The following night, Jamie was asleep on the top bunk when she rolled out of her bed and sustained injuries to her face. Boozer was not present at the time of the accident because she had gone to retrieve supplies but had left the troop’s assistant leader with the girls while she was gone. Additional facts will be related during our discussion [**4] of the issues.
1 The camp furnished bunk beds for the girls to sleep on. The beds did not have any guard rails.
2 The second cabin had a similar layout as the first cabin and also had bunk beds for the girls to sleep on.
DISCUSSION AND ANALYSIS OF THE ISSUES
(1)Standard of Review
P6. Buck first contends that by granting the defendants’ summary judgment motions, the trial judge failed to view the facts and issues in the light most favorable to her.
P7. The law is well established with respect to the grant or denial of summary judgments. [HN1] A summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “All that is required of an opposing party to survive a motion for summary judgment is to establish a genuine issue of material fact by the means available under [**5] the rule.” Lowery v. Guaranty Bank and Trust Co., 592 So. 2d 79, 81 (Miss. 1991) (citing Galloway v. Travelers Ins. Co., 515 So. 2d 678, 682 (Miss. 1987)). [HN2] “In determining whether the entry of summary judgment [is] appropriate, [the appellate court] reviews the judgment de novo, making its own determination on the motion, separate and apart from that of the trial court.” Lowery, 592 So. 2d at 81. “The evidentiary matters are viewed in the light most favorable to the nonmoving party.” Id. “If after this examination, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, then summary judgment is affirmed, but if after examining the evidentiary matters there is a genuine issue of material fact, the grant of summary judgment is reversed.” Lowery, 592 So. 2d at 81 (citing Newell v. Hinton, 556 So. 2d 1037, 1041 (Miss. 1990)).
P8. A thorough examination of the record reveals that Buck failed to meet her burden of producing significant evidence to rebut the defendants’ showing that no genuine issue of material fact existed. Buck also produced [**6] no evidence to show that the defendants’ breached the established standard of care and that such breach was the cause of Jamie’s injuries. As a result, the trial judge appropriately granted the defendants’ summary judgment motions.
[*781] (2) Breach of Duty
P9. Buck argues that the trial court erred in finding that there was no causal relationship between Boozer’s temporary absence at the time of the accident and Jamie’s falling from the bed. Buck also argues that Boozer and Girl Scouts failed to properly supervise Jamie and the other minor children by not requiring the children to sleep on the bottom bunks, or at least, on bunk beds with side rail protectors. 3
3 Buck argues that the beds were donated by the U.S. Navy, and therefore the beds were designed for adults, not minors.
P10. [HN3] “In this negligence action, [Buck] bears the burden of producing evidence sufficient to establish the existence of [a] duty, breach, proximate causation, and damages.” Simpson v. Boyd, 880 So. 2d 1047, 1050 [**7] (P 12) (Miss. 2004) (citing Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So. 2d 790, 794 (Miss. 1995)).
P11. At the conclusion of the motion hearing, the trial judge found that Buck did not produce any evidence to indicate negligence by Boozer or Girl Scouts. We agree with the trial judge’s findings. However, assuming arguendo that Boozer was negligent in leaving the troop with the assistant troop leader, Buck has failed to demonstrate how Boozer’s absence contributed to Jamie’s injuries.
P12. Similarly, Buck has presented no authority that would substantiate her claim that the troop should not have been allowed to sleep on the beds without guard rails, or at least should have been made to sleep on the bottom bunks. Therefore, this argument is without merit.
(3) Dangerous Instrumentality
P13. Buck’s next allegation of error concerns the trial judge’s failure to find that a bunk bed constituted a dangerous instrumentality. The trial judge, relying on the New York case of Rueben v. Olympic Resort, Inc., 24 Misc. 2d 131, 198 N.Y.S. 2d 408 (N.Y. 1960), coupled with Buck’s lack of proof, found no merit in Buck’s contention [**8] that a bunk bed is a dangerous instrumentality. In Reuben, a six-year-old child was vacationing with her family at a hotel when she fell out of the top bunk and was injured. Id. at 409. The bunk bed had no guard rails. Id. Although the court denied the child’s parents recovery on other grounds, it commented that:
This Court is not prepared to state that a bunk bed without a guard rail is a dangerous instrumentality in and of itself. Such a bed, even with a guard rail, might be very dangerous to a child six months of age. Without a guard rail such a bed may be entirely safe for a child of fourteen years. It is for the parents of the child to determine what equipment is necessary or suitable for their own children. The hotel keeper cannot be presumed to know.
Id. at 409-10.
P14. We, like the trial judge and the Reuben court, [HN4] are not prepared to say that a bunk bed being used by a thirteen-year old without guard rails is a dangerous instrumentality. As noted by Camp Wilkes, Buck has failed to show any defect in the design of the bed or offered any evidence that the bed failed to comply with applicable standards, regulations, or guidelines. [**9] Buck even testified in a deposition that she knew what type bed her daughter was sleeping on and that she had no concerns about her daughter sleeping on the top bunk. Buck further stated that she did not inform anyone that she did not want her daughter sleeping on the top [*782] bunk. For the forgoing reasons, we find this issue to be without merit.
P15. Buck also argues that Camp Wilkes, by its use of bunk beds, failed to use reasonable care in providing a safe place for Jamie to sleep and also failed to adequately maintain and inspect its premises in a reasonably prudent manner. Buck further contends that Camp Wilkes failed to warn Jamie of a dangerous condition which the camp knew, or should have known, existed on their premises.
P16. [HN5] Camp Wilkes properly advances that it owed Jamie, as an invitee, the duty of exercising reasonable care to keep its premises safe, or to warn Jamie of any hidden or concealed perils of which it knew, or should have known, in the exercise of reasonable care. Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So. 2d 646, 648 (Miss. 1988) (citing Downs v. Corder, 377 So. 2d 603, 605 (Miss. 1979)). However, Camp [**10] Wilkes argues that a bunk bed is an item normally encountered on the business premises of camps like Camp Wilkes and that a bunk bed is not a hidden or concealed peril.
P17. We have already found that a bunk bed is not an inherently dangerous instrumentality. We now find that Buck has failed to demonstrate or show that the bunk bed in question was in any way defective. Therefore, we find no merit in Buck’s argument that Camp Wilkes, by its use of bunk beds, failed to use reasonable care in providing a safe place for Jamie to sleep.
P18. Finally, Buck asserts that the Appellees’ actions constituted negligence per se because Jamie was less than fourteen years old at the time of the accident. The record reveals that Buck failed to cite any case law in support of this proposition. [HN6] “Issues cannot be decided based on assertions from the briefs alone.” Pulphus v. State, 782 So. 2d 1220, 1224 (Miss. 2001) (P 15) (citing Robinson v. State, 662 So. 2d 1100, 1104 (Miss. 1995)). Similarly, a failure to cite legal authority in support of a proposition precludes this Court from considering the issue on appeal. Grey v. Grey, 638 So. 2d 488, 491 (Miss. 1994) [**11] (citing Matter of Estate of Mason v. Fort, 616 So. 2d 322, 327 (Miss. 1993)).
P19. However, notwithstanding Buck’s failure to supply any authority in support of her proposition that allowing a thirteen-year old to sleep in a bunk bed not equipped with guard rails constitutes negligence per se, we refuse to embrace such a proposition. Therefore, we affirm the decision of the trial court granting summary judgment to the Appellees.
P20. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES AND LEE, P.JJ., CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. MYERS, J., NOT PARTICIPATING.
Florida statute that allows a parent to release a minor’s right to sue
Posted: February 17, 2012 Filed under: Florida, Minors, Youth, Children | Tags: Child, Children Youth and Family, Family, Florida law, Legal guardian, Minor, Minor (law), parent, Parental Rights, Release Leave a commentTITLE 43. DOMESTIC RELATIONS (Chs. 741-753)
CHAPTER 744. GUARDIANSHIP
PART III. TYPES OF GUARDIANSHIP
GO TO FLORIDA STATUTES ARCHIVE DIRECTORY
Fla. Stat. § 744.301 (2012)
§ 744.301. Natural guardians
(1) The mother and father jointly are natural guardians of their own children and of their adopted children, during minority. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom custody of the child is awarded. If the parents are given joint custody, then both continue as natural guardians. If the marriage is dissolved and neither the father nor the mother is given custody of the child, neither shall act as natural guardian of the child. The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction enters an order stating otherwise.
(2) Natural guardians are authorized, on behalf of any of their minor children, to:
(a) Settle and consummate a settlement of any claim or cause of action accruing to any of their minor children for damages to the person or property of any of said minor children;
(b) Collect, receive, manage, and dispose of the proceeds of any such settlement;
(c) Collect, receive, manage, and dispose of any real or personal property distributed from an estate or trust;
(d) Collect, receive, manage, and dispose of and make elections regarding the proceeds from a life insurance policy or annuity contract payable to, or otherwise accruing to the benefit of, the child; and
(e) Collect, receive, manage, dispose of, and make elections regarding the proceeds of any benefit plan as defined by s. 710.102, of which the minor is a beneficiary, participant, or owner, without appointment, authority, or bond, when the amounts received, in the aggregate, do not exceed $ 15,000.
(3) In addition to the authority granted in subsection (2), natural guardians are authorized, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a commercial activity provider, or its owners, affiliates, employees, or agents, which would accrue to a minor child for personal injury, including death, and property damage resulting from an inherent risk in the activity.
(a) As used in this subsection, the term “inherent risk” means those dangers or conditions, known or unknown, which are characteristic of, intrinsic to, or an integral part of the activity and which are not eliminated even if the activity provider acts with due care in a reasonably prudent manner. The term includes, but is not limited to:
1. The failure by the activity provider to warn the natural guardian or minor child of an inherent risk; and
2. The risk that the minor child or another participant in the activity may act in a negligent or intentional manner and contribute to the injury or death of the minor child. A participant does not include the activity provider or its owners, affiliates, employees, or agents.
(b) To be enforceable, a waiver or release executed under this subsection must, at a minimum, include the following statement in uppercase type that is at least 5 points larger than, and clearly distinguishable from, the rest of the text of the waiver or release:
NOTICE TO THE MINOR CHILD‘S NATURAL GUARDIAN
READ THIS FORM COMPLETELY AND CAREFULLY. YOU ARE
AGREEING TO LET YOUR MINOR CHILD ENGAGE IN A
POTENTIALLY DANGEROUS ACTIVITY. YOU ARE AGREEING THAT,
EVEN IF ( name of released party or parties ) USES
REASONABLE CARE IN PROVIDING THIS ACTIVITY, THERE IS A
CHANCE YOUR CHILD MAY BE SERIOUSLY INJURED OR KILLED
BY PARTICIPATING IN THIS ACTIVITY BECAUSE THERE ARE
CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT
BE AVOIDED OR ELIMINATED. BY SIGNING THIS FORM YOU ARE
GIVING UP YOUR CHILD’S RIGHT AND YOUR RIGHT TO RECOVER
FROM ( name of released party or parties ) IN A
LAWSUIT FOR ANY PERSONAL INJURY, INCLUDING DEATH, TO
YOUR CHILD OR ANY PROPERTY DAMAGE THAT RESULTS FROM
THE RISKS THAT ARE A NATURAL PART OF THE ACTIVITY. YOU
HAVE THE RIGHT TO REFUSE TO SIGN THIS FORM, AND
( name of released party or parties ) HAS THE
RIGHT TO REFUSE TO LET YOUR CHILD PARTICIPATE IF YOU
DO NOT SIGN THIS FORM.
(c) If a waiver or release complies with paragraph (b) and waives no more than allowed under this subsection, there is a rebuttable presumption that the waiver or release is valid and that any injury or damage to the minor child arose from the inherent risk involved in the activity.
1. To rebut the presumption that the waiver or release is valid, a claimant must demonstrate by a preponderance of the evidence that the waiver or release does not comply with this subsection.
2. To rebut the presumption that the injury or damage to the minor child arose from an inherent risk involved in the activity, a claimant must demonstrate by clear and convincing evidence that the conduct, condition, or other cause resulting in the injury or damage was not an inherent risk of the activity.
3. If a presumption under this paragraph is rebutted, liability and compensatory damages must be established by a preponderance of the evidence.
(d) Nothing in this subsection limits the ability of natural guardians, on behalf of any of their minor children, to waive and release, in advance, any claim or cause of action against a noncommercial activity provider, or its owners, affiliates, employees, or agents, to the extent authorized by common law.
(4) All instruments executed by a natural guardian for the benefit of the ward under the powers specified in this section are binding on the ward. The natural guardian may not, without a court order, use the property of the ward for the guardian’s benefit or to satisfy the guardian’s support obligation to the ward.
HISTORY: S. 1, ch. 74-106; s. 8, ch. 75-166; s. 7, ch. 75-222; s. 1, ch. 77-190; s. 3, ch. 79-221; s. 17, ch. 89-96; s. 22, ch. 92-200; s. 66, ch. 95-211; s. 73, ch. 97-170; s. 11, ch. 2002-195; s. 8, ch. 2005-101; s. 3, ch. 2006-178, eff. July 1, 2006; s. 2, ch. 2010-27, eff. Apr. 27, 2010.
NOTES:
AMENDMENTS
The 2005 amendment by s. 8, ch. 2005-101, effective June 1, 2005, rewrote (2).
The 2006 amendment by s. 3, ch. 2006-178, effective July 1, 2006, in (1), substituted “the surviving parent remains the sole natural guardian even if he or she” for “the natural guardianship shall pass to the surviving parent, and the right shall continue even though the surviving parent” in the second sentence and made minor stylistic changes; substituted “Natural” for “The natural guardian or” at the beginning of (2); substituted “amounts received, in the aggregate, do” for “amount involved in any instance does” in the last undesignated paragraph in (2); in (3), inserted “for the benefit of the ward” and substituted “specified” for “provided for” in the first sentence and added the last sentence; and deleted former (4).
The 2010 amendment added (3); redesignated former (3) as (4); and substituted “this section are” for “subsection (2) shall be” in the first sentence of (4).
NOTE.–
Created from former s. 744.13.
FLORIDA STATUTES REFERENCES
Chapter 549. Automobile Race Meets, F.S. § 549.09. Motorsport nonspectator liability release.
Chapter 739. Florida Uniform Disclaimer of Property Interests Act, F.S. § 739.104. Power to disclaim; general requirements; when irrevocable.
Chapter 744. Guardianship, F.S. § 744.387. Settlement of claims.
FLORIDA ADMINISTRATIVE CODE REFERENCES
Chapter 19-11 Procedures for the Public Employee Optional Retirement Program, F.A.C. 19-11.003 Distributions from Frs Investment Plan Accounts.
1. Judgment against a mother in her daughter’s claim against a boutique alleging negligent ear piercing was improper; an indemnification agreement signed by the mother violated public policy. Fla. Stat. § 744.301(3) did not include releasing the commercial activity provider from liability for its own negligence. Claire’s Boutiques, Inc. v. Locastro, 2011 Fla. App. LEXIS 6662 (Fla. 4th DCA May 11, 2011).
2. Despite a father’s claim that Georgia was the home state of his child born out of wedlock for purposes of custody under Fla. Stat. § 61.514 of the Uniform Child Custody Jurisdiction Act, a Florida circuit court had jurisdiction to enter an emergency child pick-up order ex-parte because: (1) the child’s mother was a Florida resident when the child was born, the child was born in Florida, and the mother, after living in Georgia for a time, returned to live in Florida; (2) the order simply enforced the mother’s presumptive rights under Fla. Stat. § 744.301(1) until a court determined otherwise and was not a determination as to the father’s ultimate custody rights; and (3) the emergency order was not inconsistent with O.C.G.A. § 19-2-4(a), O.C.G.A. § 19-7-22(a) and (c), and O.C.G.A. § 19-7-25. Perez v. Giledes, 912 So. 2d 32, 2005 Fla. App. LEXIS 13310 (Fla. 4th DCA 2005).
3. When a parent is awarded custody of a child following a dissolution of marriage to the other parent, Fla. Stat. § 744.301(1) does not automatically extinguish the rights of a noncustodial parent as natural guardian of his child; guardianship is dependent on the custody of the child and if the custodial parent dies, the natural guardianship passes to the surviving parent. Lusker v. Guardianship of Lusker, 434 So. 2d 951, 1983 Fla. App. LEXIS 19487 (Fla. 2nd DCA 1983).
4. Trial court properly dismissed the information charging defendant with interference with custody in violation of Fla. Stat. § 787.03 where an order from another state had relinquished custody of the children to defendant and the mother. Furthermore, the court reversed the trial court’s declaration that Fla. Stat. § 744.301(1) was unconstitutional because resolution of the case did not require such a declaration. State v. Earl, 649 So. 2d 297, 1995 Fla. App. LEXIS 307 (Fla. 5th DCA 1995).
5. Pursuant to Fla. Stat. § 744.301(1) a mother, the non-custodial parent, had a right to custody of her child upon the death of the father, the custodial parent, where the father obtained custody of the 10 month old child when the parents divorced, the father moved with his child and new wife to another county three years after the divorce and actively thwarted the mother’s attempts to visit her child so that the mother was unable to see her child for seven years, and the father’s widow, who sought custody of the child upon the father’s death, was unable to prove by clear and convincing evidence that the mother was unfit. Webb v. Webb, 546 So. 2d 1062, 1989 Fla. App. LEXIS 2951 (Fla. 3rd DCA 1989), review denied by 553 So. 2d 1168, 1989 Fla. LEXIS 1234 (Fla. 1989).
6. Mere fact that a father had enforceable rights and obligations to his child born out of wedlock by virtue of his acknowledgement of paternity did not equate to his having a right to temporary custody superior to the mother’s prior to a court declaration to that effect. Perez v. Giledes, 912 So. 2d 32, 2005 Fla. App. LEXIS 13310 (Fla. 4th DCA 2005).
7. Trial court properly dismissed the information charging defendant with interference with custody in violation of Fla. Stat. § 787.03 where an order from another state had relinquished custody of the children to defendant and the mother. Furthermore, the court reversed the trial court’s declaration that Fla. Stat. § 744.301(1) was unconstitutional because resolution of the case did not require such a declaration. State v. Earl, 649 So. 2d 297, 1995 Fla. App. LEXIS 307 (Fla. 5th DCA 1995).
8. When a parent is awarded custody of a child following a dissolution of marriage to the other parent, Fla. Stat. § 744.301(1) does not automatically extinguish the rights of a noncustodial parent as natural guardian of his child; guardianship is dependent on the custody of the child and if the custodial parent dies, the natural guardianship passes to the surviving parent. Lusker v. Guardianship of Lusker, 434 So. 2d 951, 1983 Fla. App. LEXIS 19487 (Fla. 2nd DCA 1983).
9. Trial court properly dismissed the information charging defendant with interference with custody in violation of Fla. Stat. § 787.03 where an order from another state had relinquished custody of the children to defendant and the mother. Furthermore, the court reversed the trial court’s declaration that Fla. Stat. § 744.301(1) was unconstitutional because resolution of the case did not require such a declaration. State v. Earl, 649 So. 2d 297, 1995 Fla. App. LEXIS 307 (Fla. 5th DCA 1995).
10. Where child’s father had executed agreement to pay for child’s required medical care, the hospital was not foreclosed from seeking recovery against the mother under an implied in law contract predicated upon her duty to support her child under Fla. Stat. § 744.301. Variety Children’s Hospital, Inc. v. Vigliotti, 385 So. 2d 1052, 1980 Fla. App. LEXIS 17190 (Fla. 3rd DCA 1980).
11. Admitted father of premature infant girl was a natural guardian of the infant under Fla. Stat. § 744.301(1), despite infant’s illegitimate status; therefore, unwed father was responsible for infant’s necessary emergency medical services. De Costa v. North Broward Hosp. Dist., 497 So. 2d 1282, 1986 Fla. App. LEXIS 10561 (Fla. 4th DCA 1986).
12. Fla. Stat. § 744.301(1) provides that the mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction entered an order stating otherwise. Muniz v. State, 764 So. 2d 729, 2000 Fla. App. LEXIS 8142 (Fla. 2nd DCA 2000).
13. Judgment against a mother in her daughter’s claim against a boutique alleging negligent ear piercing was improper; an indemnification agreement signed by the mother violated public policy. Fla. Stat. § 744.301(3) did not include releasing the commercial activity provider from liability for its own negligence. Claire’s Boutiques, Inc. v. Locastro, 2011 Fla. App. LEXIS 6662 (Fla. 4th DCA May 11, 2011).
1. Florida Civil Procedure, Chapter 9. Amended and Supplementary Pleadings; Pretrial Procedure, § 9-3. Settlements.
2. Florida Estates Practice Guide, Chapter 18 Beneficiaries’ Rights, Part I. Legal Background, § 18.11 Disclaimer of Interest in Property.
3. Florida Estates Practice Guide, Chapter 26 Guardians, Part I. Legal Background, § 26.04 Natural Guardians.
4. Florida Estates Practice Guide, Chapter 26 Guardians, Part I. Legal Background, § 26.43 Litigation Involving Ward.
5. Florida Estates Practice Guide, Chapter 36 Right to Property of an Intestate, Part III. Forms, § 36.204 Petition for Authorization to Execute Qualified Disclaimer.
6. Florida Estates Practice Guide, Appendix PRG Florida Probate and Guardianship Rules, Part I General, Rule 5.040. Notice.
7. Florida Family Law, Division I Marriage, Chapter 3 Cohabitation, B. Rights and Obligations of Cohabitating Partners and their Children, § 3.11 Rights and Obligations Concerning Children.
8. Florida Family Law, Division IV Dissolution of Marriage, Chapter 32 Parental Responsibility and Timesharing, Part I. Legal Background, C. Basis for Determinations of Parental Responsibility and Timesharing, § 32.20 Parents’ Rights and Duties.
9. Florida Family Law, Division IV Dissolution of Marriage, Chapter 32 Parental Responsibility and Timesharing, Part I. Legal Background, D. Effect of Shared Parental Responsibility and Timesharing Determinations, § 32.30 Rights and Duties of Parents.
10. Florida Family Law, Division IV Dissolution of Marriage, Chapter 32 Parental Responsibility and Timesharing, Part II. Practice Guide, B. Preliminary Determinations, § 32.111 Action for Shared Parental Responsibility.
11. Florida Family Law, Division IV Dissolution of Marriage, Chapter 33 Child Support, Part I. Legal Background, § 33.01 Parents’ Duty to Support Child.
12. Florida Family Law, Division IV Dissolution of Marriage, Chapter 33 Child Support, Part II. Practice Guide, B. Preliminary Determinations, § 33.110 Duty to Support Child.
13. Florida Family Law, Division IV Dissolution of Marriage, Chapter 33 Child Support, Part II. Practice Guide, B. Preliminary Determinations, § 33.116 Child Support Order in Paternity Action.
14. Florida Family Law, Division IV Dissolution of Marriage, Chapter 82 Modification of Child Support, Part I. Legal Background, § 82.03 Practice and Procedure.
15. Florida Family Law, Division V Parent-Child Relationships, Chapter 90 Paternity, Part I. Legal Background, A. Paternity and the Parent-Child Relationship, § 90.03 Interests and Status of Natural Father.
16. Florida Family Law, Division V Parent-Child Relationships, Chapter 90 Paternity, Part I. Legal Background, A. Paternity and the Parent-Child Relationship, § 90.06 Father’s Rights to Parental Responsibility and Timesharing.
17. Florida Family Law, Division V Parent-Child Relationships, Chapter 90 Paternity, Part I. Legal Background, B. Establishing Paternity in Paternity Proceeding, § 90.20 Overview of Paternity Proceeding.
18. Florida Family Law, Division V Parent-Child Relationships, Chapter 92 Nonparental Custody, B. Proceedings Involving Nonparental Custody, § 92.10 Type of Proceedings.
19. Florida Family Law, Division VI Other Procedures, Chapter 101 Disabilities of Minority, A. Disabilities of Minority, § 101.03 Other Aspects of Disabilities of Minority.
20. Florida Probate Code Manual, Chapter 1 Intestate Succession, § 1.12 Disclaimer.
21. Florida Probate Code Manual, Chapter 5 Rights of the Decedent’s Children, § 5.13 Disclaimer.
22. Florida Probate Code Manual, Chapter 19 Appointment and Removal of Guardians, § 19.03 Natural Guardians.
23. Florida Probate Code Manual, Chapter 19 Appointment and Removal of Guardians, § 19.09 Guardians Ad Litem.
24. Florida Probate Code Manual, Chapter 20 The Guardian as a Fiduciary, § 20.02 Powers of Natural Guardian.
25. Florida Probate Code Manual, Chapter 20 The Guardian as a Fiduciary, § 20.04 Powers and Duties of Guardian Ad Litem.
26. Florida Probate Code Manual, Chapter 20 The Guardian as a Fiduciary, § 20.11 Bringing and Defending Actions; Settling Claims.
27. Florida Probate Code Manual, Florida Probate Rules, Scope.
28. Florida Real Estate Transactions, Part II. The Deed, Chapter 10. Parties to the Deed, § 10.03 Deeds by Minors.
29. Florida Torts, VIII. Sources of Compensation, Chapter 141 Settlement and Release, I. Legal Background, A. Settlement, 1. Settlement Procedures and Techniques, § 141.06 Statutes Affecting Settlements.
30. Florida Torts, VIII. Sources of Compensation, Chapter 141 Settlement and Release, I. Legal Background, B. Releases, § 141.53 Enforcement and Avoidance.
31. Florida Torts, VIII. Sources of Compensation, Chapter 141 Settlement and Release, I. Legal Background, B. Releases, § 141.54 Release by Natural Guardian for Minor Participating in Activities with Inherent Risks.
32. LexisNexis Practice Guide: Florida Civil Motion Practice, Chapter 13 Settlement, IV. Entering Into a Settlement Agreement, § 13.19 Authority of Third Persons to Enter Settlement Agreements.
33. LexisNexis Practice Guide: Florida Estate & Probate Practice, Chapter 10 Wills: Administrative Provisions, II. Appointing Fiduciaries, § 10.06 Appoint a Guardian.
34. LexisNexis Practice Guide: Florida Personal Injury, What’s New, Scope.
35. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, I. Overview, § 9.02 Master Checklist.
36. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, VI. Determine Express Assumption of Risk, § 9.36 Checklist.
37. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, VI. Determine Express Assumption of Risk, § 9.38 Determine Whether Parent Executed Enforceable Pre-Injury Release.
38. LexisNexis Practice Guide: Florida Personal Injury, Chapter 9 General Liability, VI. Determine Express Assumption of Risk, § 9.38B Establish Immunity for Motorsport Activities.
39. LexisNexis Practice Guide: Florida Pretrial Civil Procedure, Chapter 4 Parties, III. Party Must Have Standing in Action, § 4.08 Standing Generally Requires Party’s Interest in Action.
40. Planning for the Elderly in Florida, Chapter 17 Guardianship, § 17.06 Types of Guardianships.
41. Southeast Transaction Guide, Unit II. Estate Planning, Division 1. Estate Planning and Wills, § 85.03 Legal Background.
42. Southeast Transaction Guide, Unit II. Estate Planning, Division 1. Estate Planning and Wills, § 85.04 Preliminary Determinations.
43. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 340.02 Research Guide.
44. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 340.03 Legal Background.
45. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 341.02 Research Guide.
46. Southeast Transaction Guide, Unit V. Personal Transactions, Division 2. Family Affairs, § 362.22 Right to Custody of Minor Children.
1. Case Comment: Constitutional Law: The Limits of a Patient’s Right to Refuse Medical Treatment, Troy Rillo, April 1994, 46 Fla. L. Rev. 347.
2. Comments: Lagging Behind The Times: Parenthood, Custody, and Gender Bias in the Family Court, Cynthia A. Mcneely, Summer 1998, 25 Fla. St. U.L. Rev. 891.
3. A Cry For Help: An Argument For Abrogation Of the Parent-Child Tort Immunity Doctrine in Child Abuse and Incest Casesa Cry For Help: An Argument For Abrogation Of the Parent-Child Tort Immunity Doctrine in Child Abuse and Incest Cases, Caroline E. Johnson, Fall 1993, 21 Fla. St. U.L. Rev. 617.
4. The Minefield of Liability for Minors: Running Afoul Of Corporate Risk Management in Florida, Jordan A. Dresnick, April 2010, 64 U. Miami L. Rev. 1031.
5. The Minefield of Liability for Minors: Running Afoul of Corporate Risk Management in Florida, Jordan A. Dresnick, April 2010, 64 U. Miami L. Rev. 1031.
6. Quasi-Marital Children: The Common Law’s Failure in Privette and Daniel Calls For Statutory Reform, The Honorable Chris W. Altenbernd, Winter 1999, 26 Fla. St. U.L. Rev. 219.
7. Student Work: Redefining Parenthood: Removing Nostalgia From Third-Party Child Custody and Visitation Decisions in Florida, Sarah E. Kay, Fall 2009, 39 Stetson L. Rev. 317.
8. The Validity of Binding Arbitration Agreements and Children’s Personal Injury Claims in Florida After Shea v. Global Travel Marketing, Inc., Douglas P. Gerber, Fall 2003, 28 Nova L. Rev. 167.
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Alaska statute on Parents right to sign away minors right to sue
Posted: February 17, 2012 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Adventure travel, Alaska, Department of Health, JimMoss, Minor, Parental Rights, Rock climbing, Waiver Leave a commentTITLE 9. CODE OF CIVIL PROCEDURE
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CHAPTER 65. ACTIONS, IMMUNITIES, DEFENSES, AND DUTIES
Go to the Alaska Code Archive Directory
Alaska Stat. § 09.65.292 (2012)
Sec. 09.65.292. Parental waiver of child’s negligence claim against provider of sports or recreational activity
(a) Except as provided in (b) of this section, a parent may, on behalf of the parent’s child, release or waive the child’s prospective claim for negligence against the provider of a sports or recreational activity in which the child participates to the extent that the activities to which the waiver applies are clearly and conspicuously set out in the written waiver and to the extent the waiver is otherwise valid. The release or waiver must be in writing and shall be signed by the child’s parent.
(b) A parent may not release or waive a child’s prospective claim against a provider of a sports or recreational activity for reckless or intentional misconduct.
(c) In this section,
(1) “child” means a minor who is not emancipated;
(2) “parent” means
(A) the child’s natural or adoptive parent;
(B) the child’s guardian or other person appointed by the court to act on behalf of the child;
(C) a representative of the Department of Health and Social Services if the child is in the legal custody of the state;
(D) a person who has a valid power of attorney concerning the child; or
(E) for a child not living with the child’s natural or adoptive parent, the child’s grandparent, aunt, uncle, sister, or brother who has reached the age of majority and with whom the child lives;
(3) “provider” has the meaning given in AS 09.65.290;
(4) “sports or recreational activity” has the meaning given in AS 09.65.290.
HISTORY: (§ 2 ch 67 SLA 2004)
NOTES: CROSS REFERENCES. –For findings and legislative intent statement applicable to the enactment of this section, see § 1, ch. 67, SLA 2004, in the 2004 Temporary and Special Acts.
EDITOR’S NOTES. –Section 3, ch. 67, SLA 2004 provides that this section applies “to acts or omissions that occur on or after September 14, 2004.”
USER NOTE: For more generally applicable notes, see notes under the first section of this article, chapter or title.
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