Wroblewski v. Ohiopyle Trading Post, Inc., 2013 U.S. Dist. LEXIS 119206
Posted: May 26, 2014 Filed under: Legal Case, Paddlesports, Pennsylvania, Release (pre-injury contract not to sue), Whitewater Rafting | Tags: Ohiopyle, Ohiopyle Pennsylvania, Ohiopyle State Park, Ohiopyle Trading Post, Raft Rental, Rafting, Release, Whitewater Rafting, Youghiogheny River Leave a commentWroblewski v. Ohiopyle Trading Post, Inc., 2013 U.S. Dist. LEXIS 119206
Cari J. Wroblewski, Plaintiff, v. Ohiopyle Trading Post, Inc., Defendant.
Civil Action No. 12-0780
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
2013 U.S. Dist. LEXIS 119206
August 22, 2013, Decided
August 22, 2013, Filed
COUNSEL: [*1] For CARI J. WROBLEWSKI, Plaintiff: Emmanuel J. Argentieri, LEAD ATTORNEY, Parker McCay, Mount Laurel, NJ; Gary F. Piserchia, PRO HAC VICE, Parker McCay P.A., Mt. Laurel, NJ.
For OHIOPYLE TRADING POST, INC., Defendant: P. Brennan Hart, LEAD ATTORNEY, Jeanette H. Ho, Pietragallo, Bosick & Gordon, Pittsburgh, PA; John R. Brumberg, Pietragallo Gordon Alfano Bosick & Raspanti, LLP, Pittsburgh, PA.
JUDGES: Mark R. Hornak, United States District Judge.
OPINION BY: Mark R. Hornak
OPINION
Mark R. Hornak, United States District Judge
Cari Wroblewski brings suit against Ohiopyle Trading Post, Inc. (“Ohiopyle”) alleging that she suffered injuries to her knee as a result of Defendant’s negligence and gross negligence when she was thrown from her raft during a white water rafting trip. Ohiopyle argues that it is entitled to summary judgment because (1) Plaintiff signed a Rental Agreement which contained a provision releasing Defendant from liability (“Release”) for the very claims made in this matter and (2) Defendant did not have a duty to protect Plaintiff from being thrown from a raft and striking a rock because these are inherent risks of white water rafting. These matters, having been fully briefed by the parties and oral [*2] argument having been presented, are ripe for disposition. For the reasons which follow, Ohiopyle’s Motion for Summary Judgment is granted.
I. Background
Cari Wroblewski was 37 years old at the time of the incident that forms the basis of this lawsuit. Wroblewski Dep. 7:4-5. She holds an associate’s degree in business as well as a bachelor’s degree in accounting. Id. at 8:18-9:19. In April 2010, two months prior to the trip at issue in this case, Plaintiff went white water rafting on the Salt River in Arizona where she signed a rental agreement with a release and was informed that white water rafting could be dangerous and that she could fall out of the raft. Id. 16:21-17:7; 20:14-21:9.
One of Plaintiff’s friends, Steve Rose, made arrangements to rent equipment from Ohiopyle for a rafting trip on the Youghiogheny River with a group of their friends on June 11, 2010. ECF No. 21 ¶ 2; ECF No. 25 ¶ 2. Joel Means, one of the owners of Ohiopyle, testified in his deposition that the lower section of the Youghiogheny River is considered “the intermediate white water section of the River” and consists of Class I through Class III rapids with borderline Class IV at certain levels. Means Dep. 14:8-15:1. [*3] Plaintiff had been told, not by an Ohiopyle employee but most likely by one of her friends in the group, that the rapids on the river would be mild, level two and three rapids. Wroblewski Dep. 37:6-23. 1
1 “Q: What made you think before then that the rapids were levels two or three?
A: From what I had been told they were supposed to be rather mild rapids.
Q: Who told you that they were rather mild rapids?
A: I don’t recall.
Q: It wasn’t anyone from Ohiopyle Trading Post; was it?
A: No
Q: Was it one of the people in your group that went white water rafting that day?
A: Most likely.” Wroblewski Dep. 37:6-23.
On the morning of June 11, 2010, Means noticed that the river was “up and brown” from rain the night before, and that the water level had risen from 2.5 to 3.98 feet. Means Dep. 19:2-11. When the river’s water level reaches four (4) feet, rafters are required by state regulations to have an experienced guide accompany them on their rafting trip. 2 Id. 60:3-6. Ohiopyle is permitted to provide guided white water rafting tours when the level of the river is between four (4) and ten (10) feet. ECF No. 31. Means testified that the river level being of above average flow could make the rafting trip [*4] more difficult, but that the river is more dangerous at low levels than at high levels. Means Dep. 47:18-22.
2 At oral argument, Plaintiff’s counsel persistently argued not that the river level actually was four (4) feet at the time at issue, but that the Court should treat it as if it were. The Court knows of no record basis to do so.
Plaintiff and her friends traveled to the Youghiogheny River for the white water rafting trip on the morning of June 11, 2010. ECF No. 21 ¶ 1; ECF No. 25 ¶ 1. Upon arriving at the River, Plaintiff went to the bathroom for “quite a while” while the rest of her group started to get their rented equipment. ECF No. 25 at 2, ¶ 1; Wroblewski Dep. 31:8-19. Means informed the rest of Plaintiff’s group that the level of the river was above average flow that day and therefore the river that day was a “real white water river” and not a “float trip.” Means Dep. 16:16-17. Means told Steve Rose that if he and the others in the group no longer wished to rent equipment, Ohiopyle would provide the group with a guided whitewater rafting tour at a discounted rate of $40 per person rather than the usual price of $60 per person (a non-guided rafting trip costs about $20 per [*5] person). Id. 38:9-14; 46:21-47:8. Plaintiffs group declined the offer of a discounted guided rafting trip. Means also instructed his employees that day to “make sure [the group understood] what game they’re about to play,” in reference to the river. Id. 39:11-15. Presumably because she was in the bathroom, Plaintiff never heard from Means his advice as to the conditions of the river or offer of a guided tour. Wroblewski Dep. 32:2-12.
When Plaintiff was finished in the bathroom, she went to get her equipment from Ohiopyle and was “in a rush” because her friends had gotten a head start. ECF No. 25 at 2, ¶¶ 2-3; Wroblewski Dep. 31:8-19. An Ohiopyle employee handed Plaintiff a Rental Agreement and told her that she “needed to sign the form and meet up with [her] group because they were getting their gear.” ECF No. 25 at 2, ¶ 5; Wroblewski Dep. 76:6-21. Plaintiff testified that “[t]hey hurried me along” and she was not given an opportunity to read the Rental Agreement. Wroblewski Dep. 78:7; 76:22-23. She also testified that the Ohiopyle employee “didn’t ask me to read it, they just gave it to me and said please sign this and catch up with your group, they’re already getting their stuff.” [*6] Id. 78:3-13. Plaintiff signed Ohiopyle’s Rental Agreement which included a waiver and release of liability provision (“Release”). ECF No. 19-5. 3
3 Plaintiff was not the last person in her group to sign the Rental Agreement, as her signature is the second to last signature on the Rental Agreement. ECF No. 19-5.
After receiving her rafting equipment, Plaintiff and her group received a safety briefing by an Ohiopyle employee before being sent to the river to embark on their trip. ECF No. 25 ¶ 8; Wroblewski Dep. 32:13-16. In the safety briefing, Plaintiff was warned that white water rafting can be dangerous, and it was possible that participants could fall out of the raft. Wroblewski Dep. 33:6-12.
After rafting through the first set of river rapids, Plaintiff grew concerned that the rapids were not level two or three. Id. 37:6-10. Plaintiff stated that she was concerned that the river was more than she could handle, and that she considered getting off of the river but “[t]here was no place to get off.” Id. 40:5-16. Plaintiff did not express her concerns to any others on the rafting trip. Id. 40:10-1. Near the end of the whitewater rafting trip, Plaintiff was thrown from the raft. ECF No. [*7] 21 ¶ 5; ECF No. 25 ¶ 5; Wroblewski Dep. 41:12-20. According to Plaintiff, she was dragged under water and struck her knee on a rock, sustaining serious injuries. ECF No. 21 ¶ 6; ECF No. 25 ¶ 6; Wroblewski Dep. 41:21-42:1.
Plaintiff filed this action against Defendant in June 2012. ECF No. 1. Defendant moved for summary judgment. ECF Nos. 19, 20, 21. Plaintiff filed her response, ECF Nos. 24, 25, and Defendant filed a reply as well as a supplement. ECF Nos. 26, 27, 31. For the reasons discussed below, Defendant’s Motion for Summary Judgment is granted.
II. Standard
Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The parties must support their position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). In other words, summary judgment may be granted only if [*8] there exists no genuine issue of material fact that would permit a reasonable jury to find for the non-moving party. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
In reviewing the evidence, the court draws all reasonable inferences in favor of the non-moving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Huston v. Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir.2009) (citations omitted). It is not the court’s role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48 (1986). An issue is “genuine” if a reasonable jury could possibly hold in the non-movant’s favor with regard to that issue. See id. “Where the record taken as a whole could not lead a reasonable trier [*9] of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587; Huston, 568 F.3d at 104.
III. Discussion
Ohiopyle advances two arguments in support of its summary judgment motion. First, Defendant submits that the Rental Agreement form signed by Plaintiff contained a valid and enforceable release of liability in favor of Defendant, releasing Defendant from liability for the very claims made in this matter. Secondly, Defendant argues that it did not have a duty to protect Plaintiff from being thrown from a raft and striking a rock because these are inherent risks of white water rafting, and this Defendant should not have any liability.
On June 11, 2010, prior to white water rafting, Plaintiff signed a two-page document that contains a release of liability and is titled “RENTAL AGREEMENT” in capital letters at the top of its first page. ECF No. 19-5. The top half of the first page is a form to be filled out with information relating to the primary renter and the white water rafting equipment to be rented. Id.
The bottom half of the first page begins with the header “TERMS AND CONDITIONS,” with thirteen (13) paragraphs listed in three columns [*10] under this header. Id. The actual language releasing Ohiopyle from liability regardless of its own negligence is listed as paragraph nine (9) in this section. Id. The font of the Release language is the same size as the other paragraphs listed under “TERMS AND CONDITIONS” but, unlike the other paragraphs, is written in all capital letters. Id. The exculpatory clause consequently falls on the bottom half of the front side of the first page, in both the left and middle columns and, by itself, makes up approximately half of the language listed under “TERMS AND CONDITIONS.” Id.
Paragraph nine (9) contains the following language:
9. READ CAREFULLY THE FOLLOWING WAIVER AND RELEASE OF LIABILITY: HAVING RECEIVED A SAFETY TALK BY A MEMBER OP LESSOR’S STAFF, AND HAVING READ THE SAFETY PRECAUTIONS AND RECOMMENDATIONS ON THE REVERSE SIDE HEREOF, LESSEE(S) HEREBY ACKNOWLEDGE THAT HE/SHE/THEY FULLY UNDERSTAND(S): (a) THAT OUTDOOR RECREATIONAL ACTIVITIES HAVE INHERENT RISKS, DANGERS, AND HAZARDS, AND THAT SUCH EXISTS IN MY USE OF THE EQUIPMENT ABOVE DESCRIBED AND MY PARTICIPATION IN WHITE WATER RAFTING AND RELATED ACTIVITIES; (b) THAT MY PARTICIPATION IN SUCH ACTIVITIES AND/OR THE USE OF SUCH EQUIPMENT [*11] MAY RESULT IN INJURY OR ILLNESS, INCLUDING, BUT NOT LIMITED TO, BODILY INJURY, DISEASE, STRAINS, FRACTURES, PARTIAL AND OR TOTAL PARALYSIS, DEATH, OR OTHER AILMENTS THAT COULD CAUSE SERIOUS DISABILITY; (c) THAT SAID RISKS AND DANGERS MAY BE CAUSED BY (i) THE NEGLIGENCE OF THE OWNERS, EMPLOYEES, OFFICERS, OR AGENTS OF LESSOR, (ii) THE NEGLIGENCE OF PARTICIPANTS, (iii) THE NEGLIGENCE OF OTHERS, (iv) ACCIDENTS, (v) BREACHES OF CONTRACT, AND (vi) THE FORCES OF NATURE OR OTHER CAUSES; (d) THAT RISKS AND DANGERS MAY ARISE FROM FORESEEABLE OR UNFORESEEABLE CAUSES, INCLUDING, BUT NOT LIMITED TO, GUIDE DECISION MAKING, INCLUDING THAT A GUIDE MAY MISJUDGE TERRAIN, WEATHER, TRAIL OR RIVER ROUTE LOCATION; WATER LEVEL; FALLING OUT OF OR DROWNING WHILE IN A RAFT, CANOE, OR KAYAK; AND SUCH OTHER RISKS, HAZARDS. AND DANGERS THAT ARE INTEGRAL TO RECREATIONAL ACTIVITIES THAT TAKE PLACE IN A WILDERNESS, OUTDOOR OR RECREATIONAL ENVIRONMENT; AND (e) THAT BY MY PARTICIPATION IN THESE ACTIVITIES AND/OR USE OF THE EQUIPMENT ABOVE DESCRIBED, I HEREBY ASSUME ALL RISKS, DANGERS, AND RESPONSIBILITY FOR ANY LOSSES AND/OR DANGERS, WHETHER CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OR OTHER CONDUCT OF THE OWNERS, [*12] AGENTS, OR EMPLOYEES OF LESSOR OR ANY OTHER PERSON.
AND FURTHER, ON BEHALF OF MY PERSONAL REPRESENTATIVES, SUCCESSORS, HEIRS, AND ASSIGNS, I DO HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND, AND INDEMNIFY LESSOR AND ITS OWNERS, AGENTS, OFFICERS, AND EMPLOYEES FROM ANY AND ALL CLAIMS, ACTIONS, OR LOSSES FOR BODILY INJURY, PROPERTY DAMAGE, WRONGFUL DEATH, LOSS OF SERVICES, OR OTHERWISE WHICH MAY ARISE OUT OF MY USE OF THE EQUIPMENT ABOVE DESCRIBED, OR MY PARTICIPATION IN ANY ACTIVITIES INVOLVING SAID EQUIPMENT. I SPECIFICALLY UNDERSTAND THAT I AM RELEASING, DISCHARGING, AND WAIVING ANY CLAIMS OR ACTIONS THAT I MAY HAVE PRESENTLY OR IN THE FUTURE FOR THE NEGLIGENT ACTS OR OTHER CONDUCT BY THE OWNERS, AGENTS, OFFICERS, OR EMPLOYEES OF LESSOR.
I HAVE READ THE ABOVE WAIVER AND RELEASE, AND, BY SIGNING THIS RENTAL AGREEMENT, AGREE THAT IT IS MY INTENTION TO EXEMPT AND RELIEVE LESSOR AND ITS OWNERS, AGENTS, OFFICERS, AND EMPLOYEES FROM LIABILITY FOR PERSONAL INJURY, PROPERTY DAMAGE, OR WRONGFUL DEATH CAUSED BY NEGLIGENCE OR ANY OTHER CAUSE.
Id.
At the end of the “TERMS AND CONDITIONS” section, at the beginning of the right column, is the following language:
IN WITNESS [*13] WEREOF, and intending to be legally bound hereby, the undersigned Lessee(s) hereby certify that he/she/they have read and understood the terms and conditions of this Rental Agreement, and has/have affixed his/her/their hand(s) and seal(s) hereto on the dated indicated.
Id. Directly underneath this language, and in the column next to the exculpatory clause, multiple lines were provided where Plaintiff and the members of her party signed their names. Id. Plaintiff’s signature is the second to last signature listed on the form. Id.
The second page of the Rental Agreement has two sections. Id. The first section includes the header “SAFETY PRECAUTIONS” and the second section is titled “RECOMMENDATIONS.” Id. Both sections list a number of precautions and recommendations for how white water rafters should conduct themselves while on the river. Id.
The Defendant argues that the Release contained in the Rental Agreement is valid and enforceable. ECF Nos. 19, 20, 26. Plaintiff on the other hand asserts that the Release is unenforceable because its language is not sufficiently conspicuous to alert a party that it serves to release Defendant from liability and that Plaintiff did not actually assent [*14] to the terms of the Rental Agreement. ECF No. 24. To support her contentions, Plaintiff points out that the document was titled “Rental Agreement” and therefore does not provide adequate notice to signors that it is a release of liability. Id. at 7-8. Furthermore, the exculpatory language is placed at the bottom left of the form and not directly above the signature line, is written in small font, and does not appear until paragraph 9 of the form. Id. Plaintiff also argues that no one specifically informed her that she was entering into a contract that would affect her legal rights, and that she was “rushed along” by Defendant’s employees. Id.
The parties agree that this Court must consider Pennsylvania law and apply it in this case. See Lin v. Spring Mountain Adventures, Inc., 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *3 (E.D. Pa. Dec. 23, 2010). Applying Pennsylvania law, the Pennsylvania Supreme Court explained that:
It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent [*15] to the agreement so that the contract is not one of adhesion. . . . once an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.
Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (Pa. 2010) (citations omitted).
Plaintiff primarily relies on three release of liability cases to support her contention that the Release is in this instance unenforceable: Beck-Hummel v. Ski Shawnee, Inc., 2006 PA Super 159, 902 A.2d 1266 (Pa. Super. Ct. 2006); [*16] Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174 (Pa. 2010), and Lin v. Spring Mountain Adventures, Inc., No. 10-333, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648 (E.D. Pa. Dec. 23, 2010). 4
4 Plaintiff does not argue that the release in this instance is facially invalid.
In Beck-Hummel, the plaintiff brought a negligence claim for injuries she received from colliding with a barrier wall while snow tubing at the defendant’s resort. 2006 PA Super 159, 902 A.2d 1266. There, the release was printed on the backside of a lift ticket that the plaintiff’s husband purchased and had given to plaintiff. Id. at 1267, 1270-71. The release contained hard to read and inconspicuous language, it did not require a signature or acknowledgment, and was printed on the portion of the ticket that would be folded out of sight of the user. Id. at 1269, 1273-1274. The record also revealed the lift ticket was not given to the Plaintiff directly by the operator. The Pennsylvania Superior Court held that plaintiff’s assent to the terms of the disclaimer was not clearly established and therefore it could not hold as a matter of law that the release for snow tubing injuries was enforceable. Id. at 1275.
In Chepkevich, plaintiff skier, who had signed a release [*17] prior to skiing, asked a lift operator to stop a lift so that she and her 6-year-old nephew could board the lift. Although the lift operator agreed to do so, when the lift came behind the plaintiff and her nephew, the operator failed to stop the lift. The skier sued the ski resort for negligence for injuries she received as a result of falling from the ski lift. The release in this case was printed on a single page and titled “RELEASE FROM LIABILITY.” 2 A.3d at 1192. The language releasing liability was in the same font as the rest of the release, included the term “negligence”, and “specifically noted that riding the ski lift is a risky activity.” Id. The plaintiff argued that she did not read the exculpatory language nor did anyone orally inform her that she was entering into such an agreement. Id. at 1180-81. The court held that the release was valid, enforceable, and “clearly encompassed the risk at issue . . . [and] clearly spelled out the parties’ intention to release [defendant] from liability for injuries . . . regardless of any negligence on the part of the [defendant].” Id. at 1195. The court therefore upheld the grant of summary judgment in favor of the defendant. Id.
Finally [*18] in Lin, the plaintiff sued for serious injuries sustained from skiing when she lost control and fell into a snow making machine that was not properly padded. The document containing the release provision was titled “EQUIPMENT RENTAL FORM AND RELEASE FROM LIABILITY.” 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *2. On the front page of the release was a capitalized, blocked section in the center of the page, above the signature line, instructing the reader to “PLEASE READ THE AGREEMENT ON THE BACK OF THIS FORM BEFORE SIGNING. IT RELEASES U.S. FROM CERTAIN LIABILITY.” Id. Directly between the instruction to read the back of the release and the signature line was the following statement: “I, the undersigned, have carefully read and understood the Acceptance of Risk and Liability Release on the back of this paper.” Id. The exculpatory clause was located on the back of the form and stated multiple times that it was a release from liability. 2010 U.S. Dist. LEXIS 136090, [WL] at *2. The court found that even though the plaintiff had not read the release language, that she “was a voluntary signatory to a full-sized contract.” 2010 U.S. Dist. LEXIS 136090, [WL] at *5. The court held that the exculpatory clause was enforceable and granted defendant’s motion for summary judgment. [*19] 2010 U.S. Dist. LEXIS 136090, [WL] at *9.
This case is not analogous to Beck-Hummel, as Plaintiff contends. Unlike Beck-Hummel, Plaintiff “was not a mere recipient of a release printed on a ticket, but was a voluntary signatory to a full-sized contract.” Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *5. Plaintiff signed the Rental Agreement herself, and her signature is immediately preceded by instructions guiding her to read the entirety of the form and confirming that she had done so. Moreover, Plaintiff was provided a full-sized contract in which the Release was set forth on its front side, as opposed to a small unreadable ticket that she did not sign and in which the operative language was written on the reverse side.
Moreover, the language of the Release, construed strictly against Defendant, plainly expresses the intention of the parties to release Defendant from liability for future injury. The paragraph mentions “negligence” five (5) times and that it is a release of liability three (3) times. ECF No. 19-5. 5 Specifically, the first sentence of paragraph 9 asks the signer to carefully read the “WAIVER AND RELEASE OF LIABILITY.” Id.
5 In fact, exculpatory clauses may bar suits based on negligence even where the clause does not specifically [*20] mention the word “negligence” at all. Chepkevich, 2 A.3d at 1193. “It strains common sense to suggest that releases that fail to mention the word ‘negligence’ should consistently be interpreted as barring suits based on negligence claims, while a release that clearly states that suits are barred ‘regardless of negligence’ would not bar such suits.” Id.
Part of Plaintiff’s argument is that she was not personally informed by Ohiopyle of the elevated water level prior to her signing the Rental Agreement. However, the language of the Release explicitly warned of the same things that Defendant’s employees cautioned the rest of Plaintiff’s group. Specially, the Release warns of “bodily injury” from “risks and dangers [that] may arise from foreseeable or unforeseeable causes, including . . . water level” and “falling out of . . . a raft.” Id. Furthermore, the clause stated that by signing the agreement, the signor “assume[s] all risks, dangers, and responsibility for any losses and/or dangers.” Id. In fact, the clause even warns of “total paralysis” and “death.” Id. This paragraph goes on to explain that the signor “specifically understand[s] that I am releasing, discharging, and waiving any [*21] claims or actions that I may have presently or in the future for the negligent acts or other conduct by” the Defendant. Id. Furthermore, “it is my intention to exempt and relieve lessor . . . from liability for personal injury . . . caused by negligence.” Id. It is also important to note that prior to her trip to Ohiopyle, Plaintiff admittedly went white water rafting in Arizona where she signed a rental agreement with a release, and was informed that white water rafting could be dangerous and that she could fall out of the raft. Wroblewski Dep. 16:21-17:7; 20:14-21:9. Moreover, in Ohiopyle’s safety briefing, right before Plaintiff boarded the raft, Plaintiff and her group were warned that white water rafting can be dangerous, and it was possible that she could fall out of the raft. Id. 33:6-12.
The fact that the exculpatory language was contained in the bottom half of the first page, not listed until paragraph 9, and not directly above the signature line does not make it unenforceable, either generally or in this case. While the terms and conditions are in a slightly smaller font than the upper half of the form, they are still clearly readable. Moreover, paragraph 9 is the only paragraph [*22] written entirely in capital letters. Taken as a whole, using a strict (but common sense) interpretation, it is clear the form in question releases the Defendant from liability for injuries such as those sustained by Plaintiff, even if due to Defendant’s own negligence. 6
6 Lahey v. Covington, 964 F. Supp. 1440, 1442 (D. Colo. 1996) is factually similar to this case in that there, the defendant failed to personally inform plaintiff of heightened water level when the plaintiff took a white water rafting trip through defendant’s company. The Arkansas Headwater Recreation Area, a white water rafting regulatory group, recommended against any rafting when the water flow measured 4.0 feet high or more (the same cut-off measurement for rafts without guides at Ohiopyle). The defendant also had a company policy to not take people rafting when the water was four feet or higher. On the day in question, the river measured 3.8 feet but, similar to this case, the defendant did not inform the plaintiff that the water level was “high” that day. Plaintiff signed a release of liability agreement prior to the trip and was injured after being tossed into the river. The court held that the exculpatory portion [*23] of the release agreement was valid and granted defendant’s motion for summary judgment on plaintiff’s negligence claim. Id. at 1446.
Plaintiff contends that summary judgment is also improper because whether she knowingly signed the Rental Agreement and assented to its terms is a question of fact for the jury. ECF No. 24. Plaintiff argues that she did not read the Release and that employees of Defendant did not directly warn or advise her as to the conditions of the river or offer her a guided tour, nor did they orally inform her of what the form stated or ask her to read the form, and that they rushed and “hurried [her] along”, and therefore she did not assent to the terms of the agreement. Id.
Plaintiff voluntarily chose to engage in the sport of white water rafting purely for recreational purposes. Plaintiff signed the Release; she was not compelled, as a legal matter, to sign it, but chose to sign it so that she could go on the white water rafting trip with her group. See Tayar v. Camelback Ski Corp., Inc., 616 Pa. 385, 47 A.3d 1190, 1197 (Pa. 2012) (“[R]ecreational sporting activities may be viewed differently in the context of exculpatory agreements, as each party is free to participate, or [*24] not, in the activity, and, therefore, is free to sign, or not, the release form.”); see also Chepkevich, 607 Pa. 1, 2 A.3d 1174 (release enforceable even though plaintiff had not read agreement); Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648 (same). There is no evidence that plaintiff sought to negotiate the terms of the Release or asked for additional time to read it, and to the extent she was “compelled” it was a compulsion arising solely from her personal desire to meet up with her group.
Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity. Standard Venetian Blind Co. v. Am. Empire Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 (Pa. 1983) (“[I]n the absence of proof of fraud, failure to read [the contract] is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof.”); see also Arce v. U-Pull-It Auto Parts, Inc., No. 06-5593, 2008 U.S. Dist. LEXIS 10202, 2008 WL 375159, at *5-9 (E.D. Pa. Feb. 11, 2008) (written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention. [*25] . . . Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). 7
7 See also In re Greenfield Estate, 14 Pa. 489, 496 (Pa. 1850) (“[i]f a party, who can read . . . will not read a deed put before him for execution; or if, being unable to read, will not demand to have it read or explained to him, he is guilty of supine negligence, which . . . is not the subject of protection, either in equity or at law.”).
This rule has been applied time and again in the context of recreational activities in which a party signed a pre-injury release of liability. For instance, the Pennsylvania Superior Court affirmed an order granting summary judgment in favor of the owner of a racetrack where the plaintiff had signed an agreement releasing all claims against the racetrack before he was injured. Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380 (Pa. Super. Ct. 1990). The Superior Court held that the signed release was enforceable even though plaintiff claimed that he had not read it, did not know that he was signing a release, and did not have time to read the document because of a long line of people behind [*26] him. Id. at 1383 (“His explanation that he did not read it does not, in the absence of fraud or a confidential relationship, extricate him from its operation.”). See also Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *6 (“[i]t is a well established rule under Pennsylvania law that failure to read a contract does not relieve a party of their obligation under such contract that they sign, and such parties will be bound by the agreement without regard to whether the terms were read and fully understood.”); Martinez v. Skirmish, U.S.A., Inc., No. 07-5003, 2009 U.S. Dist. LEXIS 51628, 2009 WL 1676144, *7 (E.D. Pa. June 15, 2009) (release enforceable as to negligence for injury to plaintiff during paintball game, noting that plaintiff was accompanied by friends “who could have explained the Waiver & Release to him, if he had asked them to do so. . . . Consequently, [plaintiff’s] failure to read that document cannot constitute a defense to the enforceability of the Waiver & Release.”); Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169, 1174-75 (E.D. Pa. 1990) (release that plaintiff signed before being injured while racing all-terrain vehicle was enforceable even though plaintiff failed to read it because “[t]o accept plaintiff’s [*27] argument that there is such a duty [on the part of the defendant] to inform in this case would essentially abrogate the law of Pennsylvania regarding plaintiff’s duty to read.”). 8
8 In Doe v. Cultural Care, Inc., No. 10-11426-DJC, 2011 U.S. Dist. LEXIS 28226, 2011 WL 1048624, at *4-5 (D. Mass. Mar. 17, 2011), the court held that a release signed by plaintiff was enforceable even if the defendant had rushed her. There, the court explained that
“[t]he fact that [plaintiff] did not take the time to read the terms and conditions of the Agreement because she felt hurried by [defendant] does not change the analysis. [Plaintiff] does not dispute that she executed the Agreement or that it contains the Release. She disputes that she agreed to the terms and conditions, that the Release discharges Defendants from liability or bars her claims since she had no knowledge of the Release and was rushed into executing the Agreement based on Defendants’ representations.”
Id.
Similar to the cases discussed above, Plaintiff voluntarily participated in the white water rafting trip. “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential [*28] services, but merely governs a voluntary recreational activity.” Chepkevich, 2 A.3d at 1191. Plaintiff could have requested additional time to read the agreement, or she could have chosen to not sign the Release and not go white water rafting. See Martinez, 2009 U.S. Dist. LEXIS 51628, 2009 WL 1676144, at *7 (argument that plaintiff had no choice but to sign release because he had pre-paid for the paintball activity was unavailing for the reason that it was a recreational activity where participation was voluntary). Holding that Defendant had a duty to orally inform Plaintiff of what she was signing, or holding a release unenforceable because Plaintiff failed to read the contract containing a release of liability she signed because she felt rushed, would turn this rule on its head.
The Court considers, as it must, all of the relevant circumstances set out in the record, Lin, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648, at *6, and is unable to agree with Plaintiff that the Rental Agreement constituted (as a matter of law) an insufficient effort on the part of Ohiopyle to inform her of the fact that by signing that Agreement, she was giving up any right she might have to sue for damages arising from injuries caused even by negligence. In five [*29] (5) different places the Release mentions “negligence” and states that is a release of liability in three (3) places. ECF 19-5. Similar to Chepkevich, “[a]lthough the outcome in this case was certainly unfortunate, the risk was not so unexpected, or brought about in so strange a manner, as to justify placing this injury beyond the reach of the plain language of the Release, which specifically noted” that white water rafting is a risky activity in which water levels can increase or decrease and that you can fall out of the raft. Chepkevich, 607 Pa. 1, 2 A.3d 1174, 1194. Furthermore, between her previous white water rafting trip in Arizona and the safety briefing she was admittedly provided by Ohiopyle, Plaintiff was aware that white water rafting was dangerous and that falling out of a raft was an actual danger of the activity. Moreover, Plaintiff’s argument that there is an issue of material fact as to whether she assented to the terms of the agreement because she felt “rushed” by Defendant, is insufficient to deem the agreement unenforceable in light of her duty under Pennsylvania law to read a contract.
The Release, even when construed against Defendant, clearly spelled out the parties’ intention [*30] to release Defendant from liability and encompassed the risk of varying water levels and falling out of the raft. Consequently, the Release meets the enforceability test under Pennsylvania law. Plaintiff brings a claim for negligence. Negligence is explicitly encompassed within the Release, and Defendant’s Motion for Summary Judgment is granted. 9
9 Because the signed Rental Agreement precludes Plaintiff from bringing a claim of negligence against Defendant, the Court need not decide whether the incident at issue in this case was an inherent risk of white water rafting.
IV. Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment is granted. An appropriate Order will issue.
/s/ Mark R. Hornak
Mark R. Hornak
United States District Judge
Dated: August 22, 2013
New IRS rulings or old rules are not problems for youth groups
Posted: May 22, 2014 Filed under: Minors, Youth, Children Leave a commentIn the past, a unit (BSA, GSA, etc.) would go do a project and earn money. The money would be credited to the individuals who worked. New ruling implies that is not OK, but that is not the real facts.
Money (Photo credit: Tax Credits)
The money has always been the units. If the youth who earned the money left the unit, the money stayed with the unit
because the check was written to the unit. The incentive to get kids out to work was the idea that they could reduce their cost of a future event by working today. (Besides it got around underage employment laws……).
The money has always been the unit’s money. It may be credited to different members of the unit in different ways, but it was never earned by the members. (That would make the IRS mad.)
The issue then settles down to how the money is attributed to the individual youth not to rattle the IRS. This may take a little more finesse. However several options can work.
1. Make sure the money is never given to the individual.
2. The unit should write checks out of the account to the activity or the event. (Makes bookkeeping easier because you have one check rather than 30).
3. Round up your bookkeeping. Instead of tracking exact amounts say each youth will get a credit, or a percentage. Don’t keep track of the money for each kid in dollars and cents.
4. Make sure the unit keeps some part of the money for the unit. If a 10 youth work four hours for the unit and the unit receives a $100 check for the work, have the unit credit one credit each to the scouts and keep $60 for the unit.
5. Make sure everyone understand the money is for the unit and if a youth leaves the money stays.
Besides, there needs to be some way to help those that can’t. If you have an older youth who is already working a job to pay for his activities and can’t make the event or a poor one who will never be able to go, some part of the money should be contributed to that person. Most youth organizations are not pure capitalism.
If you want to have the kid’s ear money, then the person or business hiring, you must write a check to each kid who works. There is no incentive to do this because each kid must be 16 (in most states), must receive a 1099 at the yearend (in some cases) and who wants to collect W-2’s from all those kids.
Like everything, this issue was never a problem until some units or organizations took it to zenith degrees earning thousands of dollars for an individual. The companies hiring the units loved it because they got an advertising or donation in exchange for some work with a lot less paperwork.
However, a youth organization is not an employment office or a temporary employment service. The organizations are there to promote their missions and program to the youth.
Remember that and this issue takes on less of an onerous feeling.
By the way, the article is titled wrong. The policy has always been in place; it is just now being talked about.
See New policy prohibits individual Scout fundraising accounts
Disclaimer: Use of any information from this site or any other web site referred to is for general information only and does not represent personal tax advice either express or implied. You are encouraged to seek professional tax advice for personal income tax questions and assistance.
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Article in the Atlantic says being overprotective of kids creates more problems. Kids need risk to learn and grow and deal with risk later in life.
Posted: May 21, 2014 Filed under: Minors, Youth, Children, Playground | Tags: Childhood development, Children, Exploring, Helicopter Parents, Kids, minors, Overprotected, Overprotective, Play, playground, playgrounds, Risk, Risk compensation 3 CommentsSubtitle says it all! “A preoccupation with safety has stripped childhood of independence, risk taking, and discovery—without making it safer. A new kind of playground points to a better solution.”
You must read the article. I won’t try and paraphrase what a great job the author did. Here are some quotes from the article: The Overprotected Kid
It’s hard to absorb how much childhood norms have shifted in just one generation. Actions that would have been considered paranoid in the ’70s—walking third-graders to school, forbidding your kid to play ball in the street, going down the slide with your child in your lap—are now routine.
One very thorough study of “children’s independent mobility,” conducted in urban, suburban, and rural neighborhoods in the U.K., shows that in 1971, 80 percent of third-graders walked to school alone. By 1990, that measure had dropped to 9 percent, and now it’s even lower.
Over the years, the official consumer-product handbook has gone through several revisions; it is now supplemented by a set of technical guidelines for manufacturers. More and more, the standards are set by engineers and technical experts and lawyers, with little meaningful input from “people who know anything about children’s play,” says William Weisz, a design consultant who has sat on several committees overseeing changes to the guidelines.
“Reasonable risks are essential for children’s healthy development,” says Joe Frost, an influential safety crusader.
Children, she concluded, have a sensory need to taste danger and excitement; this doesn’t mean that what they do has to actually be dangerous, only that they feel they are taking a great risk.
And all adults also!
We might accept a few more phobias in our children in exchange for fewer injuries. But the final irony is that our close attention to safety has not in fact made a tremendous difference in the number of accidents children have. According to the National Electronic Injury Surveillance System, which monitors hospital visits, the frequency of emergency-room visits related to playground equipment, including home equipment, in 1980 was 156,000, or one visit per 1,452 Americans. In 2012, it was 271,475, or one per 1,156 Americans.
I love this quote.
“The advent of all these special surfaces for playgrounds has contributed very little, if anything at all, to the safety of children,” he told me. Ball has found some evidence that long-bone injuries, which are far more common than head injuries, are actually increasing.
Is it Risk Homeostasis or is it that kids don’t know or care about surfaces, they just need to have fun!
“There’s a fear” among parents, Roger Hart told me, “an exaggeration of the dangers, a loss of trust” that isn’t clearly explainable.
Wow, very interesting.
If a mother is afraid that her child might be abducted, her ironclad rule should not be Don’t talk to strangers. It should be Don’t talk to your father.
This is simply life. It probably at some point in time was said thousands of times a day. Now hearing it once is enough to be quoted in an article. The conversation is between two kids.
“You might fall in the creek,” said Christian.
“I know,” said Gideon.
For once there is an article about children playing that did not talk about the harm of computers. Why because children who have the opportunity to play don’t want to spend time on computers. Play is more fun. It is more fun to go out and explore than to shoot something on a screen!
Do Something
However what is described in the article just sounds like my life growing up. Getting skinned knees and bruises was called growing up. We learned first aid on ourselves. This worked, this burned and this made a mess and did not help.
Read the Article!
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Jurisdiction and Venue (Forum Selection clauses) are extremely important in your releases. Where the lawsuit will be (where/Venue) and what law will be applied (Jurisdiction) is the sole issue in this case.
Posted: May 19, 2014 Filed under: Adventure Travel, Jurisdiction and Venue (Forum Selection) | Tags: Atlantis, Atlantis Resort, Bahamas, Bermuda, Excursion, Excursion Boat, Forum selection clause, Hotel, Jurisdiction and Venue Clause, Kerzner, Release, Third Party 1 CommentAdvance notice of the jurisdiction and venue issues emailed to the plaintiff saves this resort. Plaintiff was not able to argue they were not told they had to sue in Bermuda. Bermuda does not allow contingency cases, and a Bermuda jury is not as likely to give money to foreigners (Americans) as a Miami jury.
Son v. Kerzner International Resorts, Inc., et al., 2008 U.S. Dist. LEXIS 67482
Date of the Decision: September 5, 2008
Plaintiff: Miyoung Son (“Mrs. Son”) and Youngkeun Son (“Mr. Son”)
Defendant: Kerzner International Resorts, Inc., Kerzner International North America, Inc., Kerzner International Limited, Kerzner International Bahamas Limited, Island Hotel Company Limited, and Paradise Island Limited
Plaintiff Claims: Response to Defendant’s Motion to Dismiss
Defendant Defenses: Motion to Dismiss
Holding: for the defendant
The plaintiff’s booked at trip at the defendant’s resort (Atlantis Resort) in the Bahamas. This was their second trip to this resort. After booking and prior to their arrival, the defendant sent emails stating that the plaintiff’s would have to sign several documents. One of the documents was a release which contained a forum selection clause or venue clauses.
No family members of the plaintiff opened any of the documents attached to the emails, but they did acknowledge receiving the emails.
At the resort during check-in, several documents, including the release were signed by the spouse.
Mr. Son stated that the check-in process lasted approximately two to three minutes, that he was asked to sign several forms, and that he did not read the forms. Mr. Son said that the resort’s front desk staff did not explain the contents of the forms. Mr. Sonfurther stated that he did not intend to sign a forum selection clause, nor was he authorized to sign one on his wife’s behalf. However, Mr. Son did not state that his wife had affirmatively told him not to sign any documents regarding her legal rights.
While taking an excursion “Mrs. Son received severe and extensive injuries as a result of being pulled through the churning propellers of the excursion boat.”
The plaintiff’s filed suit in Federal District Court for the Southern District of Florida. The defendant’s filed a Motion to Dismiss the case based on the forum selection clause the plaintiff’s had signed. Meaning the lawsuit should be dismissed because the lawsuit was filed in the wrong place.
Since the plaintiff files the lawsuit, the place where the plaintiff files the lawsuit is the original forum or venue of the suit. The Burden is then on the defendant to argue the location of the lawsuit is incorrect.
Summary of the case
A forum selection clause or a venue clause is a clause in a contract where the parties agree where any lawsuit will be held. A jurisdiction clause, usually heard in the same breath determines what law will be applied to the contract. For a forum selection clause to be held to be unreasonable, it must fail one of the following tests:
…1.) when the formation of the clause was induced by fraud or overreaching; 2.) when the plaintiff would be deprived of her day in court because of inconvenience or unfairness; 3.) when the chosen law would deprive the plaintiff of a remedy, or 4.) when enforcement of the provisions would contravene public policy.
Public policy, number 4, is not necessarily the same public policy that voids releases.
The plaintiff’s argued that the forum selection clause at issue was void because:
…that the forum selection clause was formed by fraud and overreaching, that Plaintiffs will be deprived of their day in court if they have to sue in the Bahamas, that Bahamian law is fundamentally unfair, and that enforcement of the forum selection clause would contravene public policy.
The court took on each of the arguments of the plaintiff individually and then tackled several arguments not raised by the plaintiff.
Fraud and Overreaching
The plaintiff’s argued the contract was signed because of fraud and over-reaching. The argument was based on the claim that the plaintiff’s did not receive notice of the clause prior to their arrival in the Bahamas so they could cancel the trip “with impunity.” They also argued the short check in time deprived the plaintiffs of the ability to read and comprehend the rights the plaintiff was giving up when he signed the contracts.
The court’s response to this argument was:
A non-negotiated contract containing a forum selection clause may be enforceable, so long as the contract was formed under “reasonable” circumstances. In particular, the clause must be reasonably communicated to the consumer such that the consumer knows that the contract contains terms and conditions which affect the consumer’s legal rights.
[A]bsent a showing of fraud or mental incompetence, a person who signs a contact cannot avoid her obligations under it by showing that she did not read what she signed.
The clause at issue was not hidden, was not disguised in the release; the plaintiff ignored the warning that stated, “read before signing,” all of which was not enough to void the contract. “This willful ignorance cannot be used to invalidate an otherwise binding provision.”
The argument that they did not receive notice was also thrown out by the court. Just because the plaintiff did not read the emails, does not mean the plaintiff did not have the opportunity to see the clause prior to the trip.
The plaintiff then argued that the injured wife did not give the husband the authority to sign away her rights.
Plaintiffs argued at the hearing that Mrs. Son did not sign the forum selection clause, nor did she grant her husband authority to sign away her legal rights. Thus, Plaintiffs claim, the forum selection clause could not apply to Mrs. Son. The Court disagrees. First, Mrs. Son admitted that she granted her husband authority to complete all procedures necessary to check-in to the Atlantis Resort. Thus, Mr. Son had “implied authority” to sign the forum selection clause on Mrs. Son’s behalf, because it was necessary for Mr. Son to sign the clause to complete check-in.
A spouse may sign for another spouse in some states. Additional, one spouse who did not sign taking advantage of the benefits of the contract may affirm the contract. Add to that the fact the plaintiff had signed a nearly identical clause during their prior trip and their argument for fraud and overreaching was denied.
Public Policy
The plaintiff did not present any case law to support the violation of Public Policy claim so the court found it had no merit.
Discouraging Legitimate Claims
The court quickly dismissed this argument. Because the forum selection clause was based where the defendants had their business, therefor, the forum selection clause was related to the dispute. The courts and the law where the accident occurred were legitimate; therefore, the forum selection clause was related to the dispute. Consequently, the court could not find bad faith.
Forum Non Conveniens
“The federal doctrine of forum non conveniens allows the Court to use its inherent power to dismiss an action because of the inconvenience of the plaintiff’s chosen forum.” Under the doctrine of forum non conveniens the court can dismiss a claim when the plaintiff’s chosen forum imposes a heavy burden on the defendant or upon the court and the plaintiff is unable to offer any specific reason of convenience to support this choice.
The decision process to support a forum non conveniens claim is:
First, the Court must consider whether an “adequate alternative forum” exists which has jurisdiction over the case. The Court must then consider whether private interest factors suggest that the Court should disturb the strong presumption in favor of a plaintiff’s choice of forum. If the Court finds that the private interest factors are indeterminate, the Court must then proceed to consider whether considerations of public interest favor a trial in the foreign forum. Dismissal is only warranted if these factors weigh heavily towards trial in the foreign forum.
An adequate alternative forum exists when the defendant is “amenable to process” in the new foreign forum. “The defendant has the burden of proving that the proposed forum is adequate, and the proposed forum has jurisdiction over the claims.” Since the defendants were based in the Bahamas and thus amenable to service of process there the plaintiff must show that they would not receive a fair trial in the Bahamas. They plaintiffs could not do that. The argued they could not afford a trial in the Bahamas since contingency fee agreements were not allowed, however, money is not part of the argument in jurisdiction and venue arguments.
Private Interest Factors
The court also reviewed the private interest factors in the case and how those applied to its decision.
Factors considered to be in a litigant’s private interest include the ease of access to sources of proof, availability of compulsory process for witnesses, cost of obtaining attendance of witnesses, ability to view the premises (if necessary), and “all other practical problems that make trial of a case easy, expeditious and inexpensive.
The court found the majority of the witnesses were located in the Bahamas were the accidents happened. The court also found the vital witnesses were all located in the Bahamas. The Florida court could not necessarily subpoena and compel the non-employee witnesses in the Bahamas to appear in court in the US. Consequently, the defendant would be at risk in defending its case because it could not compel the witnesses needed to defend its case. The witnesses in Maryland and Washington DC of the plaintiffs were for the damages’ phase of the trial and consequently, not vital.
More importantly, the plaintiff could not identify any witnesses who could testify in Florida that could not testify in the Bahamas. The distance was relatively the same to get to either place from Maryland and DC. Only one actual witness had been identified by the plaintiff as a resident of Florida, and that was an agent for the defendant.
The defendant also argued they wanted to bring the real party at interest, the excursion boat company into the trial as a third party defendant. If the excursion boat company had no interest in Florida, the Florida court could not compel the third parties to trial in Florida. The plaintiff would also argue that the defendants were agents of the third parties, and the defendants would be defending claims of agency without the benefit of the third parties to support its claims or defenses.
Public Interest Issues.
The court quoted the US Supreme Court in its analysis of the public policy issues of forum selection.
Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.
A jury in Florida has no interest in hearing or adjudicating an incident that occurred outside of its state or even the US. Bahamian law will govern the dispute because the law of the forum where the accident occurred is controlling. Forcing a Florida judge to interpret and apply Bahamian law is also an inconvenience that the court does not want to support.
Reinstatement of the Suit
The final issue that some courts, including this one reviewed is whether the plaintiffs will be foreclosed from filling suit in the proper forum if this case is dismissed. In this case, the defendant agreed to extend the statute of limitations and allow the plaintiff to file in the Bahamas after the appropriate statute had run.
Consequently, the case was dismissed.
So Now What?
Here, the only defendant the plaintiffs could catch was obviously in Florida so the trial was started in Florida. The defendant’s did not have an employee in Washington DC or Maryland, and the plaintiffs did not argue what is called minimum contacts to force the defendant to litigate in DC or Maryland.
Minimum contacts means the defendant does business in the state where the plaintiff filed the lawsuit and has the necessary minimum contacts to sue in that state. The amount of this contact is different in each state.
However, as here, a forum selection clause or jurisdiction and venue clauses are paramount and supersedes the rules governing the location of trials.
Forum selection clauses or jurisdiction and venue clauses provide immense advantages for recreational businesses.
1. It prevents litigating a release in a state where releases are invalid or void. Courts in Louisiana are going to be hesitant to apply the defense of a release because a release is void in Louisiana.
2. It makes sure the law that is important will be applied to the case. Think about applying Louisiana law to a ski accident in Colorado? Think about someone in Florida trying to understand the inherent risks of skiing as set out in the Colorado Ski Safety Statute.
3. It makes sure the area or community that has an interest in the industry or the business has control over the case. Again, a ski accident in Louisiana where the jury does not care or understand skiing versus suing in Colorado where the jury understands and has an interest in Skiing.
4. It eliminates arguments, time and costs of trying to get a trial back to the place that would serve the interest of justice best.
5. It forces the plaintiff to find legal counsel in a state or area that they may not be familiar. This may eliminate all but major claims.
6. It will force the plaintiff to expand money to prosecute a claim in a foreign (other than their own state) jurisdiction. Some of those funds may not be recoverable even if the plaintiff is successful at trial.
One interesting issue was the “impunity” argument. When you give a guest information after they have booked the trip which may change their opinion of the trip from a legal perspective, such as adding a release or another contract provisions, many states may require you to refund the guest’s money in full based on the release or additional contract terms.
Your release has limited value, if any, in many cases may be worthless, if it does not have a forum selection clauses or jurisdiction and venue clause.
IF YOU DON’T HAVE A FORUM SELECTION/JURISDICTION & VENUE CLAUSE IN YOUR RELEASE, YOUR RELEASE CAN FAIL. Contact Me.
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Son v. Kerzner International Resorts, Inc., et al., 2008 U.S. Dist. LEXIS 67482
Posted: May 19, 2014 Filed under: Adventure Travel, Jurisdiction and Venue (Forum Selection), Legal Case | Tags: Atlantis, Atlantis Resort, Bahamas, Destination Atlantis, Excursion, Excursion Boat, Forum selection clause, Hotel, Jurisdiction and Venue Clause, Kerzner, Kerzner International Limited, Paradise Island, Release, Supreme Court of The Bahamas, Third Party Leave a commentSon v. Kerzner International Resorts, Inc., et al., 2008 U.S. Dist. LEXIS 67482
Miyoung Son and Youngkeun Son, Plaintiffs, v. Kerzner International Resorts, Inc., et al., Defendants.
NO. 07-61171-CIV-MARRA/JOHNSON
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
2008 U.S. Dist. LEXIS 67482
September 5, 2008, Decided
September 5, 2008, Entered
COUNSEL: [*1] For Miyoung Son, Youngkeun Son, Plaintiffs: Alexander Rundlet, Victor Manuel Diaz, Jr., LEAD ATTORNEYS, Podhurst Orseck, P.A., Miami, FL; Katherine Warthen Ezell, Robert C. Josefsberg, LEAD ATTORNEYS, Podhurst Orseck Josefsberg et al, Miami, FL; Gene Locks, Jonathan W. Miller, Locks Law Firm, Philadelphia, PA; Stephen J. Nolan, Stephen J Nolan Chartered, Baltimore, MD.
For Kerzner International Resorts, Inc., a Florida corporation, in its own right, doing business as Paradise Island, doing business as Destination Atlantis, doing business as Atlantis, Kerzner International North America, Inc., a Delaware corporation, in its own right, doing business as Paradise Island, doing business as Atlantis, doing business as Destination Atlantis, Kerzner International Limited, a company of the commonwealth of the Bahamas, in its own right, doing business as Paradise Island, doing business as Atlantis, doing business as Destination Atlantis, Kerzner International Bahamas Limited, a company of the commonwealth of the Bahamas, in its own right, as a subidiary of Kerzner International Limited, doing business as Paradise Island, doing business as Atlantis, doing business as Destination Atlantis, Island [*2] Hotel Company Limited, a company of the commonwealth of the Bahamas, in its own right, as subsidiary of Kerzner International Bahamas Limited, doing business as Paradise Island, doing business as Atlantis, doing business as Destination Atlantis, Paradise Island Limited, a company of the commonwealth of the Bahamas, in its own right, as a subsidiary of Kerzner International Bahamas Limited, doing business as Paradise Island, doing business as Atlantis, doing business as Destination Atlantis, Defendants: Bruce Scott Liebman, Michelle Ioanna Bougdanos, LEAD ATTORNEYS, Akerman Senterfitt & Eidson, Fort Lauderdale, FL.
JUDGES: KENNETH A. MARRA, United States District Judge.
OPINION BY: KENNETH A. MARRA
OPINION
OPINION AND ORDER ON MOTION TO DISMISS
THIS CAUSE comes before the Court on Defendants Kerzner International Resorts, Inc., Kerzner International North America, Inc., Kerzner International Limited, Kerzner International Bahamas Limited, Island Hotel Company Limited, and Paradise Island Limited’s Motion to Dismiss Plaintiffs’ Complaint (DE 15), filed November 12, 2007. The motion is now fully briefed and is ripe for review. The Court held an evidentiary hearing on this matter on June 19, 2008. The Court has carefully [*3] considered the motion and the record and is otherwise fully advised in the premises.
Background
On August 17, 2007, Plaintiffs Miyoung Son (“Mrs. Son”) and Youngkeun Son (“Mr. Son”) ( together, “Plaintiffs”) filed a four-count Complaint (DE 1) against Defendants Kerzner International Resorts, Inc., Kerzner International North America, Inc., Kerzner International Limited, Kerzner International Bahamas Limited, Island Hotel Company Limited, Paradise Island Limited, 1 Nassau Cruses, Limited (“Nassau Cruses”), Robert Brown, Rodger Munroe, and Silvin Brown (together, “Defendants”), asserting claims of negligence and loss of consortium against all Defendants. The facts, as alleged in the Complaint and adduced at the evidentiary hearing, are as follows: Mr. and Mrs. Son, residents of Maryland, purchased a vacation package from the Kerzner Defendants for a four-night stay at the Atlantis Resort in the Commonwealth of the Bahamas in July 2005. (Compl. PP 3, 15.) The vacation was to last from August 17 to August 21, 2005. Plaintiffs were to be accompanied by their two children, Mrs. Son’s sister and brother-in-law, their three children, and a nanny. (Compl. P 15.) While in the Bahamas, Plaintiffs [*4] booked an excursion through Atlantis’s Tour and Excursions Center. (Compl. P 17.) While on the excursion, Mrs. Son received severe and extensive injuries as a result of being pulled through the churning propellers of the excursion boat. (Compl. PP 20-21.)
1 The Court will refer to the moving parties, Kerzner International Resorts, Inc., Kerzner International North America, Inc., Kerzner International Limited, Kerzner International Bahamas Limited, Island Hotel Company Limited, and Paradise Island Limited, collectively as the “Kerzner Defendants.”
Findings of Fact
1. After booking the trip, Plaintiffs received from the Kerzner Defendants a package in the mail containing information about the trip; however, the package did not contain any mention that Plaintiffs would be expected to sign a forum selection clause or choice of law clause upon check-in at the Atlantis Resort. (Pl. Ex. 1; Def. Ex. 5.)
2. On July 24, Mrs. Son received two e-mails from the Kerzner Defendants with additional information about her upcoming trip – one regarding her booking, and one regarding her sister’s family’s booking. (Pl. Ex. 3, 4; Def. Ex. 3, 4.)
3. Mrs. Son testified that she did not open the e-mails prior to [*5] departing for the Bahamas because she did not recognize the sender. Mrs. Son also testified that she did not open the e-mails and read the attached documents until very recently, but she admitted that she did receive the e-mails prior to her trip.
4. One of the documents contained in each e-mail that Mrs. Son received after making the booking stated as follows:
During guest registration at Atlantis, Paradise Island you will be asked to sign a form agreeing to the following terms related to any claims you may have as a result of your stay at the resort: I agree that any claim I may have against Atlantis, Ocean Club, or any of their officers, directors, employees or related or affiliated companies, including, without limitation, Kerzner International Limited, Kerzner International Bahamas Limited, Island Hotel Company Limited, Paradise Enterprises Limited, Paradise Island Limited and Paradise Beach Inn Limited resulting from any events occurring in The Bahamas shall be governed by and construed in accordance with the laws of the Commonwealth of The Bahamas, and further, irrevocably agree to the Supreme Court of The Bahamas as the exclusive venue for any such proceedings whatsoever. The [*6] foregoing shall apply to all persons accompanying me, and I represent that I have the authority to sign this document on their behalf.
(Pl. Ex. 3, 4; Def. Ex. 3, 4.)
5. Mrs. Son testified that she did not know she would have to sign such a document upon arrival.
6. Upon arrival, Mr. Son completed the check-in process. (Pl. Ex. 2; Def. Ex. 1.) Mr. Son signed a form on his own behalf “and the members of [his] family group or others listed below” (including Mrs. Son) which contained the following language:
I agree that any claims I may have against the Resort Parties resulting from any events occurring in The Bahamas shall be governed by and construed in accordance with the laws of the Commonwealth of The Bahamas, and further, irrevocably agree to the Supreme Court of the Bahamas as the exclusive venue for any such proceedings whatsoever.
(Pl. Ex. 2; Def. Ex. 1.) Mr. Son stated that the check-in process lasted approximately two to three minutes, that he was asked to sign several forms, and that he did not read the forms. Mr. Son said that the resort’s front desk staff did not explain the contents of the forms. Mr. Son further stated that he did not intend to sign a forum selection clause, [*7] nor was he authorized to sign one on his wife’s behalf. However, Mr. Son did not state that his wife had affirmatively told him not to sign any documents regarding her legal rights.
7. Mrs. Son testified that she did not authorize her husband to sign a forum selection clause, but Mrs. Son also did not state that she told her husband he was not to sign any legal documents on her behalf. Mrs. Son testified that she did authorize her husband to complete all necessary check in procedures on her behalf.
8. Plaintiffs previously visited the Atlantis Resort in December 2001. When completing check-in formalities in 2001, Mr. Son signed a form that states as follows:
I agree that any claim I may have against Atlantis, Ocean Club, or any of their officers, directors, employees or related or affiliated companies, including, without limitation, Sun International Hotels Limited, Sun International Bahamas Limited, Island Hotel Company Limited, Paradise Enterprises Limited, Paradise Island Limited and Paradise Beach Inn Limited resulting from any events occurring in The Bahamas shall be governed by and construed in accordance with the laws of the Commonwealth of The Bahamas, and further, irrevocably [*8] agree to the Supreme Court of The Bahamas as the exclusive venue for any such proceedings whatsoever. The foregoing shall apply to all persons accompanying me and I represent that I have the authority to sign this document on their behalf.
(DE 54.)
Standard of Review
In the Eleventh Circuit, a motion to dismiss on the basis of a forum selection clause is brought pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure as a motion to dismiss for improper venue. Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285, 1290 (11th Cir. 1998). Forum selection clauses are “prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances.” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972). The Court may make any findings of fact necessary to resolve a motion to dismiss for improper venue, so long as the resolution of factual disputes is not an adjudication on the merits of a case. Bryant v. Rich, 530 F.3d 1368, 2008 WL 2469405 at *5 (11th Cir. 2008). Determining the reasonableness of a forum selection clause is a fact-specific inquiry to be made on a case-by-case basis. [*9] Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 864 (1st Cir. 1983).
Because the Court is sitting in diversity, Florida substantive law applies. See, e.g., Admiral Ins. Co. v. Feit Management Co., 321 F.3d 1326, 1328 (11th Cir. 2003) (“Sitting in diversity, we apply the substantive law of the forum state unless federal constitutional or statutory law compels a contrary result.”).
Discussion
A forum selection clause will be held “unreasonable” in only four circumstances: 1.) when the formation of the clause was induced by fraud or overreaching; 2.) when the plaintiff would be deprived of her day in court because of inconvenience or unfairness; 3.) when the chosen law would deprive the plaintiff of a remedy, or 4.) when enforcement of the provisions would contravene public policy. Lipcon, 148 F.3d at 1292; see also Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 594-95, 111 S. Ct. 1522, 113 L. Ed. 2d 622 (1988). Some courts have also made prior notice of the clause an element to consider in determining reasonableness. See, e.g., Sun Trust Bank v. Sun International Hotels, Ltd., 184 F. Supp. 2d 1246, 1258 (S.D. Fla. 2001); Corna v. American Hawaii Cruises, Inc., 794 F. Supp. 1005, 1012 (D. Haw. 1992). 2 Here, Plaintiffs [*10] argue that the forum selection clause was formed by fraud and overreaching, that Plaintiffs will be deprived of their day in court if they have to sue in the Bahamas, that Bahamian law is fundamentally unfair, and that enforcement of the forum selection clause would contravene public policy. The Court will address each of these arguments in turn.
2 In Shute, the Supreme Court did not state that lack of notice of the forum selection clause was grounds for finding that the clause was unreasonable. In fact, the Court stated that it would not “address the question of whether respondents had sufficient notice of the forum clause before entering the contract for passage” because the respondents had conceded that they had sufficient notice. Shute, 499 U.S. at 590. However, the Supreme Court found notice relevant insofar as the Court found a party’s right to reject the contract “with impunity” essential to its enforceability. Id. at 595. Thus, notice is a relevant inquiry when considering a forum selection clause to determine whether the party could walk away from the contract with a minimal penalty. In Corna, for instance, the Court found that two to three days notice of the forum selection [*11] clause insufficient, because the plaintiffs would have forfeited the entire ticket price for their trip if they had canceled the trip upon first learning of the forum selection clause. Corna, 794 F. Supp. at 1011-1012; cf. Elliott v. Carnival Cruise Lines, 231 F. Supp. 2d 555, 561 (S.D. Tex. 2002) (enforcing forum selection clause where cancellation at time notice of clause received by passenger would have resulted in refund of only 50% of purchase price).
Fraud and Overreaching
Plaintiffs argue that the formation of the agreement including the forum selection provision was “induced by fraud and overreaching.” (Pl. Resp. 9.) Plaintiffs claim that they “never received . . . any notice of a forum selection clause prior to arriving at the hotel in the Bahamas.” (Id.) Plaintiffs do not argue bad faith on the Kerzner Defendants part, and their sole argument regarding fraud and overreaching relates to notice. Plaintiffs also do not argue that the forum selection clause was hidden on the forms they signed. Instead, they argue that they did not receive notice of the clause prior to their arrival in the Bahamas, so they could not cancel “with impunity.” Further, they argue that the short check-in [*12] time period effectively deprived Mr. Son of the ability to read and comprehend the rights he was surrendering when he signed the document. (See Pl. Resp. 9-10.)
A non-negotiated contract containing a forum selection clause may be enforceable, so long as the contract was formed under “reasonable” circumstances. Shute, 499 U.S. at 593-94. In particular, the clause must be reasonably communicated to the consumer such that the consumer knows that the contract contains terms and conditions which affect the consumer’s legal rights. Shankles, 722 F.2d at 864.
With respect to the time for check-in, a perusal of the “Acknowledgment, Agreement, and Release” form shows that the clause is not hidden in any way. The page contains seven paragraphs regarding limitations on liability, choice of law, and other legal provisions. (Pl. Ex. 2; Def. Ex. 1.) While the forum selection provision is not written in a larger font, in bold font, or italicized, it is still easily readable and is set off in its own paragraph in the middle of the front side of the form. Further, the form is marked at the very top “READ BEFORE SIGNING.” Thus, the Court finds that the form clearly and unmistakably conveys that it contains [*13] terms affecting the consumer’s legal rights. The clause is not hidden among other, non-legal provisions, nor is the clause physically disguised. The fact that Mr. Son chose not to read the form that is clearly marked “read before signing” does not excuse Plaintiffs from their contractual obligation. See, e.g., Coleman v. Prudential Bache Securities, Inc., 802 F.2d 1350, 1352 (11th Cir. 1986) (“[A]bsent a showing of fraud or mental incompetence, a person who signs a contact cannot avoid her obligations under it by showing that she did not read what she signed.”). The check-in process was doubtless hurried, but the Court finds that Mr. Son was not rushed through the process so as to prevent him from taking as much time as he needed or desired to review the document thoroughly. Mr. Son made a conscious choice – he chose to sign the form without reading it in order to speed the check-in process along. This willful ignorance cannot be used to invalidate an otherwise binding provision.
Plaintiffs then argue that they did not receive notice of the forum selection clause prior to their arrival at the Atlantis resort, such that they could not reject the provision “with impunity.” In Sun Trust [*14] Bank, under similar facts, the court concluded that the same forum selection clause disputed in this case was unenforceable because the plaintiffs did not have an “objectively reasonable opportunity to consider and reject” the clause. Sun Trust Bank, 184 F. Supp. 2d at 1261. The court was presented with “undisputed” evidence that the “forum-selection clause was presented to [plaintiff] for the first time upon arrival in the Bahamas.” Id.
Contrary to Plaintiffs assertions, this case is distinct, and Sun Trust Bank is inapplicable. First, Plaintiffs had both visited the Atlantis resort in 2001, and Mr. Son signed a nearly identical forum selection provision upon arriving at the resort in 2001. Having previously signed a nearly identical forum selection provision in 2001, it is reasonable to expect that Plaintiffs would be asked to sign a similar provision on their return visit. In Horberg v. Kerzner Resorts International Ltd., No. 07-20250-CIV-UNGARO, 2007 U.S. Dist. LEXIS 97693, slip op. at 5-6 (S.D. Fla. Aug. 6, 2007), the court enforced the same forum selection clause disputed in this case on the basis that the plaintiffs had visited the Atlantis resort on previous occasions and thus “had a reasonable opportunity [*15] to consider and reject the forum selection clause.”
Also making this case distinct from Sun Trust Bank is the fact that the Kerzner Defendants provided Plaintiffs with prior notice that they would be asked to sign a form requiring all suits brought against the Kerzner Defendants be brought in the Bahamas. Plaintiffs concede that Mrs. Son received two e-mails on July 24, 2005, that contained an attachment titled “Terms and Conditions.” (Pl. Ex. 4, 5.) In the section labeled “Atlantis Registration,” the attachment explained that all guests would be asked to sign a forum selection clause upon check-in.
Mrs. Son testified that she did not remember receiving these e-mails from the Kerzner Defendants, and Mrs. Son also testified that she did not open e-mails from unrecognized senders because of the threat of computer viruses. Mrs. Son further testified that she did not expect to receive e-mails regarding her Atlantis resort trip. However, Mrs. Son received these e-mails the very same day that she booked her trip, and both e-mails had “Travel Plan” in the subject line with a reservation number. Logic would dictate that Mrs. Son must have provided her e-mail address over the phone when making [*16] the reservation since she received e-mails regarding her booking shortly thereafter. Thus, while the Court finds Mrs. Son’s testimony credible, the Court does not agree that her decision not to read the e-mails was reasonable. 3 Mrs. Son chose not to read the e-mails, but the e-mails provided sufficient notice of the forum selection and choice of law clauses her family would be required to sign upon arrival at the Atlantis Resort.
3 At the hearing, Plaintiffs’ counsel consistently averred that Plaintiffs did not have a “duty” to open the e-mails they received regarding their trip but that Plaintiff had a “duty” to open packages sent to her through the U.S. Mail. However, the Court fails to see how Plaintiffs make this distinction. Plaintiffs have not identified a specific duty that Plaintiffs might have had to open regular mail versus e-mail. Plaintiffs’ could have decided not to open the package received through the U.S. Mail as freely as they decided not to open the e-mails. The Court cannot conceive of a “duty” to open a letter any more than it can conceive of a “duty” to open an e-mail. Plaintiffs’ bear the risk that they will lose valuable information or documentation when they [*17] choose not to receive a letter, e-mail, or any other form of communication. Plaintiffs weighed the risk of losing vital information against the risk of receiving a computer virus when deciding not to open the e-mails, just as Plaintiffs weighed the risk of losing vital information against the risk of receiving anthrax powder when deciding to open the mailed package. The Kerzner Defendants’ should not be held liable because Plaintiffs’ risk calculus led them not to open the documentation.
Finally, Plaintiffs argued at the hearing that Mrs. Son did not sign the forum selection clause, nor did she grant her husband authority to sign away her legal rights. Thus, Plaintiffs claim, the forum selection clause could not apply to Mrs. Son. The Court disagrees. First, Mrs. Son admitted that she granted her husband authority to complete all procedures necessary to check-in to the Atlantis Resort. Thus, Mr. Son had “implied authority” to sign the forum selection clause on Mrs. Son’s behalf, because it was necessary for Mr. Son to sign the clause to complete check-in. 4 Alternatively, by signing the form which clearly stated he had the authority to bind everyone in his party, Mr. Son acted with “apparent [*18] authority,” because the Atlantis Resort reasonably believed his representations that he had the authority to bind Mrs. Son. 5
4 The Restatement (Third) of Agency defines “implied authority” as either (1) the authority “to do what is necessary, usual, and proper to accomplish or perform an agent’s express responsibilities or (2) to act in a manner which an agent believes the principal wishes the agent to act based on the agent’s reasonable interpretation of the principal’s manifestation in light of the principal’s objectives and other facts known to the agent.” Restatement (Third) of Agency § 2.01 cmnt. b (2006).
5 “Apparent authority is the power held by an agent or other actor to affect a principal’s legal relations with third parties when a third party reasonably believes the actor has the authority to act on behalf of the princpal and that belief is traceable to the principal’s manifestations.” Restatement (Third) of Agency § 2.03.
The parties did not brief the issue of agency, but the parties proceeded to argue the issue of agency at the hearing. In Florida, the rule of lex loci contractus determines the law to be applied when determining an issue of contract law. See Sturiano v. Brooks, 523 So. 2d 1126 (Fla. 1988). [*19] Because the contract was executed in the Bahamas, Bahamian law would apply to whether Mr. Son was acting as Mrs. Son’s agent and whether she was bound by Mr. Son’s signature. The parties, however, have not provided any evidence of (nor can the Court determine on its own initiative) the scope of Bahamian agency law. The Court has turned to the Restatement (Third) of Agency as a general guideline, not as an authoritative source on the law of the Commonwealth of the Bahamas.
Moreover, a party need not sign a forum selection clause to be bound by the terms of the clause; a party can be bound if it is “closely related” to the dispute. Hugel v. Corporation of Lloyd’s, 999 F.2d 206, 209-10 (7th Cir. 1993); see also E.I. DuPont de Nemours and Co. v. Rhone Poulenc Fiber and Resin Intermediaries, S.A.S., 269 F.3d 187, 195 (3d Cir. 2001); Manetti-Farrow, Inc. v. Gucci America, Inc., 858 F.2d 509, 514 n.5 (9th Cir. 1988). Mrs. Son is at the center of this dispute (indeed, the parties are arguing over who is responsible for her injuries) and is thus “closely related.” Therefore, she can be bound to the terms of the clause whether she actually signed it or not. Again, the Court has explained that [*20] she received all the notice to which she was entitled under the law, and she should have been aware that agreeing to a forum selection clause was part of the check-in process.
In sum, the Kerzner Defendants’ burden in this situation was only to provide reasonable notice to Plaintiffs, which the Kerzner Defendants achieved. Once the Kerzner Defendants sent Plaintiffs notice of the forum selection clause, it was Plaintiffs’ decision as to whether they read the notification. The Court rejects Plaintiffs’ argument that Defendants somehow needed to do more. Plaintiffs chose not to read the notice, and the consequences are theirs to bear. Thus, the forum selection clause will not be invalidated on this ground.
Deprivation of Day in Court and Fundamental Unfairness
Plaintiffs argue that they will be “effectively deprived of their day in court” because of the “inconvenience” of litigating in the Bahamas and because of the fundamental unfairness of Bahamian law. (Pl. Resp. 10.) First, Plaintiffs claim that Mrs. Son cannot return to the Bahamas because of the “great mental and emotional anguish” she would suffer if she was forced to return there. Mrs. Son testified that she did not want to return [*21] to the Bahamas; however, she admitted that her doctors have never stated that she is physically or mentally incapable of returning. Instead, her prohibition on travel to the Bahamas appears self-imposed and, as a result, not a persuasive justification to invalidate the forum selection clause.
Likewise, Plaintiffs claim they are “financially unable to pursue litigation in the Bahamas, where contingent fees are prohibited.” (Pl. Resp. 11.) This argument is also unavailing. The Court cannot give substantial weight to fact that contingency fee arrangements are not available in foreign forums. Magnin v. Teledyne Continental Motors, 91 F.3d 1424, 1430 (11th Cir. 1996). As the Fifth Circuit Court of Appeals has stated, “If the lack of a contingent-fee system were held determinative, then a case could almost never be dismissed because contingency fees are not allowed in most foreign forums.” Coakes v. Arabian American Oil Co., 831 F.2d 572, 576 (5th Cir. 1987) (discussing contingency fee arrangements as part of forum non conveniens analysis).
Public Policy
Plaintiffs argue that “enforcement of the provisions of the Release would contravene a strong public policy, because enforcement of the forum [*22] selection clause would imply enforcement of the entire Release.” (Pl. Resp. 11.) Plaintiffs, however, have provided no cases to suggest that enforcement of the forum selection clause by this Court would compel a Bahamian court to enforce the release of liability. The Court thus finds this argument lacks merit.
Discouraging Legitimate Claims
Finally, Plaintiffs argue that Defendants “set the Bahamas as the forum ‘as a means of discouraging [hotel guests] from pursuing legitimate claims.'” (Pl. Resp. 12.) Plaintiffs point to a case in which the Kerzner Defendants chose to litigate in New Jersey state court, Paradise Enterprises Ltd. v. Sapir, 356 N.J. Super. 96, 811 A.2d 516 (N.J. Super. Ct. 2002), to show that the Kerzner Defendants can indeed litigate in U.S. forums. Plaintiffs claim that the fact that the Kerzner Defendants will litigate in New Jersey when they so choose shows bad faith selecting the Bahamas to litigate these claims. The Court also finds this argument unpersuasive. As the Supreme Court held in Shute, where the defendant selected a Florida forum, “[a]ny suggestion of such a bad-faith motive is belied by two facts: Petitioner has its principal place of business in Florida, and many of its [*23] cruises depart from and return to Florida ports.” Here, the Kerzner Defendants, who run a resort in the Bahamas, elected a Bahamian forum to litigate disputes arising out of visitors to the Bahamian resort who are injured while staying in the Bahamas. Had Defendants selected a trial court in Thailand to settle tort claims arising out of resort stays in the Bahamas, one could make a colorable argument that the selected forum was unrelated to the dispute and selected to discourage individuals from bringing legitimate claims. Where the defendant operates a business in the selected forum and the actions that would give rise to litigation would also occur in the selected forum, the Court cannot conclude that the defendant acted in bad faith.
Accordingly, the Court finds that the forum selection clause is enforceable, and this case shall be dismissed subject to Plaintiff’s ability to refile the action in the Supreme Court of the Bahamas.
Forum Non Conveniens
Alternatively, the Court believes that this action should be dismissed on the basis of the doctrine of forum non conveniens. The federal doctrine of forum non conveniens allows the Court to use its inherent power to dismiss an action because [*24] of the inconvenience of the plaintiff’s chosen forum. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-07, 67 S. Ct. 839, 91 L. Ed. 1055 (1947). Under the doctrine, dismissal is “appropriate where trial in the plaintiff’s chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice.” Piper Aircraft v. Reyno, 454 U.S. 235, 249, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981).
Analytically, the Court’s analysis falls into three stages. First, the Court must consider whether an “adequate alternative forum” exists which has jurisdiction over the case. La Seguridad v. Transytur Line, 707 F.2d 1304, 1307 (11th Cir. 1983). The Court must then consider whether private interest factors suggest that the Court should disturb the strong presumption in favor of a plaintiff’s choice of forum. Id. If the Court finds that the private interest factors are indeterminate, the Court must then proceed to consider whether considerations of public interest favor a trial in the foreign forum. Id. Dismissal is only warranted if these factors weigh heavily towards trial in the foreign forum. Piper Aircraft, 454 U.S. at 249. This strong presumption in favor of the plaintiff’s choice [*25] of forum is strongest when the plaintiff is a citizen or resident of the U.S. SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1102 (11th Cir. 2004).
Adequate Alternative Forum
An adequate alternative forum exists when the defendant is “amenable to process” in the foreign forum. Piper Aircraft, 454 U.S. at 254 n.22. The defendant bears the burden of establishing that its proposed forum is adequate and has jurisdiction over the case. La Seguridad, 707 F.2d at 1307. Here, all but two of the Defendants in this action are Bahamian citizens or corporations. (Compl. PP 4-14.) Defendants claim that they are “undoubtedly amenable to service of process in the Bahamas.” (Def. Mot. 15.) Likewise, Defendants have presented evidence that the Bahamian legal system recognizes negligence actions like Plaintiffs’ claims in the instant case. (Pyfrom Aff. P 10.) Thus, there is no indication that Bahamian courts would not afford Plaintiffs a remedy for their claims. Moreover, courts are loathe to hold that other forums are inadequate. See Leon v. Millon Air, Inc., 251 F.3d 1305, 1312 (11th Cir. 2001). Plaintiffs have not intimated that Bahamian courts would be inadequate. Thus, [*26] the Court finds that the Supreme Court of the Bahamas is an adequate alternative forum for the instant action.
Private Interest Factors
The Supreme Court has directed district courts to consider the “private interest of the litigant.” Gulf Oil, 330 U.S. at 508. Factors considered to be in a litigant’s private interest include the ease of access to sources of proof, availability of compulsory process for witnesses, cost of obtaining attendance of witnesses, ability to view the premises (if necessary), and “all other practical problems that make trial of a case easy, expeditious and inexpensive.” Id.
The Kerzner Defendants argue that “all of the documents related to Plaintiffs’ allegations in the Complaint are in The Bahamas.” (Def. Mot. 16.) The Kerzner Defendants do not state what documents are in the Bahamas, nor do they argue that such documents could not be brought to Florida in the event that trial was conducted here. Plaintiffs, meanwhile, have noted that they are already in possession of police and medical records from the Bahamas (see Childs Aff.), and such documents could easily be disclosed to Defendants during discovery. This factor weighs in Plaintiffs’ favor.
Notwithstanding [*27] the relative ease of access to documentary evidence, the ease of access to witnesses and the ability to compel attendance at trial is not as clear. Plaintiffs have only identified one Florida citizen witness – the corporate representative of Defendant Kerzner International Resorts, Inc. The remaining witnesses Plaintiffs seek to call are largely medical professionals from Maryland or Washington, D.C. (See Pl. Resp. 14-16.) Defendants, on the contrary, note that many prospective witnesses are located in the Bahamas: the staff at Doctors Hospital in Nassau, Bahamas, who initially treated Mrs. Son; representatives of Defendant Nassau Cruises, Ltd.; Defendants Robert Brown, Rodger Munroe, and Silvin Brown; as well as employees of the Atlantis Resort. (Def. Mot. 16.)
The Court recognizes that in Ward v. Kerzner International Hotels Ltd., Judge Jordan held that the fact that several witnesses resided in the Bahamas was insufficient to overcome the strong presumption in favor of the plaintiff. No. 03-23087-CIV, 2005 U.S. Dist. LEXIS 11081, 2005 WL 2456191 at *3 (S.D. Fla. Mar. 30, 2005). In that case, like in Sun Trust Bank, a majority of the Bahamian witnesses were employees of the defendants who, defendants claimed, [*28] would appear voluntarily. Id.; see also Sun Trust Bank, 184 F. Supp. 2d at 1263-64. In Ward, only two Bahamian witnesses were not employed by the defendants. Ward, 2005 U.S. Dist. LEXIS 11081, 2005 WL 2456191 at *3. By contrast, in this case, most of the relevant witnesses are not employees of the Kerzner Defendants. Some of the prospective witnesses are Defendants in this action, but this Court cannot effectively subpoena these foreign nationals residing in the Bahamas and compel them to appear before this Court. In fact, these Bahamian witnesses are the very witnesses that will describe the events leading to Mrs. Son’s injuries (i.e., the liability phase). The U.S. witnesses, who for the most part are medical professionals, will likely be used for the damages phase of trial. Looking at the quality of the proposed witnesses, rather than absolute numbers of potential witnesses, the Court finds that none of the most vital witnesses needed to resolve the issue of liability reside in Florida, and a substantial number of these witnesses reside in the Bahamas.
The Kerzner Defendants may be able to interview agents of Nassau Cruses, Ltd., or some of the other individual Defendants, but the Kerzner Defendants would be [*29] forced to present testimony at trial in Florida in the form of depositions or letters rogatory. Were this situation limited to a pair of witnesses whose testimony was not in controversy (as in Ward), the Kerzner Defendants would be expected to proceed using these devices. Where several of the Defendants are outside of the compulsory process of this Court and where those witnesses are the Kerzner Defendants’ main witnesses to challenge Plaintiffs’ claims of liability, as in this case, the Court believes that the Kerzner Defendants would be severely prejudiced in their ability to defend their case. As the Supreme Court explained in Gulf Oil, the doctrine of forum non conveniens should be applied to avoid these situations: “Certainly to fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or most litigants.” 330 U.S. at 511.
Moreover, Plaintiffs’ have not identified a single witness who would be available to testify if trial were held in Florida but would not be available to testify at trial in the Bahamas. As all but one of Plaintiffs’ witnesses are [*30] coming from locations outside of this district, all but one will have to travel. The Court believes that it would be equally feasible for Plaintiffs to arrange plane tickets and hotel stays in Nassau, Bahamas, as it would in West Palm Beach, Florida. These cities are roughly 200 miles apart, a relatively short distance considering that Plaintiffs will have to travel roughly 1,000 miles to reach either forum. While there may be some inconvenience for the one Florida witness to travel to the Bahamas, Plaintiffs cannot realistically contend that the inconvenience of traveling to Nassau would vary significantly from the inconvenience of traveling to West Palm Beach. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 107 (2d Cir. 2000) (“For any nonparty witnesses, the inconvenience of a trial in New York is not significantly more pronounced than the inconvenience of a trial in England.”).
Finally, it has been widely recognized that the inability to implead other parties directly involved in a controversy is a factor weighing heavily against the plaintiff’s choice of forum. See, e.g., Reid-Walen v. Hansen, 933 F.2d 1390, 1398 (8th Cir. 1991); Fitzgerald v. Texaco, Inc., 521 F.2d 448, 453 (2d Cir. 1975). [*31] In this case, like in Piper Aircraft, the joinder of Nassau Cruises, Ltd., Robert Brown, Rodger Munroe, and Silvin Brown is “crucial to the presentation” of the Kerzner Defendants’ case. 454 U.S. at 259. Plaintiffs want to show that Nassau Cruises and these individuals are the agents of the Kerzner Defendants and that the Kerzner Defendants are vicariously liable for her injuries. Without the ability to join this corporation and these individuals meaningfully to this case, the Kerzner Defendants would be forced to defend claims of vicarious liability with limited benefit of evidence from the persons actually involved in the incident giving rise to the claim. The Court finds this burden to be substantial. 6 Conversely, the Court can find no substantial burden on Plaintiffs (other than a financial burden from Plaintiffs’ inability to retain counsel on a contingency fee basis) from having to litigate their dispute in the Bahamas.
6 Unlike all of the cases involving injuries at resorts cited by Plaintiffs, this case is distinct because it involves an injury allegedly caused by third parties. In every other case, the plaintiff alleged that the resort was directly liable for negligence. Here, [*32] Plaintiffs do not argue direct negligence by the Kerzner Defendants, and the Kerzner Defendants can only defend their own case by compelling the attendance of the alleged direct tortfeasors. While these tortfeasors are nominally part of this lawsuit and have been served, their appearance in Court cannot be guaranteed.
After considering the private interest factors, the Court finds that they weigh substantially against Plaintiffs’ selection of the Southern District of Florida as their forum. The Court will now consider the public interest factors.
Public Interest Factors
In Gulf Oil, the Supreme Court described the considerations of public interest that district courts should consider on a motion to dismiss for forum non conveniens:
Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There [*33] is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.
Gulf Oil, 330 U.S. at 508-09. Additionally, the Court must weigh the interest of the United States in providing a U.S. forum for its citizens with the interest of the Bahamas in adjudicating a dispute that occurred in its territory. See SME Racks, 382 F.3d at 1104.
While the Court begins with the proposition that Plaintiffs (both U.S. citizens) should not be ousted from a U.S. forum, the Court finds that the public interest factors also weigh heavily in favor of trial in the Bahamas. First, in SME Racks, the court made clear that the “United States has a strong interest in providing a forum for its citizens’ grievances against an allegedly predatory foreign business that actively solicited business and caused harm within the home forum.” 382 F.3d at 1104 (emphasis added). In SME Racks, a U.S. plaintiff brought an action against a Spanish company for breach [*34] of contract and various torts in Florida. Id. at 1099. The contract was negotiated and executed in Spain, but the alleged breach and torts allegedly occurred in Florida as the plaintiff claimed it received a shipment of defective goods in Florida. Id. This case is distinguishable from SME Racks, because the “harm” did not occur in Florida (or even in the U.S.). Instead, Plaintiffs are suing (with one exception) Bahamian companies and individuals for conduct which occurred entirely within the Bahamas. Unlike SME Racks, the presumption in favor of Plaintiffs’ choice of forum here is not as strong because of the attenuated connection of this forum with the events giving rise to the claims. See, e.g., J.C. Renfroe & Sons, Inc. v. Renfroe Japan Co., Ltd., 515 F. Supp. 2d 1258, 1274 (M.D. Fla. 2007); see also Iragorri v. United Technologies Corp., 274 F.3d 65, 73 (2d Cir. 2001) (en banc) (holding that a U.S. plaintiff’s choice of forum is not automatically granted greater deference unless the choice was motivated by “legitimate reasons”).
The parties have not addressed any administrative difficulties with pursuing this case in the Bahamas, other than the fact that contingency fee agreements [*35] for Plaintiffs’ counsel are not permitted in the Bahamas. 7 This factor, as the Court has already explained, receives no consideration. The Court also agrees with Plaintiffs that a view of the site of Mrs. Son’s accident is meaningless because the “shifting sands are no longer as they were at the time of the accident.” (Pl. Resp. 14.) The remaining factors, nonetheless, weigh heavily for the Kerzner Defendants.
7 The Court notes the logic of Chierchia v. Treasure Cay Services, 738 F. Supp. 1386 (S.D. Fla. 1990), where Judge King held that “a forum in which the personal injury action arose would present a better administrative choice than one which experiences one of the busiest criminal dockets in the U.S.” Id. at 1389.
A jury composed of residents of Palm Beach County, Florida, has a minimal (if any) interest in adjudicating a dispute between citizens of Maryland and (with one exception) citizens of the Bahamas for acts that occurred in the Bahamas. As explained in Gulf Oil, the people of Florida have no relation to this case, and thus they should not bear the burden of serving on a jury to settle a dispute between Maryland residents and Bahamian corporations for activities in Bahamian [*36] territory. In contrast, the Bahamas has an interest in settling a dispute between its citizens and foreigners for activity that happened within its sovereign territory. The Commonwealth of the Bahamas has the strongest interest in protecting tourists and visitors from the conduct of its own citizens. See, e.g., Calvo v. Sol Melia, S.A., 761 So. 2d 461, 464 (Fla. Dist. Ct. App. 2000). While the State of Florida has an interest in protecting its citizens, Plaintiffs (as well as countless other visitors to the Atlantis resort) are not citizens of Florida and they have not presented a persuasive argument for needing the protection of Florida’s laws. 8
8 An argument could be made that the United States has an interest in protecting its citizens from harm abroad. Nevertheless, the Court feels that the interests of the Bahamas are stronger, because the events giving rise to the cause of action occurred in the Bahamas and because Defendants are Bahamian nationals. Further, Plaintiffs traveled to the Bahamas on their own volition and only after the fact seek the protection of U.S. courts.
Plus, Bahamian law will most likely govern this dispute. 9 While this Court is capable of applying Bahamian [*37] law, and the Bahamas is a common law country much like our own, the Court would be forced to rely on expert testimony and evidence provided by the parties as to the substance of Bahamian law, which would add substantially to the administrative burden of having trial in this forum. “The public interest factors point towards dismissal where the court would be required to ‘untangle problems in conflict of laws, and in law foreign to itself.'” Piper Aircraft, 454 U.S. at 251 (quoting Gulf Oil, 330 U.S. at 509).
9 In Florida, courts apply the “significant relationship test” to determine the substantive law applied to personal injury actions. Bishop v. Florida Specialty Paint Co., 389 So.2d 999, 1001 (Fla. 1980). While not dispositive, the law of the state where both the injury and the conduct causing the injury occurred is, in most instances, the law to be applied. Id. Since Mrs. Son’s accident occurred in the Bahamas, the Court finds it likely that Bahamian law will apply, at least in part, to this dispute. Notably, none of the other factors Florida courts consider (residence, nationality or place of incorporation of the parties and the place where the relationship between the parties is [*38] centered) indicate that Florida law should apply. Again, these factors would suggest either Bahamian law or Maryland law should be applied.
Accordingly, the Court finds that the public interest factors also weigh in favor of dismissal of this action.
Reinstatement of Suit
The Court must ultimately determine whether Plaintiffs can reinstate their lawsuit in the alternative forum without undue prejudice or inconvenience. See Leon, 251 F.3d at 1310-11. As the Court has already explained, the inconvenience of traveling from Maryland to West Palm Beach, Florida, is no greater than the inconvenience of traveling from Maryland to Nassau, Bahamas. The distance between these locations is practically the same. In addition, Plaintiffs will not be prejudiced by dismissal, as Defendants are all subject to the jurisdiction of Bahamian courts. (Def. Mot. 19.) The statute of limitations will expire in August 2008, but Defendants have agreed to waive any statute of limitations defenses they might have under Bahamian law. (Id. at 19 n.12.) The Court, therefore, dismisses this action subject to these representations.
Conclusion
It is hereby ORDERED AND ADJUDGED that the Kerzner Defendants’ Motion to Dismiss [*39] (DE 15) is GRANTED IN PART as follows:
1. The Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) is DENIED. (See DE 31.)
2. The Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(3) is GRANTED.
3. The Motion to Dismiss on the basis of the doctrine of forum non conveniens is GRANTED.
4. The Kerzner Defendants are deemed to have waived any statute of limitations and personal jurisdiction defenses they might otherwise raise in the Supreme Court of the Bahamas.
5. This case is DISMISSED WITHOUT PREJUDICE for Plaintiff to refile in the Supreme Court of the Bahamas.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 5th day of September, 2008.
/s/ Kenneth A. Marra
KENNETH A. MARRA
United States District Judge
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Sad, Arizona school insurance no longer covering ropes courses.
Posted: May 14, 2014 Filed under: Arizona, Challenge or Ropes Course | Tags: Arizona, Arizona Public Schools, challenge course, Payson Unified School District, PUSD, Ropes course Leave a commentRopes courses are being torn down across the state because they can’t be insured
You can say bad attorneys, lousy program, bad instructors, freak accident. But the ropes course or challenge course industry is heading into the history books in Arizona. A lawsuit in Arizona against a public school will force all ropes courses in Arizona Public Schools to be removed.
Because of an accident in Tucson that forced the Arizona schools’ insurance company to pay out millions in a settlement, all ropes courses in Arizona must be removed from school property. Payson installed the ropes course with a federal grant.
In the past ten years I’ve found the following payouts due to ropes courses.
|
2008 |
$400,000 |
Improperly tied into the course |
|
|
2009 |
$4,700000 |
Alpine Towers International |
Improper equipment and failure to train |
$5.1 million in what we know about. Who knows how much has not been made public or settled.
And what really sucks about all this is ropes courses are not dangerous.
For more info on Ropes Courses & Litigation see:
Payouts in Outdoor Recreation http://rec-law.us/121q2k2
Architects, Engineers and Recreation, we need the first two, to be successful in the second http://rec-law.us/1gOSNeT
Assumption of the risk is used to defeat a claim for injuries on a ropes course http://rec-law.us/SDZlBt
Based on the article yes there was going to be a lawsuit http://rec-law.us/16JD0p3
Plaintiff raised argument in work/team building situation that they were forced to sign release http://rec-law.us/XiKRug
Plaintiff uses standards of ACCT to cost defendant $4.7 million http://rec-law.us/11UdbEn
The standard of care for a ropes or challenge course changes based on who is running it and who is using it (30) http://rec-law.us/L2tupe
$400,000 challenge course settlement for shattered ankle http://rec-law.us/1lk77Q7
When did journalism turn from telling a good factual story to trying to place blame for an accident? http://rec-law.us/1cNrxMv
What do you think? Leave a comment.
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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Ropes Course, Challenge Course, Arizona, Arizona Public Schools, Payson Unified School District, PUSD,
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Whitewater rafting, 13 injuries one death and release in WV are upheld. Management-level employees of DC health care company rafted river in allegedly high water causing injuries.
Posted: May 12, 2014 Filed under: Release (pre-injury contract not to sue), West Virginia, Whitewater Rafting | Tags: Admiralty Law, Assumption of risk, Defendant, Maritime Law, Raft, Rafting, Recreation, Shenandoah River, West Virginia, Whitewater Rafting, Writ of Prohibition 4 CommentsWest Virginia Supreme court holds that admiralty or maritime law does not apply to whitewater rafting.
Date of the Decision: December 10, 2008
Plaintiff on Appeal, Defendants at the trial court: River Riders, Inc., and Matthew Knott, Petitioners
Defendant: The Honorable Thomas W. Steptoe
Third parties on appeal: plaintiff’s at the trial court: Executor of the estate of the deceased and the 13 injured plaintiffs
Plaintiff Claims: failed to meet the statutory “standard of care” expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code
Defendant Defenses: release
Issue on Appeal: Whether the trial court had improperly held the whitewater rafting trip was subject to federal admiralty law.
Holding:
This is an interesting case from a procedural perspective as well as a factual one. The issue on appeal is not a review of a complete ruling by the trial court but of a ruling that the defendants, and the court felt would influence the final decision. Meaning the defendant could convince the appellate court that the trial court’s ruling was probably wrong and unless corrected now, the entire trial would have to be done again.
The facts are people went rafting on the Shenandoah River in West Virginia. Before embarking on the trip each person signed a “Release, Assumption of Risk and Indemnity Agreement.” The water was higher than average on the day of the raft trip; 12.5 feet compared to an average of 2 to 4 feet. During the raft trip four of the rafts dumped, sending several people into the water, including the deceased and thirteen other rafters into the river.
Two separate lawsuits were filed over the incident. The first was by the estate of the deceased. The second lawsuit was filed by the other thirteen injured rafters.
The complaints of the plaintiff allege several issues:
…River Riders failed to meet the statutory “standard of care” expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code §20-3B-3(b) (1987).
…that running a raft trip on September 30, 2004, simply was not reasonable under the circumstances, and that the expected standard of care would have obligated River Riders to cancel or reschedule the whitewater expedition on that day because of the river’s high and turbulent waters caused by a recent hurricane that had swept through the area.
…failing to call off or postpone the trip until conditions were safe to go out on the river, by failing to recognize that the operating capabilities of its rafts with the inexperienced customers would be unsafe and hazardous in high, swift and rough water conditions; and by wrongfully electing to navigate the Shenandoah River and in particular the Shenandoah Staircase.
The complaint for the wrongful death included the following claims:
two separate counts: one for negligence, gross negligence, reckless and wanton conduct; the other for negligence per se. Citing fifteen alleged acts or omissions, Count One alleges that the duties owed by River Riders to Mr. Freeman included the duty to conform to the standard of care expected of members of their profession, the duty to conform to safety and other requirements set forth in the West Virginia Code, the duty to conform to rules promulgated by the commercial whitewater advisory board, and the duty not to act in a reckless or wanton manner. Count Two alleges two additional acts or omissions constituting negligence per se, including citations by the West Virginia Division of Natural Resource for failure to mark a commercial water craft and failure to have a valid CPR card as required by W. Va. Code §20-2-23a
Prior to trial, the plaintiff’s filed a motion in limine to exclude the release agreement which the court granted. The court relied upon a prior West Virginia Supreme Court case that held since there was a statute supporting and providing defenses for the whitewater rafting industry, a release was no long available as a defense. Murphy v. North American River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504 (1991)
Another motion in limine was filed by the plaintiff’s arguing that assumption of risk could not be a defense because the case was governed by maritime law.
Finally, the plaintiff’s filed a motion to consolidate both lawsuits into one and have one trial. This motion was also granted by the court.
The defendants then filed motions with the West Virginia Supreme court arguing that the motions of the trial court were wrong, and the court had to intervene for a fair trial to occur. This motion was called a Writ of Prohibition.
The West Virginia Supreme Court granted the Writ but only as to the issue of whether or not maritime law applied to a whitewater rafting case in West Virginia.
This Court has, on limited occasions, considered challenges from evidentiary rulings in unique circumstances where the matter at issue rose to a level of considerable importance and compelling urgency.
The court declined to review the other issues because a writ of prohibition was not the proper way to argue the issues and timing of those issues were best left to the appeal of the case.
Summary of the case
To be subject to Federal maritime law a two-prong test must be met, “whether the rafting mishap and ensuing tort claims arising therefrom satisfied both prerequisite conditions of 1) location on the navigable waters and 2) connection with maritime activity.”
In determining whether or not the accident occurred on navigable waters the trial court should have included an analysis of “…whether the incident constituted “a potentially disruptive impact on maritime commerce” and that it had a “substantial relationship to traditional maritime activity” and determined the “the activity of whitewater rafting does not constitute traditional maritime activity and is therefore, not governed by maritime law.”
…given the fact that the Shenandoah River maintains average depths of two feet, 18 it is hard to envision how the act of whitewater rafting could have a potentially disruptive impact on maritime commerce, to the extent that this area was unlikely a highly traveled thoroughfare over which trade and travel is conducted.
Nor could the court find any decision where admiralty law had been applied to whitewater rafting.
Whitewater rafting is a recreational activity where participants seek the adventure of paddling a rubber raftin rapidly moving whitewater streams and rivers. Such use of streams and rivers carrying people, not as traveling passengers, but rather as participants seeking adventure, makes it difficult to conceive that whitewater rafting bears a substantial relationship to traditional maritime activity.
The appellate court sent the case back down with two of the rulings intact.
So Now What?
Admiralty law is a separate area of the law. It was developed prior to the formation of the United States for commerce between countries. It has very different rules for liability, worker’s compensation and other legal issues. In the US, admiralty law also applies to travel on major rivers and waterways. When and how admiralty law is applied is dependent upon the federal statute and the type of admiralty activity. As an example there are more than a dozen different definitions of navigable for different maritime activities.
Admiralty law came from commerce. Admiralty law has been applied to recreational activities in the past, such as using personal water craft, however, in all of those cases; the activity was on the ocean or large bodies of water.
Admiralty law could be used in some states on some rafting rivers as a defense, if handled by a law firm knowledgeable in admiralty law. If the jurisdictional issues are met, a defendant can go to court within six months of an accident and file a notice (open a case) and post a bond. The reason for doing this is, under admiralty law, the damages available to the plaintiff’s is limited to the value of the vessel and its contents after the accident. However, by doing this the raft company may be admitting liability and must prove it was an admiralty issue.
This law as created to limit the damages of a ship owner to not bankrupt the owner or the industry. A $10,000 raft, frame and gear are a relatively cheap and easy way to get out from under a potential claim. However, if you fail to meet the requirements but are still subject to admiralty law, you do not have several defenses normally relied upon to stop claims: releases and assumption of the risk.
To some extent, we are left hanging by the decision on whether a release is valid as a defense in a rafting accident in West Virginia. However, the decision on whether the federal maritime law is applicable is valuable.
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River Riders, Inc., and Matthew Knott, v. The Honorable Thomas W. Steptoe, et al, 223 W. Va. 240; 672 S.E.2d 376; 2008 W. Va. LEXIS 116; 2009 AMC 2157
Posted: May 12, 2014 Filed under: Legal Case, West Virginia, Whitewater Rafting | Tags: Admiralty Law, Maritime Law, Rafting, Shenandoah River, West Virginia, Whitewater Rafting, Writ of Prohibition Leave a commentRiver Riders, Inc., and Matthew Knott, v. The Honorable Thomas W. Steptoe, et al, 223 W. Va. 240; 672 S.E.2d 376; 2008 W. Va. LEXIS 116; 2009 AMC 2157
River Riders, Inc., and Matthew Knott, Petitioners v. The Honorable Thomas W. Steptoe, all Plaintiffs in the Christopher et al v. River Riders, Inc., Civil Action No. 06-C-328, And All Plaintiffs in Freeman Civil Action NO. 06-C-325, Respondents
No. 34206
SUPREME COURT OF APPEALS OF WEST VIRGINIA
223 W. Va. 240; 672 S.E.2d 376; 2008 W. Va. LEXIS 116; 2009 AMC 2157
October 28, 2008, Submitted
December 10, 2008, Filed
SYLLABUS
[**378] [*242] BY THE COURT
1. “In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
2. [***2] “In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.” Syllabus Point 2, State ex rel. Tucker County Solid Waste Authority v. West Virginia Division of Labor, 222 W. Va. 588, 668 S.E.2d 217, 2008 WL 2523591 (W. Va. 2008).
3. “In the absence of compelling evidence of irremediable prejudice, a writ of prohibition will not lie to bar trial based upon a judge’s pretrial ruling on a matter of evidentiary admissibility.” Syllabus Point 3, State ex rel. Shelton v. Burnside, 212 W. Va. 514, 575 S.E.2d 124 (2002).
4. “A writ of prohibition will not issue to prevent a simple abuse of [***3] discretion by a [**379] [*243] trial court.” Syllabus Point 4, State ex rel. Shelton v. Burnside 212 W. Va. 514, 575 S.E.2d 124 (2002).
5. “A party seeking to petition this Court for an extraordinary writ based upon a non-appealable interlocutory decision of a trial court, must request the trial court set out in an order findings of fact and conclusions of law that support and form the basis of its decision. In making the request to the trial court, counsel must inform the trial court specifically that the request is being made because counsel intends to seek an extraordinary writ to challenge the court’s ruling. When such a request is made, trial courts are obligated to enter an order containing findings of fact and conclusions of law. Absent a request by the complaining party, a trial court is under no duty to set out findings of fact and conclusions of law in non-appealable interlocutory orders.” Syllabus Point 6, State ex rel. Allstate Ins. Co. v. Gaughan, 203 W. Va. 358, 508 S.E.2d 75 (1998).
6. Federal admiralty law governs a tort action if the wrong occurred on navigable waters, and if the incident involved had the potential to disrupt maritime activity and the general character of the activity [***4] giving rise to the incident had a substantial relationship to traditional maritime activity.
7. “[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. §1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. 46 U.S.C. App. §740. The connection test raises two issues. A court, first, must ‘assess the general features of the type of incident involved,’ 497 U.S., at 363, 110 S.Ct., at 2896, to determine whether the incident has ‘a potentially disruptive impact on maritime commerce,’ id., at 364, n. 2, 110 S.Ct., at 2896, n. 2. Second, a court must determine whether ‘the general character’ of the ‘activity giving rise to the incident’ shows a ‘substantial relationship to traditional maritime activity.’ Id., at 365, 364, and n. 2, 110 S.Ct., at 2897, 2896, and n. 2.” Grubart v. Great Lakes Dredge & Dock Company, 513 U.S. 527, 534, 115 S.Ct. 1043, 1048, 130 L. Ed. 2d 1024 (1995).
8. The activity of whitewater rafting does not constitute traditional maritime activity [***5] and is therefore not governed by federal admiralty law.
COUNSEL: For Petitioners: Robert P. Martin, Esq., Justin C. Taylor, Esq., Jared M. Tully, Esq., Bailey & Wyant, P.L.L.C., Charleston, West Virginia; Michael A. Barcott, Esq., Holmes Weddle & Barcott, P.C., Seattle, Washington.
For Kathy L. Freeman, Respondent: Stephen G. Skinner, Esq., Laura C. Davis, Esq., Skinner Law Firm, Charles Town, West Virginia.
For The Christopher Plaintiffs, Respondent: Michael P. Smith, Esq., Salsbury, Clements, Beckman, Marder & Adkins, LLC, Baltimore, Maryland; Mark Jenkinson, Esq., Burke, Schultz, Harman, and Jenkinson, Martinsburg, West Virginia.
JUDGES: JUSTICE BENJAMIN delivered the Opinion of the Court. CHIEF JUSTICE MAYNARD concurs and reserves the right to file a concurring opinion. JUSTICE ALBRIGHT not participating. SENIOR STATUS JUSTICE McHUGH sitting by temporary assignment.
OPINION BY: BENJAMIN
OPINION
Petition for a Writ of Prohibition
WRIT GRANTED AS MOULDED
BENJAMIN, Justice: 1
1 Pursuant to an administrative order entered on September 11, 2008, the Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a member of the Supreme Court of Appeals of West Virginia commencing September 12, 2008, and continuing until [***6] the Chief Justice determines that assistance is no longer necessary, in light of the illness of Justice Joseph P. Albright.
Petitioners, River Riders, Inc. and Matthew Knott, seek a writ of prohibition to vacate three pre-trial orders of the Circuit Court of Jefferson County that (1) excluded from the forthcoming trial the Release and Assumption of Risk Agreements that had been signed by fourteen plaintiffs prior to embarking on a whitewater rafting expedition provided by the Petitioners; (2) ruled that the rafting incident was governed by [**380] [*244] general maritime law, thus, precluding assumption of the risk as a defense; and (3) consolidated the civil action of the personal representative of the estate of the decedent with the civil action brought by thirteen injured persons. After careful consideration of the memoranda 2 and arguments in this proceeding, as well as the pertinent legal authorities, we grant the writ sought only to the extent of vacating the circuit court’s ruling finding that the rafting incident is governed by maritime law.
2 We wish to acknowledge the participation of the West Virginia Professional River Outfitters amicus curiae in support of Petitioners and appreciate their [***7] participation in this action.
I.
FACTUAL AND PROCEDURAL HISTORY
This original proceeding in prohibition arose out of a commercial whitewater rafting accident on the Shenandoah River in Jefferson County, West Virginia, which resulted in the death of one person and injuries to thirteen others, all paying participants in a rafting expedition taken with River Riders, Inc., a licensed commercial whitewater outfitter. 3 As a result of the accident, two separate lawsuits against River Riders ensued. The first action was filed by Kathy L. Freeman [hereinafter referred to as the “Freeman plaintiff”], as personal representative of the estate of her husband, the decedent, Roger Freeman. 4 The second action was filed by the thirteen injured persons and seven of their spouses [hereinafter collectively referred to as the “Christopher plaintiffs”] who claimed loss of consortium. 5
3 The accident, which occurred on September 30, 2004, involved four inflatable rafts which dumped Roger Freeman and thirteen of the Christopher plaintiffs into the Shenandoah River, causing Mr. Freeman to drown, and causing various personal injuries to the others. All but two of the fourteen were management employees of Kaiser [***8] Permanente of suburban Washington, D.C. It is claimed that on this particular day, the level of water on the Shenandoah River was approximately 12.5 feet, compared to a normal average level of 2 to 4 feet during that time of year.
4 The Freeman lawsuit also names Matthew Knott, owner of River Riders, as a defendant. Mr. Knott is also alleged to have been a commercial whitewater guide who guided one of the rafts on the ill-fated expedition and who served as the trip’s leader.
5 In the second of the complaints, Timothy Friddle, husband of Cristina Renee Friddle, is named as a plaintiff. They claim “loss of consortium and services, and interference with and injury to their marital relationship.” Timothy Friddle is not, however, named as a spouse and as plaintiff in the Memorandum which these plaintiffs filed with this Court in this proceeding. The Petitioners represent that Mr. Friddle has been voluntarily dismissed from the action.
Prior to embarking on the rafting expedition, Roger Freeman and each of the injured Christopher plaintiffs signed a “Release, Assumption of Risk and Indemnity Agreement” [hereinafter sometimes referred to as “Release Agreement”] provided to them by River Riders. [***9] In that agreement, each signatory (1) acknowledged that he or she had requested to be allowed to participate in whitewater rafting provided by River Riders; and expressed his or her understanding, among other things, that “[whitewater rafting] activities and services pose substantial risks of injury or death. . . as the result of exposure; . . . or being in whitewater rivers and streams; . . . the negligence, gross negligence, or bad judgment by [the signatory], River Riders, Inc., or other participants; the failure or misuse of equipment; . . . and other known and foreseeable risks of [whitewater rafting].” (Emphasis in original). The signatories to the Release Agreement also agreed, in part, that:
In consideration of and as partial payment for being allowed to participate in [whitewater rafting] provided by River Riders, Inc., I ASSUME, to the greatest extent permitted by law, all of the risks, whether or not specifically identified herein, of all the activities in which I participate and services I use [whitewater rafting]; I RELEASE River Riders, Inc. from any and all liability, including, but not limited to, liability arising from negligence, gross negligence, willful and wanton [***10] and intentional conduct; . . .
[**381] [*245] The Freeman plaintiff and the Christopher plaintiffs contend that River Riders failed to meet the statutory “standard of care” expected of members of the whitewater guide profession in direct violation of the West Virginia Whitewater Responsibility Act, W. Va. Code §20-3B-3(b) (1987). 6 In both actions, they assert that running a raft trip on September 30, 2004, simply was not reasonable under the circumstances, and that the expected standard of care would have obligated River Riders to cancel or reschedule the whitewater expedition on that day because of the river’s high and turbulent waters caused by a recent hurricane that had swept through the area. 7 Specifically, Respondents argue that River Riders was negligent and careless and failed to conform to the standard of care by failing to call off or postpone the trip until conditions were safe to go out on the river, by failing to recognize that the operating capabilities of its rafts with the inexperienced customers would be unsafe and hazardous in high, swift and rough water conditions; and by wrongfully electing to navigate the Shenandoah River and in particular the Shenandoah Staircase. 8
6 In 1987, [***11] the Legislature enacted the Whitewater Responsibility Act, codified as W. Va. Code §§20-3B-1 et seq.(1987). Therein, [HN1] the Legislature stated that it “recognizes that there are inherent risks in the recreational activities provided by commercial whitewater outfitters and commercial whitewater guides which should be understood by each participant. It is essentially impossible for commercial whitewater outfitters and commercial whitewater guides to eliminate these risks. It is the purpose of this article to define those areas of responsibility and affirmative acts for which commercial whitewater outfitters and commercial whitewater guides are liable for loss, damage or injury.” W. Va. Code §20-3B-1.
The Act [HN2] declares that “[n]o licensed commercial whitewater outfitter or commercial whitewater guide acting in the course of his employment is liable to a participant for damages or injuries to such participant unless such damage or injury was directly caused by failure of the commercial whitewater outfitter or commercial whitewater guide to comply with duties placed on him by article two of this chapter, by the rules of the commercial whitewater advisory board, or by the duties placed on such [***12] commercial whitewater outfitters or commercial whitewater guide by the provisions of this article.” W. Va. Code §20-3B-5(a).
Among the duties imposed by the Whitewater Responsibility Act upon all commercial whitewater guides providing services for whitewater expeditions in this state is that they “while providing such services, conform to the standard of care expected of members of their profession.” W. Va. Code §20-3B-3(b).
7 The Freeman plaintiff represents to the Court that the liability issues are exactly the same in both cases.
8 The wrongful death complaint filed by the Freeman plaintiff contains two separate counts: one for negligence, gross negligence, reckless and wanton conduct; the other for negligence per se. Citing fifteen alleged acts or omissions, Count One alleges that the duties owed by River Riders to Mr. Freeman included the duty to conform to the standard of care expected of members of their profession, the duty to conform to safety and other requirements set forth in the West Virginia Code, the duty to conform to rules promulgated by the commercial whitewater advisory board, and the duty not to act in a reckless or wanton manner. Count Two alleges two additional acts [***13] or omissions constituting negligence per se, including citations by the West Virginia Division of Natural Resource for failure to mark a commercial water craft and failure to have a valid CPR card as required by W. Va. Code §20-2-23a (1999) and 58 C.S.R. 12 (2008).
The complaint filed by the Christopher plaintiffs contains twenty counts, seven of which assert loss of consortium claims. The remaining thirteen counts are negligence claims under general maritime law, one for each injured plaintiff.
Prior to the forthcoming trial in this matter, the Freeman plaintiff filed a Motion in Limine to exclude the Release Agreement 9 that had been signed by Mr. Freeman. On January 30, 2008, the circuit court, in finding that the issues at trial on liability were whether the defendants met the standard of care required under the Whitewater Responsibility Act, entered an order granting the Motion in Limine prohibiting the defendants from introducing the Release Agreement, making any reference to it, or eliciting any information regarding it at trial. The circuit court based it ruling on the language of W. Va. Code §20-3B-3(b), and on this Court’s prior decision in Murphy v. North American River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504 (1991) [***14] 10 and on Johnson v. New [**382] [*246] River Scenic Whitewater Tours, Inc., 313 F.Supp.2d. 621 (S.D. W.Va. 2004).
9 The Freeman Plaintiff also filed a Motion for Judgment on the Pleadings which the circuit court denied.
10 In Murphy, this Court held that generally, [HN3] in the absence of an applicable statute, a plaintiff who expressly and, under the circumstances, clearly agrees to accept a risk of harm arising from a defendant’s negligent or reckless conduct may not recover for such harm, unless the agreement is invalid as contrary to public policy. 186 W. Va. 310, 412 S.E.2d 504.
Thereafter, on April 15, 2008, the circuit court likewise granted a Motion in Limine Regarding Release and Assumption of the Risk filed by the Christopher plaintiffs, which excluded the release agreement from trial. The circuit court, finding that maritime law governed the case, held that assumption of the risk was not an available defense. Specifically, the court held:
Second, this Court is of the opinion that assumption of the risk is not an available defense in this maritime action. Because the incident occurred on the Shenandoah River, a navigable body of water, it is governed by general maritime law. Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206, 116 S. Ct. 619, 133 L. Ed. 2d 578 (1996). [***15] Assumption of the risk is not a defense in admiralty or maritime law. DeSole v. United States, 947 F.2d 1169, 1175 (4th Cir. 1991). In fact, “[t]he tenants of admiralty law, which are expressly designed to promote uniformity, do not permit assumption of risk in cases of person [sic] injury whether in commercial or recreational situation.” Id. The foundation of this principle has been recognized for more than 70 years. In The Arizona v. Anelich, Justice Harlan F. Stone, stated in support of his position that assumption of the risk was not a proper defense in cases of unseaworthiness, “No American case appears to have recognized assumption of risk as a defense by such a suit.” 298 U.S. 110, 122, 56 S. Ct. 707, 80 L. Ed. 1075 (1936). Accordingly, Defendant is prohibited from asserting the defense of assumption of the risk or making any argument in support of this defense at trial.
To the left of the judge’s signature on the order, there appeared a stamped “Note to Counsel”, which reads, “[t]he court has received no pleadings in opposition to this motion during the time period contemplated by trial court rule 22 order.” Subsequent to the circuit court’s ruling on those issues, Petitioners filed a Motion for Relief from [***16] the circuit court’s order on April 23, 2008, to clarify that it had in fact filed a response to plaintiffs’ motion in limine, but that it was untimely filed due to excusable neglect. 11 Petitioners urged the circuit court to consider its reply.
11 Petitioners contended that the mailing, rather than faxing, of their responses to the motion on the last day of filing was a clerical error that should not result in completely ignoring their response to the motion, which resulted in the exclusion of a recognized common law defense in West Virginia, among other findings.
In a third order entered on May 19, 2008, the circuit court granted the Christopher plaintiffs’ motion to consolidate their case with the case of the Freeman plaintiff under Case No. 06-C-328. In granting the motion, the circuit court considered the four factors set forth in Syllabus Point 2, State ex rel. Appalachian Power Company v. Ranson, 190 W. Va. 429, 438 S.E.2d 609 (1993) in exercising its discretion when deciding issues of consolidation under Rule 42(a) of the West Virginia Rules of Civil Procedure. The circuit court expressly declined Petitioner’s request to bifurcate the cases on the issue of damages, stating that [***17] “the issue of liability and damages are intertwined and not reasonably susceptible of being bifurcated.”
Following the entry of the third order, Petitioners invoked the original jurisdiction of this Court in prohibition seeking a writ to vacate the three circuit court orders of January 30, 2008, April 15, 2008, and May 19, 2008. Petitioners assert that the circuit court’s rulings are incorrect for several reasons: (1) the Release Agreements are admissible as evidence because they contain warnings of the inherent risks of participating in whitewater rafting, and to the extent the Agreements contain inadmissible or unenforceable provisions, those provisions could be redacted therefrom; (2) maritime jurisdiction does not extend to this whitewater rafting case on the Shenandoah River because the Whitewater Responsibility Act is controlling, as the Shenandoah River is not a navigable waterway since it cannot be used for [**383] [*247] commercial shipping; (3) the circuit court failed to make any findings of fact regarding the navigability of the Shenandoah River; (4) assumption of the risk would be an available defense of the actions pursuant to controlling West Virginia law; (5) mandating the application [***18] of maritime law negates the West Virginia Whitewater Responsibility Act, and deprives the defendants of the defense of assumption of the risk, thus rendering all whitewater outfitters uninsurable and crippling a vital State industry; and (6) consolidating the two cases for trial will cause unfair prejudice and insure juror confusion as a result of the intertwining of unrelated legal, factual and damage issues in that one case is a wrongful death case, and the others are personal injury cases. Specifically, Petitioners claim that the circuit court’s consolidation of the two cases will result in the application of maritime law to both actions, prohibiting the defense of assumption of the risk in both.
Conversely, the Christopher plaintiffs argue (1) that maritime law applies because the tort they complain of has a nexus to traditional maritime activity, and because the Shenandoah River is a navigable waterway; (2) that since there is no well- developed substantive maritime law of the issue of whitewater rafting safety, maritime law permits the circuit court to properly look to the West Virginia Whitewater Responsibility Act for guidance 12 and (3) that “[b]ecause there is no federal statute [***19] stating otherwise, the duty under maritime law is the same duty established under West Virginia’s Whitewater Responsibility Act – that commercial whitewater outfitters and commercial whitewater guides ‘conform to the standard of care expected of members of their profession.’ W. Va. Code §20-3B-3.” It appears that the only facet of maritime law that the Respondents wish to have applied to this case is that assumption of the risk is not a defense.
12 Citing Tassinari v. Key West Water Tours, L.C., 2007 U.S. Dist. LEXIS 46490, 2007 WL 1879172 (S.D. Fla. 2007)(unpublished opinion); Smith v. Haggerty, 169 F.Supp.2d 376 (E.D.Pa. 2001); and Coastal Fuels Marketing, Inc. v. Florida Exp. Shipping Co., Inc., 207 F.3d 1247, 1251 (11th Cir. 2000).
II.
STANDARD OF ISSUANCE OF WRIT OF PROHIBITION
[HN4] The standard for the issuance of a writ of prohibition is set forth in W. Va. Code §53-1-1 (1882): “The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or having such jurisdiction, exceeds its legitimate powers.” In syllabus point 4 of State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996) we [***20] held:
[HN5] In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
Id., Syl. Pt. 4.
This Court has stated that “. . . [HN6] prohibition. . . against judges [***21] [is a] drastic and extraordinary remed[y] . . . As [an] extraordinary remed[y], [it is] reserved for really extraordinary causes.” State ex rel. United States Fid. & Guar. Co. v. Canady, 194 W. Va. 431, 436, 460 S.E.2d 677, 682 (1995)(citations omitted); State ex rel. Tucker County Solid Waste Authority v. West Virginia Division of Labor, 222 W. Va. 588, 668 S.E.2d 217, [**384] [*248] 2008 WL 2523591 (W. Va. 2008). Thus, we have held that:
[HN7] In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.
Id. at Syl. Pt. 2 (citing Syllabus Point 1, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979)).
In [***22] syllabus point 3, State ex rel. Shelton v. Burnside, 212 W. Va. 514, 575 S.E.2d 124 (2002), this Court recognized “[i]n [HN8] the absence of compelling evidence of irremediable prejudice, a writ of prohibition will not lie to bar trial based upon a judge’s pretrial ruling on a matter of evidentiary admissibility.” (quoting Syl. Pt. 2, State ex rel. Williams v. Narick, 164 W. Va. 632, 264 S.E.2d 851 (1980)). “A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court.” Syl. Pt. 4, 212 W. Va. 514, 575 S.E.2d 124. “The writ does not lie to correct ‘mere errors’ and . . . it cannot serve as a substitute for appeal, writ of error or certiorari.” Narick, 164 W. Va. at 635, 264 S.E.2d at 854.
This Court further stated in Burnside that:
[t]here is a practical reason for not allowing challenges, by use of the writ of prohibition, to every pre-trial discretionary evidentiary ruling made by trial courts. Such use of the writ would effectively delay trials interminably while parties rushed to this Court for relief every time they disagree with a pre-trial ruling. The fact remains that “[t]he piecemeal challenge of discretionary rulings through writs of prohibition [***23] does not facilitate the orderly administration of justice.” Woodall, 156 W. Va. at 713, 195 S.E.2d at 721. Said another way, “writs of prohibition should not be issued nor used for the purpose of appealing cases upon the installment plan.” Wimberly v. Imel, 1961 OK CR 25, 358 P.2d 231, 232 (Okla. Crim. App., 1961).
212 W. Va. at 519, 575 S.E.2d at 129. Guided by these principles, we proceed to consider the parties’ arguments.
III.
DISCUSSION
Petitioners raise questions regarding three pretrial rulings made by the circuit court on two motions in limine and one motion to consolidate. We note as a preliminary matter that it is this Court’s general practice and procedure to decline to consider rulings on motions in limine. This Court has recognized that “[t]hese [HN9] motions necessarily involve the exercise of discretion, and the correctness of discretionary rulings should ordinarily be challenged at a time when the entire record is available to an appellate court. The piecemeal challenge of discretionary rulings through writs of prohibition does not facilitate the orderly administration of justice.” Woodall v. Laurita, 156 W. Va. 707, 713, 195 S.E.2d 717, 720-21 (1973). Thus, in the absence of jurisdictional [***24] defect, the administration of justice is not well served by challenges to discretionary rulings of an interlocutory nature. These matters are best saved for appeal. State ex rel. Allen v. Bedell, 193 W. Va. at 37, 454 S.E.2d at 82 (Cleckley, J. concurring). As Justice Cleckley cautioned in his concurrence in State ex rel. Allen v. Bedell:
[HN10] Mere doubt as to the correctness of a trial court’s ruling on a motion in limine regarding an evidentiary issue is an insufficient basis to invoke this Court’s writ power. To justify this extraordinary remedy, the petitioner has the burden of showing that the lower court’s jurisdictional usurpation was clear and indisputable and, because there is no adequate relief at law, the extraordinary writ provides the only available and adequate remedy. Thus, writs of prohibition, as well as writs of [**385] [*249] mandamus and habeas corpus, should not be permitted when the error is correctable by appeal.
193 W. Va. at 37, 454 S.E.2d at 82.
This Court has, on limited occasions, considered challenges from evidentiary rulings in unique circumstances where the matter at issue rose to a level of considerable importance and compelling urgency. 13 In reviewing the claims asserted [***25] by Petitioners herein, which allege that the circuit court, by virtue of a motion in limine, made jurisdictional rulings that serve to have a significant and lasting negative impact on the question of liability for an important segment of business within this State, we find it appropriate to accept this matter for consideration at this stage in the proceedings. 14
13 See State ex rel. Foster v. Luff, 164 W. Va. 413, 419, 264 S.E.2d 477, 481 (1980)(prohibition granted where trial court abused discretion in failing to authorize expenditure of adequate funds to allow defense to secure experts); State ex rel. Register-Herald v. Canterbury, 192 W. Va. 18, 449 S.E.2d 272 (1994)(prohibition granted to reverse order constituting prior restraint against newspaper); State ex rel. Tyler v. MacQueen, 191 W. Va. 597, 447 S.E.2d 289 (1994)(prohibition used to review disqualification of prosecutor’s office); State ex rel. Leach v. Schlaegel, 191 W. Va. 538, 447 S.E.2d 1 (1994)(prohibition granted to prevent relitigation of case which was foreclosed because of collateral estoppel); State ex rel. DeFrances v. Bedell, 191 W. Va. 513, 446 S.E.2d 906 (1994)(prohibition used to review decision on lawyer’s [***26] disqualification).
14 Respondents contend that the circuit court’s order of April 15, 2008, cannot be challenged by the Petitioners, or is not before this Court in this extraordinary proceeding, because the Petitioners did not timely oppose the Christopher plaintiffs’ motion in limine asking the circuit court to find that maritime law governed the case. Petitioners admit that a scheduling order required them to file their response to the motion in limine by April 10, 2008, but that through “clerical error” their response was mailed, not faxed, to the clerk and the court on April 10, 2008. Five days later, on April 15, 2008, the circuit court, having not received the mailed response, entered an order granting the motion. To the left of the judge’s signature on the order, there appears a stamped “Note to Counsel”, which reads, “[t]he court has received no pleadings in opposition to this motion during the time period contemplated by trial court rule 22 order.” Petitioners contend that the mailing, rather than faxing, of their responses to the motion on the last day of filing was a clerical error that should not result in completely ignoring their response to the motion, which resulted in [***27] the exclusion of a recognized common law defense in West Virginia, among other findings.
Rule 6(b) of the West Virginia Rules of Civil Procedure [HN11] provides, in part, that “[w]hen . . . by order of court an act is required or allowed to be done at or within a specified time . . . the court for cause shown may at any time in its discretion . . . (2) upon motion made after the expiration of the specified period permit the act to be done when the failure to act was the result of excusable neglect. . .” In Pritt v. Vickers, 214 W. Va. 221, 227, 588 S.E.2d 210, 216 (2003), the Court approvingly quotes this statement in 3 Moore’s Federal Practice §16.14: “[a] trial court may modify or amend a scheduling order only when ‘good cause’is shown and the court grants leave to modify.” See also Walker v. Option One Mortgage Corporation, 220 W. Va. 660, 665, 649 S.E.2d 233, 238 (2007)(trial courts should not permit parties to obtain extensions absent a showing of good cause). The record before us does not reveal that Petitioners filed a motion with the circuit court after the April 10, 2008, deadline to permit the belated filing of their response. If they did not, we cannot condone their failure, and [***28] their argument that this Court should, nevertheless, hear their argument that the circuit court incorrectly concluded that maritime law applies and that assumption of the risk is not a defense under that law. We will, however, consider the circuit court’s order of April 15, 2008, in this regard because it raises questions of whether the circuit court has jurisdiction of the subject matter in controversy. Issues of jurisdiction may be raised by this Court sua sponte. Ray v. Ray, 216 W. Va. 11, 13, 602 S.E.2d 454, 456 (2004). Also, “[t]his Court may, sua sponte, in the interest of justice, notice plain error.” Syl. Pt.1, Cartwright v. McComas, 223 W. Va. 161, 672 S.E.2d 297, 2008 W. Va. LEXIS 81, 2008 WL 4867068 (W. Va. 2008).
Having made the determination to consider this matter, we limit our review herein to the specific jurisdictional issue of the circuit court’s finding that the rafting incident is governed by maritime law. We decline to address on a writ of prohibition the other issues presented regarding the exclusion of the Releases signed by the plaintiffs and the circuit court’s consolidation of the two cases, to the extent that the circuit court’s rulings were discretionary. As stated above, this Court’s general rule provides that [***29] [HN12] prohibition is ordinarily inappropriate in matters involving a trial court’s pretrial ruling on the admissibility of evidence. State ex rel. Shelton v. Burnside, 212 W. Va. at 518, 575 S.E.2d at 128. Furthermore, “[a] [HN13] decision by a trial court to consolidate civil actions on [**386] [*250] any or all matters in issue under Rule 42(a) of the West Virginia Rules of Civil Procedure will be deferentially reviewed under an abuse of discretionary standard.” State ex rel. Appalachian Power Company v. MacQueen, III, 198 W. Va. 1, 4, 479 S.E.2d 300, 303 (1996).
[HN14] A trial court, pursuant to provisions of Rule 42, has a wide discretionary power to consolidate civil actions for joint hearing or trial and the action of a trial court in consolidating civil actions for a joint hearing or trial will not be reversed in the absence of a clear showing of abuse of such discretion and in the absence of a clear showing of prejudice to any one or more of the parties to civil actions which have been so consolidated.
Syl. Pt. 1, Holland v. Joyce, 155 W. Va. 535, 185 S.E.2d 505 (1971); State ex rel. Appalachian Power Company v. MacQueen, III, 198 W. Va. 1, 4, 479 S.E.2d 300, 303 (1996).
Herein, Respondents allege that the instant [***30] petition should not be considered because Petitioners never requested that the circuit court set forth a detailed order including findings of fact and conclusions of law that support and form the basis of its decision, or informed the circuit court that it intended to seek an extraordinary writ to challenge the court’s ruling. We held in State ex rel. Allstate Ins. Co. v. Gaughan, 203 W. Va. 358, 367, 508 S.E.2d 75, 84:
[HN15] A party seeking to petition this Court for an extraordinary writ based upon a non-appealable interlocutory decision of a trial court, must request the trial court set out in an order findings of fact and conclusions of law that support and form the basis of its decision. In making the request to the trial court, counsel must inform the trial court specifically that the request is being made because counsel intends to seek an extraordinary writ to challenge the court’s ruling. When such a request is made, trial courts are obligated to enter an order containing findings of fact and conclusions of law. Absent a request by the complaining party, a trial court is under no duty to set out findings of fact and conclusions of law in non-appealable interlocutory orders.
Syl. Pt. [***31] 6, 203 W. Va. 358, 508 S.E.2d 75.
While we recognize that there is generally a duty on the part of a party petitioning this Court for an extraordinary writ based upon a non-appealable interlocutory decision of a trial court to make a request that the trial court set forth findings of fact and conclusions of law prior to seeking prohibition, we will proceed to consider the maritime issue before us since it concerns a distinct issue of law involving the interpretation and application of a federal statute which may be resolved on the pleadings, orders and arguments before us. This Court has, on prior occasions, recognized that [HN16] when we are able to resolve issues before the Court without a detailed order, it is not necessary to remand for the circuit court to provide findings of fact and conclusions of law. See, e.g., Pruitt v. W. Va. Dep’t of Pub. Safety, 222 W. Va. 290, 664 S.E.2d 175 (2008)(citing Fayette County National Bank v. Lilly, 199 W. Va. 349, 484 S.E.2d 232 (1997))(this Court is able to resolve issues before us without a detailed order and thus have no reason to remand for the circuit court to provide findings of fact and conclusions of law). See also Toth v. Board of Parks and Recreation Com’rs, 215 W. Va. 51, 55, 593 S.E.2d 576, 580 (2003); [***32] Ward v. Cliver, 212 W. Va. 653, 656, 575 S.E.2d 263, 266 (2002). [HN17] Based upon the jurisprudence of the United States Supreme Court and the statutory laws of the State of West Virginia, we find, as a matter of law, that the activity of whitewater rafting does not invoke federal admiralty jurisdiction.
The question of whether or not the rafting accident on September 30, 2004, is governed by general maritime law presents a federal admiralty jurisdictional question. 15 Herein, [**387] [*251] the circuit court concluded that because the incident occurred on the Shenandoah River, a navigable body of water, it is governed by general maritime law. The circuit court order cites to the decision Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206, 116 S.Ct. 619, 623, 133 L. Ed. 2d 578 (1996), as support for its ruling.
15 [HN18] The United States Constitution provides in relevant part that “[t]he judicial Power shall extend. . . to all Cases of admiralty and maritime jurisdiction. . .” U.S. Const. Art. III, §2, cl. 1. Pursuant to 28 U.S.C.A. §1333(1948 and 1949), “[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in [***33] all cases all other remedies to which they are otherwise entitled.” The United States Supreme Court interpreted this section in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222, 106 S.Ct. 2485, 2494, 91 L. Ed. 2d 174 (1986) stating:
[HN19] the “savings to suitors” clause . . . allows litigants to bring in personam maritime actions in state courts. See Judiciary Act of 1789, §9, 1 Stat. 76 (“savings to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it”); 28 U.S.C. §1333 . . . See also Madruga v. Superior Court, 346 U.S. 556, 560, n. 12, 74 S.Ct. 298, 300, n. 12, 98 L.Ed. 290 (1954) . . . The “savings to suitors” clause leaves state courts competent to adjudicate maritime causes of action in proceedings in personam and means that “a state, ‘having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents, as it sees fit’ so long as it does not attempt to [give in rem remedies or] make changes in the ‘substantive maritime law.'” [citations omitted]. Stated another way, the “savings to suitors” clause allows state courts to entertain in personam maritime causes of action, but in such cases the extent to which state [***34] law may be used to remedy maritime injuries is constrained by a so-called “reverse-Erie” doctrine which requires that the substantive remedies afforded by the States conform to governing federal maritime standards.
477 U.S. at 222, 106 S.Ct. at 2494. See also Wright, Miller, Cooper, 14A Fed. Prac. & Proc. Juris.3d §3672, and Am.Jur.2d Admiralty §108.
Yamaha, 516 U.S. 199, 116 S.Ct. 619, 133 L. Ed. 2d 578, involved a collision between a twelve-year-old on a rented jet-ski and another recreational vehicle in territorial waters of the United States off a hotel frontage in Puerto Rico. The Yamaha Court found that because the case involved a watercraft collision on navigable waters, it fell within admiralty’s domain. 516 U.S. at 206, 116 S.Ct. at 623. The Yamaha Court then cited to its other previous decisions in Sisson v. Ruby, 497 U.S. 358, 361-367, 110 S.Ct. 2892, 2895-2898, 111 L. Ed. 2d 292 (1990), and Foremost Ins. Co. v. Richardson, 457 U.S. 668, 677, 102 S.Ct. 2654, 2659, 73 L. Ed. 2d 300 (1982), which set forth [HN20] the admiralty or maritime jurisdiction test for tort claims. “The test ‘comprises two functional inquiries: first, the traditional “situs” analysis determining whether the tort was committed or the alleged injury occurred on navigable [***35] waters, and second, the more recently developed “nexus” analysis determining whether the alleged tort bears a significant relationship to traditional maritime activities.” Sisson, 497 U.S. at 361-367, 110 S.Ct. at 2895-2898.
Subsequently, in Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L. Ed. 2d 1024 (1995), the Supreme Court stated:
After Sisson, then, [HN21] a party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. §1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. 46 U.S.C. App. §740. The connection test raises two issues. A court, first, must “assess the general features of the type of incident involved,” 497 U.S., at 363, 110 S.Ct., at 2896, to determine whether the incident has “a potentially disruptive impact on maritime commerce,” id., at 364, n. 2, 110 S.Ct., at 2896, n. 2. Second, a court must determine whether “the general character” of the “activity giving rise to the incident” shows a “substantial relationship to [***36] traditional maritime activity.” Id., at 365, 364, and n. 2, 110 S.Ct., at 2897, 2896, and n. 2.
513 U.S. 527, 534, 115 S.Ct. 1043, 130 L. Ed. 2d 1024. Thus, according to Grubart, federal admiralty law governs a tort action if the wrong occurred on navigable waters, and if the incident involved had the potential to disrupt maritime activity and the general character of the activity giving rise to the incident had a substantial relationship to traditional maritime activity. 16
16 The Fourth Circuit has recognized the Grubart jurisdictional test. See Brock v. Lewis, 86 F.3d 1148 (4th Cir. 1996)(unpublished opinion). Other publications that provide discussion of the criteria for determining admiralty jurisdiction include:1 The Law of Maritime Personal Injuries §10.1 (5th ed.)(2007)(stating that “[t]here is no doubt that [HN22] under the current law recreational boating activities that give rise to personal injuries or death fall within admiralty jurisdiction if they satisfy the locus and nexus criteria for admiralty tort jurisdiction.”; See also Wright, Miller, Cooper, 14A Fed. Prac. & Proc. Juris.3d §3676; Admiralty Jurisdiction: Maritime Nature of Torts – Modern Cases, 80 A.L.R. Fed. 105 (2008).
[**388] [*252] Based upon the United [***37] States Supreme Court’s holding in Grubart, [HN23] in order for the circuit court to find that general maritime law applies, it should have properly determined whether the rafting mishap and ensuing tort claims arising therefrom satisfied both prerequisite conditions of 1) location on the navigable waters and 2) connection with maritime activity. Failing to conduct such an analysis, the circuit court’s order of April 15, 2008, concluded, in a single sentence, that “because the incident occurred on the Shenandoah River, a navigable body of water, it is governed by general maritime law.” From its order, the circuit court appears to have only considered the first prong of the Grubart test in arriving at its conclusion that maritime law applied. 17
17 It is not necessary for this Court to discuss the propriety of the circuit court’s findings regarding the location requirement to the extent that we find that the second part of the Grubart test is not satisfied. [HN24] A party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. §1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity. With that said, we note that the circuit court provided [***38] no standards whereby it determined that the Shenandoah River is in fact a navigable river, and no facts to which it applied standards to make that determination. Based on the limited set of facts we have reviewed herein, we question how a river with average relevant depths of two feet that was used for whitewater rafting purposes could possibly be considered a navigable waterway for purposes of maritime jurisdiction.
In addition to determining whether the incident occurred on navigable waters, the circuit court should have also analyzed whether the incident constituted “a potentially disruptive impact on maritime commerce” and that it had a “substantial relationship to traditional maritime activity” in order to satisfy the second nexus criterion. Applying the second prong of the Grubart test to the circumstances of the instant case, we find that [HN25] the activity of whitewater rafting does not constitute traditional maritime activity and is therefore not governed by maritime law.
First, given the fact that the Shenandoah River maintains average depths of two feet, 18 it is hard to envision how the act of whitewater rafting could have a potentially disruptive impact on maritime commerce, to [***39] the extent that this area was unlikely a highly traveled thoroughfare over which trade and travel is conducted. 19 However, even assuming, for the sake of argument, that the incident that occurred during this whitewater rafting trip had a potentially disruptive impact on maritime commerce, it still did not bear a substantial relationship to traditional maritime activity.
18 This fact was represented by both the Petitioners and the Respondents.
19 See Grubart, 115 S.Ct. at 1051 (the relevant inquiry is whether the general features of the mishap place it within a class of incidents that pose more than a fanciful risk to commercial shipping.)
The cases before us involve an unfortunate incident that occurred during the course of a recreational outing on a river that was unusually swollen with flood waters resulting from a hurricane. They do not concern piloting, shipping, or navigational error, or other aspects of traditional maritime activity. Foster v. Peddicord, 826 F.2d 1370, 1376 (4th Cir. 1987). The requisite maritime connection is therefore missing.
It is particularly relevant that there is no existing federal or state precedent applying admiralty jurisdiction to the activity of whitewater [***40] rafting. Perhaps this is because the very nature of the activity of whitewater rafting is not the customary mode of travel or transportation with which maritime law has ever been concerned. Whitewater rafting is a recreational activity where participants seek the adventure of paddling a rubber raft in rapidly moving whitewater streams and rivers. Such use of streams and rivers carrying people, not as traveling passengers, but rather as participants seeking adventure, makes it difficult to conceive that whitewater rafting bears a substantial relationship to traditional maritime activity. For these reasons, we conclude that the circuit court committed clear error in determining [**389] [*253] that maritime law applies to the instant cases.
IV.
CONCLUSION
Accordingly, we grant the writ sought only to the extent of vacating the circuit court’s ruling finding that the rafting incident is governed by maritime law. We remand this matter to the circuit court for entry of an order consistent with this opinion.
Writ granted as moulded.
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West Virginia Whitewater Responsibility Act.
Posted: May 12, 2014 Filed under: West Virginia, Whitewater Rafting | Tags: Boat, Commercial Whitewater Rafting, Kayak, Outfitter, Rafting, Recreation, West Virginia, Whitewater Rafting, Whitewater Responsibility Act Leave a commentWest Virginia Whitewater Responsibility Act.
Chapter 20. Natural Resources.
Article 3B. Whitewater Responsibility Act.
GO TO WEST VIRGINIA STATUTES ARCHIVE DIRECTORY
W. Va. Code Ch. 20, Art. 3B Notes (2014)
Article 3B. Whitewater Responsibility Act. Notes
A.L.R. references.
Validity, construction, and effect of agreement exempting operator of amusement facility from liability for personal injury or death of patron, 54 A.L.R.5th 513.
§ 20-3B-1. Legislative purposes.
Every year, in rapidly increasing numbers, the inhabitants of the State of West Virginia and nonresidents are enjoying the recreational value of West Virginia rivers and streams. The tourist trade is of vital importance to the State of West Virginia and the services offered by commercial whitewater outfitters and commercial whitewater guides significantly contribute to the economy of the State of West Virginia. The Legislature recognizes that there are inherent risks in the recreational activities provided by commercial whitewater outfitters and commercial whitewater guides which should be understood by each participant. It is essentially impossible for commercial whitewater outfitters and commercial whitewater guides to eliminate these risks. It is the purpose of this article to define those areas of responsibility and affirmative acts for which commercial whitewater outfitters and commercial whitewater guides are liable for loss, damage or injury.
Exemption from tort liability.
Section 20-3B-3 imposes a standard of care, and a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for failure to conform to that statutory standard is unenforceable. Murphy v. North Am. River Runners, 186 W. Va. 310, 412 S.E.2d 504, 1991 W. Va. LEXIS 222 (1991).
Quoted in
River Riders, Inc. v. Steptoe, 223 W. Va. 240, 672 S.E.2d 376, 2008 W. Va. LEXIS 116 (2008).
Cited in
Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 408 S.E.2d 634, 1991 W. Va. LEXIS 126 (1991).
W. Va. Law Review.
Fahey, “Landlord Liability in West Virginia for Criminal Acts on the Premises,” 98 W. Va. L. Rev. 659 (1996).
§ 20-3B-2. Definitions.
Unless the context of usage clearly requires otherwise:
(a) “Commercial whitewater outfitter” means any person, partnership, corporation or other organization, or any combination thereof, as defined in section twenty-three [§ 20-2-23], article two of this chapter.
(b) “Commercial whitewater guide” means any person as defined in section twenty-three [§ 20-2-23], article two of this chapter.
(c) “Participant” means any person using the services of a commercial whitewater outfitter or commercial whitewater guide on any river, portions of rivers or waters of the State.
Quoted in
Murphy v. North Am. River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504, 1991 W. Va. LEXIS 222 (1991).
§ 20-3B-3.Duties of commercial whitewater outfitters and commercial whitewater guides.
(a) All commercial whitewater outfitters and commercial whitewater guides offering professional services in this State shall provide facilities, equipment and services as advertised or as agreed to by the commercial whitewater outfitter, commercial whitewater guide and the participant. All services, facilities and equipment provided by commercial white-water outfitters and commercial whitewater guides in this State shall conform to safety and other requirements set forth in article two [§§ 20-2-1 et seq.] of this chapter and in the rules promulgated by the commercial whitewater advisory board created by section twenty-three-a [§ 20-2-23a], article two of this chapter.
(b) In addition to the duties set forth in subsection (a) of this section, all commercial whitewater guides providing services for whitewater expeditions in this state shall, while providing such services, conform to the standard of care expected of members of their profession.
Exemption from tort liability.
This section imposes a standard of care, and a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for failure to conform to that statutory standard is unenforceable. Murphy v. North Am. River Runners, 186 W. Va. 310, 412 S.E.2d 504, 1991 W. Va. LEXIS 222 (1991).
Whitewater rafting not governed by maritime law.
In consolidated actions involving wrongful death and negligence arising from a commercial white water rafting accident against a commercial white water rafting outfitter and a guide (defendants), defendants’ petition for a writ of prohibition was granted to the extent of vacating the trial court’s determination that maritime law applied to the case. The trial court erred by determining that maritime law applied to the case as white water rafting, as a matter of law, did not constitute traditional maritime activity and was, therefore, not governed by maritime law. River Riders, Inc. v. Steptoe, 223 W. Va. 240, 672 S.E.2d 376, 2008 W. Va. LEXIS 116 (2008).
Cited in
Pingley v. Perfection Plus Turbo-Dry, LLC, 2013 W. Va. LEXIS 422 (Apr 26, 2013).
§ 20-3B-4.Duties of participants.
(a) Participants have a duty to act as would a reasonably prudent person when engaging in recreational activities offered by commercial whitewater outfitters and commercial whitewater guides in this State.
(b) No participant may:
(1) Board upon or embark upon any commercial whitewater expedition when intoxicated or under the influence of nonintoxicating beer, intoxicating beverages or controlled substances; or
(2) Fail to advise the trip leader or the trip guide of any known health problems or medical disability and any prescribed medication that may be used in the treatment of such health problems during the course of the commercial whitewater expedition; or
(3) Engage in harmful conduct or willfully or negligently engage in any type of conduct which contributes to or causes injury to any person or personal property; or
(4) Perform any act which interferes with the safe running and operation of the expedition, including failure to use safety equipment provided by the commercial whitewater outfitter or failure to follow the instructions of the trip leader or trip guide in regard to the safety measures and conduct requested of the participants; or
(5) Fail to inform or notify the trip guide or trip leader of any incident or accident involving personal injury or illness experienced during the course of any commercial whitewater expedition. If such injury or illness occurs, the participant shall leave personal identification, including name and address, with the commercial whitewater outfitter’s agent or employee.
§ 20-3B-5.Liability of commercial whitewater outfitters and commercial whitewater guides.
It is recognized that some recreational activities conducted by commercial whitewater outfitters and commercial whitewater guides are hazardous to participants regardless of all feasible safety measures which can be taken.
(a) No licensed commercial whitewater outfitter or commercial whitewater guide acting in the course of his employment is liable to a participant for damages or injuries to such participant unless such damage or injury was directly caused by failure of the commercial whitewater outfitter or commercial whitewater guide to comply with duties placed on him by article two [§§ 20-2-1 et seq.] of this chapter, by the rules of the Commercial Whitewater Advisory Board, or by the duties placed on such commercial whitewater outfitter or commercial whitewater guide by the provisions of this article.
(b) The limitations on liability created by this article apply only to commercial whitewater outfitters li-censed under the provisions of article two of this chapter and to commercial whitewater guides who are agents or employees of licensed commercial whitewater outfitters, and only when the commercial whitewater outfitter or commercial whitewater guide is acting within the course of his employment.
Exemption from tort liability.
Section 20-3B-3 imposes a standard of care, and a clause in an agreement purporting to exempt a party from tort liability to a member of the protected class for failure to conform to that statutory standard is unenforceable. Murphy v. North Am. River Runners, 186 W. Va. 310, 412 S.E.2d 504, 1991 W. Va. LEXIS 222 (1991).
Whitewater rafting not governed by maritime law.
In consolidated actions involving wrongful death and negligence arising from a commercial white water rafting accident against a commercial white water rafting outfitter and a guide (defendants), defendants’ petition for a writ of prohibition was granted to the extent of vacating the trial court’s determination that maritime law applied to the case. The trial court erred by determining that maritime law applied to the case as white water rafting, as a matter of law, did not constitute traditional maritime activity and was, therefore, not governed by maritime law. River Riders, Inc. v. Steptoe, 223 W. Va. 240, 672 S.E.2d 376, 2008 W. Va. LEXIS 116 (2008).
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Everyday Kid Phil Gaimon Rides Off the Couch into a Pro Cycling Contract
Posted: May 10, 2014 Filed under: Cycling | Tags: Cycling, Gaimon, Garmin-Sharp, Phil Gaimon, Racing, Sports, United States, x, y, z 1 CommentBoulder, CO, USA – May 6, 2014 – Professional cyclist Phil Gaimon has written a book telling the true story of his unlikely transform
ation from fat kid to professional bike racer. Pro Cycling on $10 a Day: From Fat Kid to Euro Pro, is now available in bookstores, bike shops, and online. Preview Gaimon’s debut book at http://www.velopress.com/phil.
Plump, grumpy, slumped on the couch, and going nowhere fast at age 16, Phil Gaimon begin riding a bicycle with the grand ambition of shedding a few pounds before going off to college. He soon fell into racing and discovered he was a natural, riding his way into a pro contract after just one season despite utter ignorance of a century of cycling etiquette. A few hardscrabble seasons later, Gaimon was offered a contract to race in 2014 for Team Garmin-Sharp, an elite cycling team that competes at the sport’s highest level.
Pro Cycling on $10 a Day is a true story, a guide, and a warning to aspiring racers who dream of joining the professional racing circus. Gaimon’s adventures in road rash serve as a hilarious and cautionary tale of frustrating team directors and broken promises. His education in the ways of the peloton, his discouraging negotiations for a better contract, his endless miles crisscrossing America in pursuit of race wins, and his conviction that somewhere just around the corner lies the ticket to the big time fuel this tale of hope and ambition from one of cycling’s best storytellers.
Pro Cycling on $10 a Day chronicles the racer’s daily lot of blood-soaked bandages, sleazy motels, cheap food, and overflowing toilets. But Gaimon also celebrates the true beauty of the sport and the worth of the journey, proving in the end that even among the narrow ranks of world-class professional cycling, there will always be room for a hardworking outsider.
Pro Cycling on $10 a Day: From Fat Kid to Euro Pro Phil Gaimon Paperback with b&w photographs throughout.
6″ x 9″, 312 pp., $18.95, 9781937715243
Phil Gaimon is a professional cyclist for Team Garmin-Sharp, a writer, and an entrepreneur who retired from laziness and computer games in 2004 in favor of riding a bike to lose weight. On a whim, he started racing and soon discovered that he was a natural. Phil advanced rapidly through the amateur ranks and turned professional in his second full year. He slowly learned the rules and clawed his way to the top of the American pro ranks, joining Garmin-Sharp in 2014. He maintains a website, http://www.Philthethrill.net, where he chronicles his ceaseless pursuit of the best cookies and milk in America, and tweets at http://www.twitter.com/philgaimon.
Can’t wait to read it.
Providence Cyclo-cross Festival Expo ‘Dealer Day’ Seen as Alternative to Interbike
Posted: May 8, 2014 Filed under: Cycling | Tags: Bike Cooperative, Cyclo-cross, Interbike, PROVIDENCE, Providence Rhode Island, Roger Williams Park, x, y, z Leave a comment
Received this email today. Splintering the industry is not good for anyone.
Providence Cyclo-cross Festival Expo Includes ‘Dealer Day’
Event Seen as Affordable Alternative to Interbike
PROVIDENCE, R.I. – (May 6, 2014) – The Providence Cyclo-cross Festival aims to capitalize on its stature as a ‘must race’ event and draw exhibitors and retailers to it’s expanded expo. The newly introduced Dealer Day takes place on Friday, October 3, 2014 and adds an additional incentive for shops and manufacturers to attend the cornerstone of the Holy Week of Cyclo-cross.
“We’re working with The Bike Cooperative and select exhibitors to create a Friday event that focuses on the dealers. Many Northeast shop owners are too busy to leave their shops in September, their last great month before the off-season, to travel to Interbike. We’re offering a cost-effective means for manufacturers to reach them,” said event director Richard Fries. “Conversely, for the shops, we have an event that allows them to load up their staff in a van, drive a few hours to Providence, demo new product, attend some clinics, and maybe jump in a race. And they’re back at their shop in time to open on Saturday morning.”
Affordable display rates, an impeccable venue and a location within a short distance from major metropolitan centers like Boston and New York sweeten the deal.
“We want to offer an expo that is affordable for the bike manufacturers. We want the exhibitors for the energy and excitement they bring to the Festival, not their dollars. Whether you’re coming in with a full trailer or a small booth at the Builders’ Ball, Providence is a great value for all companies, large and small,” said Fries.
Space is limited and the expo is expected to sell out. Discounts are available for early registrants and space is allocated on a first come, first served basis. Pricing and registration are available at jw or Nick Keough at nickeough
ABOUT THE PROVIDENCE CYCLO-CROSS FESTIVAL: Selected as “The Best” of American cyclo-cross by Outside Magazine and as “The 2013 Domestic Event of the Year” by the editors of Cyclocross Magazine, The Providence Cyclo-cross Festival will be held Oct. 3-5, 2014, in historic Roger Williams Park. The internationally sanctioned event has drawn athletes from more than 20 nations. Additional attractions include the Divine Youth initiative, a consumer expo, food courts, the Harpoon Beer Garden, the New England Builders’ Ball, and Gran Fondo New England. For more information visit www.providencecrossfest.com.
May is National Bike Month
Posted: May 6, 2014 Filed under: Cycling, Mountain Biking | Tags: Bike-to-Work Day, Cycling, League of American Bicyclists, May, National Bike Month, Ride of Silence, Workweek and weekend Leave a comment
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Social media has become a powerful tool to spread the word about the joys and benefits of bicycling. So show your love by taking a moment today to upload our May is Bike Month Facebook timeline cover and freshen up your blog or website with a 
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Rare issue this case looked at a release signed by a minor that prevented a suit for his injuries after turning age 18
Posted: May 5, 2014 Filed under: Oregon, Ski Area, Skiing / Snow Boarding | Tags: Age of Majority, Air Chamber, Boarder, Boarding, Disaffirm, Inc., Mt. Bachelor, Mt. Bachelor Ski and Summer Resort, Myles A. Bagley, Oregon, Release, ski area, Ski Resort, Snowboarder, snowboarding, Terrain park 2 CommentsThis decision was just overturned by the Oregon Supreme Court in Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994 on December 18, 20014
The term is disaffirm, the minor must disaffirm the release or contract after reaching age 18 or the release or contract is valid.
Date of the Decision: September 5, 2013
Plaintiff: Myles A. Bagley, individually, Plaintiff-Appellant, and Al Bagley, individually; and Lauren Bagley, individually, Plaintiffs
Defendant: Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort
Plaintiff Claims: (1) concluding that there was no genuine issue of material fact as to whether Bagley ratified, after reaching the age of majority, a release agreement entered into while he was a minor; (2) concluding that the release agreement was not contrary to public policy; and (3) concluding that the release agreement was neither substantively nor procedurally unconscionable.
Defendant Defenses: Release
Holding: for the defendant. The minor took advantage of the benefits of the contract (release) and did not disaffirm the contract upon reaching the age of majority (18).
This is a rare review of release or contract law because the odds are against it. A contract is voidable by the minor when the minor signs the contract. However, if the contract is in effect when the minor reaches the age of majority, the minor can either disaffirm the contract which puts the parties back in the position before the contract was signed or if he or she fails to do that he or she takes advantages of the benefits of the contract and continues to use it the contract is in force.
To determine the age of majority or the age a minor becomes an adult in each state see The age that minors become adults.
The minor signed a season pass release at the defendant ski area. His father signed a minor release and indemnity agreement. Two weeks later and before the plaintiff had started snowboarding he turned 18. Once he started snowboarding, after reaching age 18, he boarded at the defendant’s resort 26 different days and his pass was scanned 119 times.
Going through the terrain park where he seemed to spend most of his time, the plaintiff was injured on a jump which resulted in permanent paralysis.
The minor and his parents sued the resort. The trial court dismissed his complaints after the defendant filed a motion for summary judgment based on the release the minor had signed.
Summary of the case
The appellate court reviewed the facts and pointed several of the facts out repeatedly.
He was also an experienced snowboarder, had signed release agreements at other ski resorts in the past, and had purchased a season pass and signed a release agreement for each of the preceding three years that he spent snowboarding at Mt. Bachelor.
After reaching age 18 the plaintiff used the release 119 times over 26 days during a four month period. Once you affirm a contract, by using it and not disaffirming it, you cannot later disaffirm the contract. A contract is affirmed if the contract is not disaffirmed which requires an act on the part of the plaintiff. Meaning if the minor does not make an affirmative act to disaffirm the release then the release stands.
In Oregon, a former minor may disaffirm a contract within a “reasonable time” after reaching the age of majority, or, conversely, may ratify a contract after reaching the age of majority by manifesting an intent to let the contract stand, “[I]f an infant after reaching the age of majority engages in any conduct that objectively manifests an intent to regard the bargain as binding, the former minor will be held as a matter of law to have ratified the contract.”).
In this case the only disaffirmance occurred two years later when the plaintiff started his lawsuit.
The plaintiff then argued that because he had no knowledge of the power to disaffirm this release he should not be held to his failure to disaffirm. However the court shot this down with the standard statement. “However, we have previously stated that “[i]gnorance of the law is not a basis for not enforcing a contract.“”
The court then reviewed the requirements for a valid release under Oregon law. “[W]hen one party seeks to contract away liability for its own negligence in advance of any harm, the intent to do so must be ‘clearly and unequivocally expressed.”
The public policy argument was also shot down in a very common sense manner.
“[T]here are no public policy considerations that prevent a diving school from limiting liability for its own negligence. The diving school does not provide an essential public service[.]”). A ski resort, like a diving school, primarily offers “recreational activities” (with possible exceptions that do not apply here, e.g., training for search-and-rescue personnel) and does not provide an “essential public service.
The release was also found to not be unconscionable.
[T]he doctrine of unconscionability does not relieve parties from all unfavorable terms that result from the parties’ respective bargaining positions; it relieves them from terms that are unreasonably favorable to the party with greater bargaining power. Oregon courts have been reluctant to disturb agreements between parties on the basis of unconscionability, even when those parties do not come to the bargaining table with equal power. In those rare instances in which our courts have declared contractual provisions unconscionable, there existed serious procedural and substantive unfairness
The court followed up the public policy quote with “…albeit in dictum and in the context of addressing public-policy arguments, suggested that standard-form release agreements in the context of recreational activities are not impermissibly adhesive.”
A recreational activity is not subject to public policy arguments because the signer can:
“…simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable”
“[T]he release from liability is not invalid as a contract of adhesion, because [the] plaintiff voluntarily chose to ski at Mt. Bachelor and the ski resort does not provide essential public services.”
Because it was the plaintiff’s choice to board at the defendants ski area the release did not violate public policy.
When an individual enters a ski shop to buy ski equipment, s/he does not have a need for those goods and services, merely a desire. Should the seller demand exculpation as a condition for the sale of the equipment, the purchaser is free to walk away.
The one misstatement in my opinion which the court also pointed out was language that exempted the release for intentional acts. “THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.” The capitalized print made this statement in the release even standout. The court, found this to be curious and probably was thinking the same way I did, why give the plaintiff’s a way out of the release.
The Oregon Court of Appeals upheld the release as a defense to the claims of the plaintiff.
So Now What?
When a guest enters their date of birth in the information form indicating they are under the age of majority, this always creates a problems because minor’s cannot sign releases. However, if the minor can read the release, even the release is voided by the minor, it can still be used to prove assumption of the risk by the minor.
If the minor is turning the age of majority during the term of the release you can have the minor reaffirm the release or sign a new release after his birthday.
The court repeatedly pointed out how many times the plaintiff had used the release, how many releases at this resort and other resorts the plaintiff had signed before and the experience of the plaintiff. Keep track of this information because it will be valuable in any case showing that the release was an accepted contract for the plaintiff.
Never write in your release the ways the plaintiff can sue you. Here the statement in the release that it was not effective for intentional misconduct is the same as telling the plaintiff to write their complaint to couch the injury as an intentional act on the part of the defendant.
On the good side, the ski area had the minor sign the release, even though the release at the time was of no value. A release signed by a minor might have value later as in this case or might be able to prove assumption of the risk.
The Oregon Supreme Court has just accepted this case for review of this decision. So please learn from this article but do not rely upon it yet. (http://rec-law.us/1jaw8g2)
What do you think? Leave a comment.
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Bagley v. Mt. Bachelor, Inc., 258 Ore. App. 390; 310 P.3d 692; 2013 Ore. App. LEXIS 1080
Posted: May 5, 2014 Filed under: Legal Case, Oregon, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Age of Majority, Air Chamber, Boarder, Boarding, Disaffirm, Inc., Mount Bachelor, Mt. Bachelor, Mt. Bachelor Ski and Summer Resort, Myles A. Bagley, Oregon, Release, ski area, Ski Resort, Snowboard, Snowboarder, snowboarding, Terrain park Leave a commentThis decision was just overturned by the Oregon Supreme Court in Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994 on December 18, 20014
Bagley v. Mt. Bachelor, Inc., 258 Ore. App. 390; 310 P.3d 692; 2013 Ore. App. LEXIS 1080
Myles A. Bagley, individually, Plaintiff-Appellant, and Al Bagley, individually; and Lauren Bagley, individually, Plaintiffs, v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, Defendant-Respondent, and JOHN DOES 1-10, Defendants.
A148231
COURT OF APPEALS OF OREGON
258 Ore. App. 390; 310 P.3d 692; 2013 Ore. App. LEXIS 1080
September 6, 2012, Argued and Submitted
September 5, 2013, Filed
COUNSEL: Kathryn H. Clarke argued the cause for appellant. On the opening brief were Bryan W. Gruetter and Joseph S. Walsh. With her on the reply brief was Lisa T. Hunt.
Andrew C. Balyeat argued the cause for respondent. With him on the brief was Balyeat & Eager, LLP.
JUDGES: Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
OPINION BY: SERCOMBE
OPINION
[**694] [*392] SERCOMBE, J.
Plaintiff Bagley, after suffering serious injuries while snowboarding over a “jump” in defendant Mt. Bachelor, Inc.’s (Mt. Bachelor) “terrain park,” brought this action alleging negligence in the design, construction, maintenance, or inspection of that jump. 1 The trial court granted Mt. Bachelor’s motion for summary judgment, which was based on the affirmative defense of release, and denied Bagley’s cross-motion for partial summary judgment pertaining to that same issue. Bagley appeals, asserting that the trial court erred in (1) concluding that there was no genuine issue of material fact as to whether Bagley ratified, after reaching the age of majority, a release agreement entered into while he was a minor; (2) concluding that the release agreement was not contrary [***2] to public policy; and (3) concluding that the release agreement was neither substantively nor procedurally unconscionable. For the reasons that follow, we agree with the trial court and, accordingly, affirm.
1 For ease of reading, notwithstanding additional named parties (Bagley’s parents and “John Does 1-10”), we refer throughout this opinion to plaintiff “Bagley” and defendant “Mt. Bachelor.”
[HN1] In reviewing a grant of summary judgment, we view the facts, along with all reasonable inferences that may be drawn from them, in the light most favorable to the nonmoving party–here, Bagley on Mt. Bachelor’s motion and Mt. Bachelor on Bagley’s cross-motion. ORCP 47 C; Vaughn v. First Transit, Inc., 346 Ore. 128, 132, 206 P3d 181 (2009). On September 29, 2005, just under two weeks before his 18th birthday, Bagley purchased a “season pass” from Mt. Bachelor. Bagley was a skilled and experienced snowboarder, having purchased season passes from Mt. Bachelor for each of the preceding three years and having classified his skill level as of early 2006, immediately prior to the injury, as “advanced expert.” Upon purchasing the season pass, he executed [**695] a release agreement as required by Mt. Bachelor. That [***3] agreement read, in pertinent part:
“RELEASE AND INDEMNITY AGREEMENT
“IN CONSIDERATION OF THE USE OF A MT. BACHELOR PASS AND/OR MT. BACHELOR’S PREMISES, I/WE AGREE TO RELEASE AND INDEMNIFY MT. BACHELOR, [*393] INC., ITS OFFICERS AND DIRECTORS, OWNERS, AGENTS, LANDOWNERS, AFFILIATED COMPANIES, AND EMPLOYEES (HEREINAFTER ‘MT. BACHELOR, INC.’) FROM ANY AND ALL CLAIMS FOR PROPERTY DAMAGE, INJURY, OR DEATH WHICH I/WE MAY SUFFER OR FOR WHICH I/WE MAY BE LIABLE TO OTHERS, IN ANY WAY CONNECTED WITH SKIING, SNOWBOARDING, OR SNOWRIDING. THIS RELEASE AND INDEMNITY AGREEMENT SHALL APPLY TO ANY CLAIM EVEN IF CAUSED BY NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.
“* * * * *
“THE UNDERSIGNED(S) HAVE CAREFULLY READ AND UNDERSTAND THIS AGREEMENT AND ALL OF ITS TERMS ON BOTH SIDES OF THIS DOCUMENT. THIS INCLUDES, BUT IS NOT LIMITED TO, THE DUTIES OF SKIERS, SNOWBOARDERS, OR SNOWRIDERS. THE UNDERSIGNED(S) UNDERSTAND THAT THIS DOCUMENT IS AN AGREEMENT OF RELEASE AND INDEMNITY WHICH WILL PREVENT THE UNDERSIGNED(S) OR THE UNDERSIGNEDS’ ESTATE FROM RECOVERING DAMAGES FROM MT. BACHELOR, INC. IN THE EVENT OF DEATH OR INJURY TO PERSON OR PROPERTY. THE UNDERSIGNED(S), NEVERTHELESS, [***4] ENTER INTO THIS AGREEMENT FREELY AND VOLUNTARILY AND AGREE IT IS BINDING ON THE UNDERSIGNED(S) AND THE UNDERSIGNEDS’ HEIRS AND LEGAL REPRESENTATIVES.
“BY MY/OUR SIGNATURE(S) BELOW, I/WE AGREE THAT THIS RELEASE AND INDEMNITY AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT AND I WILL BE BOUND BY ITS TERMS THROUGHOUT THIS SEASON AND ALL SUBSEQUENT SEASONS FOR WHICH I/WE RENEW THIS SEASON PASS.
“SEE REVERSE SIDE OF THIS SHEET * * * FOR DUTIES OF SKIERS, SNOWBOARDERS, OR SNOW RIDERS WHICH YOU MUST OBSERVE.”
(Underscoring and capitalization in original; emphases added.) The reverse side of the document detailed the “Duties of Skiers” pursuant to ORS 30.990 and ORS 30.985 and also included printed notification that “Skiers/Snowboarders/Snowriders [*394] Assume Certain Risks” under ORS 30.975–namely, the “inherent risks of skiing.” 2 In addition, because Bagley was not yet 18, his father executed a “minor release and indemnity agreement” (capitalization omitted) that read as follows:
“I HEREBY AGREE TO RELEASE AND INDEMNIFY MT. BACHELOR, INC., ITS OFFICERS AND DIRECTORS, OWNERS, AGENTS, LANDOWNERS, AFFILIATED COMPANIES, AND EMPLOYEES FROM ANY AND ALL CLAIMS FOR PROPERTY DAMAGE, INJURY, OR DEATH WHICH [***5] THE MINOR(S) NAMED BELOW MAY SUFFER OR FOR WHICH HE OR SHE MAY BE LIABLE TO OTHERS, IN ANY WAY CONNECTED WITH SKIING, SNOWBOARDING, OR SNOWRIDING. THIS RELEASE AND INDEMNITY AGREEMENT SHALL APPLY TO ANY CLAIM EVEN IF CAUSED BY [**696] NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.
“BY MY SIGNATURE BELOW, I AGREE THAT THIS MINOR RELEASE AND INDEMNITY AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT AND I WILL BE BOUND BY ITS TERMS THROUGHOUT THIS SEASON AND ALL SUBSEQUENT SEASONS FOR WHICH THIS SEASON PASS IS RENEWED.
“I HAVE CAREFULLY READ AND UNDERSTAND THIS AGREEMENT AND ALL OF ITS TERMS.”
(Capitalization in original; emphasis added.)
2 Oregon has promulgated statutes specifically pertaining to skiing and ski areas. See ORS 30.970 – 30.990. Those statutes, inter alia, set forth the “duties” of skiers, require that ski area operators inform skiers of those duties, establish notice requirements and a statute of limitations pertaining specifically to injury or death while skiing, and provide that those who engage in the sport of skiing accept and assume the risks inherent in that activity.
Less than two weeks after purchasing the season pass and executing the [***6] above-quoted release agreement, Bagley reached the age of majority–turning 18 on October 12, 2005. Thereafter, on November 18, 2005, Bagley began using the pass, on which the crux of the release agreement was also printed:
[*395] “READ THIS RELEASE AGREEMENT
“IN CONSIDERATION FOR EACH LIFT RIDE, THE TICKET USER RELEASES AND AGREES TO HOLD HARMLESS AND INDEMNIFY MT. BACHELOR, INC., AND ITS EMPLOYEES AND AGENTS FROM ALL CLAIMS FOR PROPERTY DAMAGE, INJURY OR DEATH EVEN IF CAUSED BY NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.”
(Capitalization in original; emphasis added.) Further, the following sign was posted at each of Mt. Bachelor’s ski lift terminals:
“YOUR TICKET IS A RELEASE
“The back of your ticket contains a release of all claims against Mt. Bachelor, Inc. and its employees or agents. Read the back of your ticket before you ride any lifts or use any of the facilities of Mt. Bachelor, Inc. If you purchase a ticket from someone else, you must provide this ticket release information to that person or persons.
“Skiers and lift passengers who use tickets at this resort release and agree to hold harmless and indemnify Mt. Bachelor, Inc., its employees and [***7] agents from all claims for property damage, injury or death which he/she may suffer or for which he/she may be liable to others, arising out of the use of Mt. Bachelor’s premises, whether such claims are for negligence or any other theory of recovery, except for intentional misconduct.
“If you do not agree to be bound by the terms and conditions of the sale of your ticket, please do not purchase the ticket or use the facilities at Mt. Bachelor.
“Presentation of this ticket to gain access to the premises and facilities of this area is an acknowledgment of your agreement to the terms and conditions outlined above.”
(Capitalization in original; emphases added.)
Ultimately, beginning on November 18, 2005, after his 18th birthday, Bagley used his season pass to ride Mt. Bachelor’s lifts at least 119 times over the course of 26 days spent snowboarding at the ski area. However, on February 16, 2006, while snowboarding over a manmade jump in Mt. Bachelor’s “air chamber” terrain park, Bagley sustained serious injuries resulting in permanent paralysis.
[*396] On June 16, 2006, approximately four months later, Bagley provided Mt. Bachelor with formal notice of his injury under ORS 30.980(1), which requires [***8] that “[a] ski area operator * * * be notified of any injury to a skier * * * within 180 days after the injury * * *.” Nearly two years after the injury, on February 15, 2008, Bagley brought this action–filing a complaint alleging negligence on Mt. Bachelor’s part in designing, constructing, maintaining, or inspecting the jump on which Bagley was injured. Mt. Bachelor answered, in part, by invoking the affirmative defense of release–pointing to the above-quoted release agreements signed by Bagley and his father prior to the date of injury.
Mt. Bachelor quickly moved for summary judgment on that ground, arguing before the trial court that, by failing to disaffirm the voidable release agreement within a reasonable [**697] period of time after reaching the age of majority, and by accepting the benefits of that agreement and “objectively manifest[ing] his intent to affirm” it (i.e., by riding Mt. Bachelor’s lifts 119 times over 26 days), Bagley had ratified the release and was therefore bound by it. Mt. Bachelor further noted that Bagley “admittedly understood that he [had] entered into a release agreement and was snowboarding under its terms on the date of [the] accident.” Accordingly, Mt. Bachelor [***9] argued, because Bagley had ratified a release agreement that unambiguously disclaimed liability for negligence, there was no material issue of fact as to whether that agreement barred Bagley’s action, and Mt. Bachelor was entitled to judgment as a matter of law. 3
3 Mt. Bachelor additionally argued, as pertinent to this appeal, that the release agreement was neither adhesionary nor contrary to public policy under Oregon law. Specifically, it argued that “skiers and snowboarders voluntarily choose to ski and snowboard and ski resorts do not provide essential public services.”
Bagley then filed a cross-motion for partial summary judgment as to Mt. Bachelor’s affirmative defense of release, arguing that “there [was] no genuine issue of material fact [as to whether] the release [was] void and unenforceable as a matter of law.” Specifically, Bagley argued that he timely disaffirmed the release agreement by (1) notifying Mt. Bachelor of the injury pursuant to ORS 30.980(1), (2) filing his complaint for negligence within the two-year statute of limitations “for injuries to a skier” established by ORS 30.980(3), [*397] and (3) “plead[ing] infancy as a defense to [Mt. Bachelor’s] First Affirmative Defense [***10] on the release executed by [Bagley] while an infant.” Additionally, in response to Mt. Bachelor’s motion, Bagley alternatively argued that “whether [he] disaffirmed the Release within a reasonable time should be determined by the jury as a question of fact” because a material issue of fact existed as to Bagley’s knowledge of both the scope of the release (namely, whether it covered claims for negligence) and “of his right to disaffirm” it (i.e., whether it was voidable). He further argued that the release was contrary to public policy and “both substantively and procedurally unconscionable.”
The trial court agreed with Mt. Bachelor, reasoning that Bagley’s “use of the pass following his eighteenth birthday constitute[d] an affirmation of the contract and release agreement each time the pass was used, a total of 119 times over a period of 26 different days, up to February 16, 2006[,]” and noting that, “[o]nce there [was] an affirmation, [Bagley could] no longer disaffirm the contract.” The court rejected Bagley’s public policy and unconscionability arguments, reasoning that “[s]now riding is not such an essential service which requires someone such as [Bagley] to be forced to sign a [***11] release in order to obtain the service.” Accordingly, having determined that Bagley ratified the release agreement after reaching the age of majority and that “there [was] no basis by which [it could] find the release invalid[,]” the trial court granted summary judgment in Mt. Bachelor’s favor and denied Bagley’s cross-motion for partial summary judgment. Bagley now appeals, reprising his arguments below.
[HN2] On appeal, we review the trial court’s ruling on summary judgment to determine whether we agree “that there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law.” ORCP 47 C; see O’Dee v. Tri-County Metropolitan Trans. Dist., 212 Ore. App. 456, 460, 157 P3d 1272 (2007). [HN3] No genuine issue of material fact exists if, “based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.” ORCP 47 C.
[*398] In his first assignment of error, Bagley asserts that “[t]here is a genuine factual dispute as to whether [his] actions or omissions after reaching the age of majority [***12] were enough to disaffirm or affirm the contract he entered with [Mt. Bachelor] when he was a minor.” More specifically, Bagley argues that “[a] jury could reasonably infer from the facts that merely turning 18 years old and continuing to snowboard was not conclusive evidence of [his] intent to affirm the release [**698] and agree to waive all prospective claims for [Mt. Bachelor’s] negligence.” He argues that a jury “could just as easily find that he promptly disaffirmed the contract” by notifying Mt. Bachelor of the injury approximately four months after it occurred as required by ORS 30.980(1), by filing suit for negligence within the applicable statute of limitations, or by pleading infancy in response to Mt. Bachelor’s affirmative defense of release. 4
4 Bagley alternatively argues that, “even if there is no genuine dispute of material fact, the inferences arising from the facts in this case are susceptible to more than one reasonable conclusion precluding summary judgment.” However, Bagley does not identify any facts that purportedly give rise to inferences susceptible to more than one reasonable conclusion, and, ultimately, his generalized argument to that effect is not materially different [***13] from his argument in support of his first assignment of error. Accordingly, we reject that alternative argument without further discussion.
Mt. Bachelor likewise reprises its arguments below, asserting that Bagley admittedly knew that he was snowboarding under the terms of a release agreement, was aware of the inherent risks of snowboarding (particularly given his advanced, aerial style of snowboarding), and, “[u]nderstanding those risks,” made “an informed decision to execute the release agreement” and “an informed decision to honor the agreement after reaching the age of majority because he wanted to snowboard.” As noted, Mt. Bachelor points to Bagley’s use of the pass after reaching the age of majority–arguing that Bagley ratified the release agreement by riding the lifts “no less than 119 times on 26 days before the subject accident.”
[HN4] In Oregon, a former minor may disaffirm a contract within a “reasonable time” after reaching the age of majority, see Highland v. Tollisen, 75 Ore. 578, 587, 147 P 558 (1915), or, conversely, may ratify a contract after reaching the age of majority by manifesting an intent to let the contract stand, [*399] see Haldeman v. Weeks, 90 Ore. 201, 205, 175 P 445 (1918); [***14] see also Richard A. Lord, 5 Williston on Contracts § 9:17, 166-70 (4th ed 2009) (“[I]f an infant after reaching the age of majority engages in any conduct that objectively manifests an intent to regard the bargain as binding, the former minor will be held as a matter of law to have ratified the contract.”). Further, as particularly relevant here, although what constitutes a reasonable period of time after reaching the age of majority varies widely depending on the circumstances, it is well established that [HN5] ratification of a voidable contract abolishes a party’s power to later disaffirm it. See Brown et ux v. Hassenstab et ux, 212 Ore. 246, 256, 319 P2d 929 (1957) (“The two courses of action are inconsistent and the taking of one will preclude the other.”); Snyder v. Rhoads, 47 Ore. App 545, 553-54, 615 P2d 1058, rev den, 290 Ore. 157 (1980) (similar).
Applying those principles to these facts, we agree with Mt. Bachelor and conclude that no objectively reasonable juror could find that Bagley disaffirmed the release agreement within a reasonable time after turning 18. Rather, the record gives rise to only one reasonable conclusion: By using the season pass at least 119 times over the course [***15] of 26 days between November 18, 2005 and February 16, 2006, Bagley objectively manifested his intent to let the release stand–affirmatively electing to ride the lifts and snowboard under the terms of the agreement (i.e., to accept the benefits of the agreement). His actions after the date of injury–at which time the release had already been ratified and Bagley’s power to disaffirm it thereby defeated–are immaterial. Cf. Highland, 75 Ore. at 587 (former minor’s disaffirmance held valid under circumstances where she had neither taken any affirmative action on the contract nor received any benefit from it); see also Restatement (Second) of Contracts § 85 comment b (1981) (power of disaffirmance may be lost, inter alia, “by exercise of dominion over things received”); Lord, 5 Williston on Contracts § 9:17 at 170 ( [HN6] “[I]f the infant after attaining majority voluntarily receives performance in whole or in part from the other party to the contract, this will amount to a ratification.”). 5
5 Although existing Oregon case law on point is limited, several other states have similarly reasoned that a former minor’s acceptance of the benefits of a contract may constitute a ratification. See, e.g., Jones v. Dressel, 623 P2d 370, 372-74 (Colo 1981) [***16] (holding that a former minor, who had signed a release at age 17 in order to skydive, “ratified the contract, as a matter of law, by accepting the benefits of the contract when he used [the defendant’s] facilities” and further stating that the question whether that former minor’s subsequent actions constituted disaffirmance of the contract was “not relevant” because the former minor had already ratified the contract); Parsons ex rel Cabaniss v. American Family Insurance Co., 2007 WI App 211, 305 Wis 2d 630, 639, 740 NW2d 399, 403 (Wis Ct App 2007), rev den, 2008 WI 19, 307 Wis. 2d 294, 746 N.W.2d 811 (Wis 2008) (former minor ratified release agreement in connection with settlement by retaining funds given as consideration for that release).
[*400] [**699] In reaching that conclusion, we emphasize that Bagley was less than two weeks short of the age of majority when he signed the release agreement and did not begin snowboarding under its terms until well over a month after turning 18. He was also an experienced snowboarder, had signed release agreements at other ski resorts in the past, and had purchased a season pass and signed a release agreement for each of the preceding three years that he spent snowboarding at Mt. Bachelor. See [***17] Haldeman, 90 Ore. at 205 (considering former minor’s maturity and life experience in determining whether contract had been ratified). Moreover, the language of the release was unambiguous, as discussed further below, and that language was both heavily emphasized and omnipresent–having been reproduced on the back of the physical season pass that Bagley was required to carry at all times and in large part on signage at each of the lift terminals to which Bagley was exposed at least 119 times. Indeed, given the exculpatory language on Bagley’s pass and the signage directing his attention to it, it is not implausible that Bagley released Mt. Bachelor from liability for negligence each time that he rode one of the lifts.
Nevertheless, Bagley affirmatively chose to accept the benefits of the agreement after reaching the age of majority and, as noted, continued to do so until the date of injury notwithstanding the pass’s and signage’s continuing reminders of the existence of the agreement and provision of ample exposure to its terms. The following exchange, which occurred during Bagley’s deposition, is particularly illustrative:
“[Mt. Bachelor’s Counsel]: The reason you didn’t go to Mt. Bachelor [***18] and tell them ‘You know what, I signed this agreement when I was 17, now I’m 18, I want to void it, I don’t want to be subject to it,’ what I’m asking you to [*401] acknowledge is the reason you didn’t do that is because you wanted [to] continue [to snowboard] and did continue [to snowboard] under the terms of the season pass agreement.
“[Bagley]: Yes.”
Thus, as the trial court correctly reasoned, when Bagley used the season pass 119 times to gain access to Mt. Bachelor’s lifts, he objectively manifested his intent to regard the release agreement as binding in order to reap its benefits–thereby ratifying it.
However, although he concedes that he was “aware of the release” and “aware of the inherent risks of his sport[,]” Bagley further argues that he did not know that the agreement released Mt. Bachelor from claims related to its own negligence. Nor, he argues, did he know that he had the power to disaffirm the contract upon turning 18. We conclude that such knowledge was not a necessary prerequisite to ratification and, therefore, that Bagley’s arguments as to his subjective understanding of both the release agreement and the law do not affect our determination that “no objectively reasonable [***19] juror could [have] return[ed] a verdict for” Bagley on the issue of ratification. ORCP 47 C.
Oregon subscribes to the “objective theory of contracts.” Kabil Developments Corp. v. Mignot, 279 Ore. 151, 156-57, 566 P2d 505 (1977) (citation omitted); Newton/Boldt v. Newton, 192 Ore. App. 386, 392, 86 P3d 49, rev den, 337 Ore. 84, 93 P.3d 72 (2004), cert den, 543 U.S. 1173, 125 S. Ct. 1365, 161 L. Ed. 2d 153 (2005). Accordingly, although there is undisputed evidence in the record showing that, after reaching the age of majority, Bagley was exposed to language expressly disclaiming liability for negligence on the part of Mt. Bachelor, 6 his subjective understanding [*402] [**700] of that language and the terms of the release agreement is not relevant to the question of whether he ratified that agreement such that it could be enforced against him. See, e.g., NW Pac. Indem. v. Junction City Water Dist., 295 Ore. 553, 557 n 4, 668 P2d 1206 (1983), modified on other grounds, 296 Ore. 365, 677 P2d 671 (1984) ( [HN7] “[F]ailure to read an instrument is not a defense to enforcement.”).
6 For instance, as noted, the season pass that he was required to carry with him at all times expressly disclaimed liability for negligence and drew his attention to that language with the following [***20] heading: “READ THIS RELEASE AGREEMENT[.]” (Capitalization in original.) Further, during his deposition testimony, Bagley confirmed that he had read signage posted prominently on the mountain that stated, as pertinent here, that
“[s]kiers and lift passengers who use tickets at this resort release and agree to hold harmless and indemnify Mt. Bachelor, Inc., its employees and agents from all claims for property damage, injury or death which he/she may suffer or for which he/she may be liable to others, arising out of the use of Mt. Bachelor’s premises, whether such claims are for negligence or any other theory of recovery, except for intentional misconduct.”
(Emphasis added.)
We similarly reject Bagley’s argument regarding his lack of knowledge of the power to disaffirm the release agreement upon reaching the age of majority. In raising that issue, Bagley notes that, “[i]n some states, the former infant’s knowledge, or lack thereof, of his right to disaffirm a contract may be taken into consideration” in assessing whether there has been a ratification or disaffirmance. (Emphases added.) However, we have previously stated that [HN8] “[i]gnorance of [***21] the law is not a basis for not enforcing a contract.” Shea v. Begley, 94 Ore. App. 554, 558 n 3, 766 P2d 418 (1988), rev den, 307 Ore. 514, 770 P.2d 595 (1989) (citation omitted; emphasis added); see also Walcutt v. Inform Graphics, Inc., 109 Ore. App. 148, 152, 817 P2d 1353 (1991), rev den, 312 Ore. 589, 824 P.2d 418 (1992) (the plaintiff was not entitled to avoid contract due to her and her counsel’s “failure to take reasonable measures to inform themselves about her affairs”). Moreover, as Mt. Bachelor correctly points out, Bagley’s argument is drawn from the minority view among other jurisdictions. See Lord, 5 Williston on Contracts § 9:17 at 175-77 (former minor’s ignorance of legal defense of infancy treated as irrelevant in a majority of those jurisdictions that have considered the issue). As aptly stated by the Pennsylvania Supreme Court,
“[t]o require that one must have knowledge of a right to disaffirm in order to make an effective ratification of a voidable contract made in infancy would be inconsistent with the well-established rule that failure to disaffirm such contract within a reasonable time after coming of age terminates the privilege of disaffirmance.”
Campbell v. Sears, Roebuck & Co., 307 Pa 365, 371, 161 A 310, 312 (1932).
In [***22] short, both of Bagley’s ancillary arguments are inconsistent with the objective theory of contracts to which Oregon adheres; we look to the parties’ objective conduct, [*403] and, here, after reaching the age of majority, Bagley objectively manifested his intent to let the contract stand because he “wanted to snowboard[.]”
As noted, in his second assignment of error, Bagley asserts that the release agreement was void as contrary to public policy–focusing primarily on the respective bargaining power of the parties and an asserted “public interest [in] protecting a large number of business invitees, including [Bagley], from the negligence of ski area operators.” 7 (Some capitalization omitted.) [HN9] In evaluating whether a contract disclaiming liability for negligence is contrary to public policy, we assess the language of the agreement under the circumstances in order to determine whether it violates public policy “as applied” to the facts of the particular case. Harmon v. Mt. Hood Meadows Ltd., 146 Ore. App. 215, 217-18, 222-24, 932 P2d 92 (1997) (upholding release agreement disclaiming “any and all liability (including claims based upon negligence) for damage or injury” because the plaintiff’s action [***23] pertained only to ordinary negligence and therefore did not implicate the release’s potential coverage of recklessness or intentional misconduct [**701] (capitalization and boldface omitted)). Specifically, we stated in Harmon that
[HN10] “[t]he question of whether a contract provision is unenforceable as against some general, uncodified public policy must be determined on an ‘as applied’ basis. * * * [A] party seeking to avoid contractual responsibility must demonstrate that enforcement of the contractual provision as to him or her will offend public policy. That is so regardless of whether enforcement of the same contractual provision against other parties in other circumstances would violate public policy.”
Id. at 222 (emphases added); see generally Young v. Mobil Oil Corp., 85 Ore. App. 64, 69, 735 P2d 654 (1987) ( [HN11] “Oregon requires that a public policy be clear and ‘overpowering’ before a court will interfere with the parties’ freedom to contract on the ground of public policy.” (Citation omitted.)).
7 We assume without deciding that the “void as contrary to public policy” doctrine pertaining to this type of case has not been superseded by later-evolved principles concerning substantive unconscionability. [***24] See Restatement at § 208 comment a (unconscionability analysis generally “overlaps” with public-policy analysis).
[*404] Again, the release agreement provided, as pertinent here:
“RELEASE AND INDEMNITY AGREEMENT
“IN CONSIDERATION OF THE USE OF A MT. BACHELOR PASS AND/OR MT. BACHELOR’S PREMISES, I/WE AGREE TO RELEASE AND INDEMNIFY MT. BACHELOR, INC., ITS OFFICERS AND DIRECTORS, OWNERS, AGENTS, LANDOWNERS, AFFILIATED COMPANIES, AND EMPLOYEES (HEREINAFTER ‘MT. BACHELOR, INC.’) FROM ANY AND ALL CLAIMS FOR PROPERTY DAMAGE, INJURY, OR DEATH WHICH I/WE MAY SUFFER OR FOR WHICH I/WE MAY BE LIABLE TO OTHERS, IN ANY WAY CONNECTED WITH SKIING, SNOWBOARDING, OR SNOWRIDING. THIS RELEASE AND INDEMNITY AGREEMENT SHALL APPLY TO ANY CLAIM EVEN IF CAUSED BY NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.”
(Underscoring and capitalization in original; emphasis added.) Although that exculpatory language expressly excludes intentional misconduct from its purview, the same cannot be said with respect to gross negligence or recklessness. However, applying Harmon, because Bagley alleges only ordinary negligence, the failure to expressly exclude gross negligence or recklessness does [***25] not render the agreement contrary to public policy “as applied” to the negligence claim in this case. 146 Ore. App at 222.
Further, in assessing the language of the agreement, our decision in Steele v. Mt. Hood Meadows Oregon, Ltd., 159 Ore. App. 272, 974 P2d 794, rev den, 329 Ore. 10, 994 P.2d 119 (1999), provides substantial guidance. There, the plaintiff in a wrongful death action brought against a ski resort argued that the trial court had erred in granting summary judgment for the ski resort in part because “the terms of the release [were] ambiguous.” Id. at 276. We concluded that the agreement was ambiguous and stated that, [HN12] “[w]hen one party seeks to contract away liability for its own negligence in advance of any harm, the intent to do so must be ‘clearly and unequivocally expressed.'” Id. (quoting Estey v. MacKenzie Engineering Inc., 324 Ore. 372, 376, 927 P2d 86 (1996)). We further elaborated:
[*405] “In determining whether a contract provision meets that standard, the court has considered both the language of the contract and the possibility of a harsh or inequitable result that would fall on one party if the other were immunized from the consequences of its own negligence. The latter inquiry turns on the [***26] nature of the parties’ obligations and the expectations under the contract.”
Id. (citations and internal quotation marks omitted; emphasis added).
We conclude that the release agreement’s language “clearly and unequivocally” expressed Mt. Bachelor’s intent to disclaim liability for negligence. In reaching that conclusion, considering “the nature of the parties’ obligations and the expectations under the contract[,]” id., we note that Bagley admittedly understood that he was engaged in an inherently dangerous activity and that the agreement not only disclaimed liability [**702] for negligence but specifically stated that the “only” claims not released were those for intentional misconduct. Unlike the ambiguous release agreement in Steele, the above-quoted language expressly referred to negligence and was positioned prominently at the beginning of the release agreement; it was not obscured by unrelated provisions. See id. at 274-75 (exculpatory provision obscured by, inter alia, provision addressing skier’s duty to report injuries to the ski resort’s medical clinic). Indeed, we are hard-pressed to envision a more unambiguous expression of “the expectations under the contract”–namely, that in exchange [***27] for the right to use Mt. Bachelor’s facilities to participate in an inherently dangerous activity, Bagley was to release Mt. Bachelor from all claims related to anything other than intentional misconduct (including, of course, negligence).
Moreover, we have previously emphasized that [HN13] a release agreement disclaiming liability for negligence does not necessarily offend public policy where it pertains exclusively to “recreational activities,” and, most prominently, where the business seeking to relieve itself of such liability does “not provide an essential public service[.]” Mann v. Wetter, 100 Ore. App. 184, 187, 187 n 1, 785 P2d 1064, rev den, 309 Ore. 645, 789 P.2d 1387 (1990) (“[T]here are no public policy considerations that prevent a diving school from limiting liability for its own negligence. The diving school does not provide an [*406] essential public service[.]”). A ski resort, like a diving school, primarily offers “recreational activities” (with possible exceptions that do not apply here, e.g., training for search-and-rescue personnel) and does not provide an “essential public service[.]” Id.
Thus, bearing in mind the principles set forth in Mann and the recreational context of this particular case, [***28] 8 because the release agreement “clearly and unequivocally” disclaimed liability for negligence, and because Bagley’s claims relate only to ordinary negligence, under Oregon law the agreement was not contrary to public policy “as applied” to Bagley’s action. Steele, 159 Ore. App. at 276; Harmon, 146 Ore. App. at 222.
8 Regarding that recreational context, we further note that the legislature has enacted statutes indemnifying landowners from liability in connection with “use of the land for recreational purposes[.]” ORS 105.682; see ORS 105.672 – 105.696. Accordingly, we add that, as a general matter, it would be counterintuitive to hold that a contract with the same operative effect as that statutory scheme is void as contrary to public policy.
Finally, we reject Bagley’s third assignment of error, in which, as noted, he asserts that the release agreement was both procedurally and substantively unconscionable. At the outset, we emphasize the substantive rigor historically applied by Oregon courts in assessing claims of unconscionability:
[HN14] “‘[T]he doctrine of unconscionability does not relieve parties from all unfavorable terms that result from the parties’ respective bargaining positions; it [***29] relieves them from terms that are unreasonably favorable to the party with greater bargaining power. Oregon courts have been reluctant to disturb agreements between parties on the basis of unconscionability, even when those parties do not come to the bargaining table with equal power. In those rare instances in which our courts have declared contractual provisions unconscionable, there existed serious procedural and substantive unfairness.'”
Hatkoff v. Portland Adventist Medical Center, 252 Ore. App. 210, 217, 287 P3d 1113 (2012) (quoting Motsinger v. Lithia Rose-FT, Inc., 211 Ore. App. 610, 626-27, 156 P3d 156 (2007)) (emphasis in Motsinger). Further, “each case is decided on its own unique facts[,]” Vasquez-Lopez v. Beneficial Oregon, Inc., 210 Ore. App. 553, 567, 152 P3d 940 (2007), taking into account both the terms of the contract and the circumstances existing when the contract was signed.
[HN15] [*407] In assessing Bagley’s claim of procedural unconscionability, we focus on “the conditions of contract formation” and look to “two factors: oppression and surprise.” Id. at 566-67 (citation and internal quotation marks omitted). More specifically, “[o]ppression arises from an inequality of bargaining power [***30] which results in no real negotiation and an absence of meaningful [**703] choice. Surprise involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the terms.” Id. at 566 (citation and internal quotation marks omitted). Bagley addresses only the former, advancing a generalized argument that the agreement “was a contract of adhesion and there was a disparity in bargaining power.” (Some capitalization omitted.)
As noted, we do not find the release agreement procedurally unconscionable under these circumstances. Although the parties indeed came to the bargaining table with unequal power insofar as Mt. Bachelor required that the release be signed in order to allow Bagley to purchase a season pass, we have, albeit in dictum and in the context of addressing public-policy arguments, suggested that standard-form release agreements in the context of recreational activities are not impermissibly adhesive. See Harmon, 146 Ore. App. at 219 n 4 (citing cases from other jurisdictions and noting their holdings “that exculpatory provisions in ski-related form agreements were not impermissibly adhesive”); Mann, 100 Ore. App. at 187-88 [***31] (noting that “customers have a multitude of alternatives” in dealing with providers of “non-essential service[s,]” even where such providers hold an “economic advantage”). 9 Although we limit our holding to these “unique facts,” we rely in part on those principles in addressing both “oppression” and “surprise” (as well as substantive unconscionability, as set forth below).
9 Many other states, as well as federal courts, have, as Mt. Bachelor points out, “reached the same conclusion.” See, e.g., Chepkevich v. Hidden Valley Resort, L. P., 607 Pa 1, 29, 2 A3d 1174, 1191 (2010) (noting that, in the recreational context, “[t]he signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable”); Silva v. Mt. Bachelor, Inc., No CV 06-6330-AA, *2, 2008 U.S. Dist. LEXIS 55942 (D Or July 21, 2008) (“[T]he release from liability is not invalid as a contract of adhesion, because [the] plaintiff voluntarily chose to ski at Mt. Bachelor and the ski resort does not provide essential public services.”); Grbac v. Reading Fair Co., Inc., 521 F Supp 1351, 1355 (WD Pa 1981), aff’d, 688 F2d 215 (3d Cir 1982) (stock-car [***32] racing company’s standard-form release provision not adhesionary).
[*408] Here, with respect to “oppression,” Bagley was free to choose not to snowboard at Mt. Bachelor, was less than two weeks short of the age of majority when he signed the agreement, was an experienced snowboarder who had previously signed release agreements required by at least two other ski resorts, had signed a release agreement in obtaining a season pass at Mt. Bachelor during each of the preceding three years, and was accompanied by his father (who, as noted, signed a nearly identical agreement disclaiming liability for negligence). Each of those facts contributes to our conclusion that, notwithstanding the parties’ unequal bargaining power, the circumstances of contract formation were not impermissibly oppressive. Bagley and his father were presented with a “meaningful choice[,]” Vasquez-Lopez, 210 Ore. App. at 566, particularly given that, as noted, snowboarding is a recreational activity and Bagley could have simply declined to sign the release without being denied access to an essential public service.
With respect to “surprise,” as evidenced by the unambiguous language of the release agreement, and particularly given [***33] its additional clarification after disclaiming liability for negligence (“THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT”), this was not a situation where the “terms of the bargain [were] hidden” by Mt. Bachelor. Id. To the contrary, the above quoted paragraph pertaining to the skier’s release of claims, including claims for negligence, appeared at the beginning of the release agreement and was highlighted by a centered and underlined introductory heading drawing the skier’s attention to the fact that he or she was signing a release (“RELEASE AND INDEMNITY AGREEMENT”). On those facts, we find no indication of surprise and, coupled with our conclusion above as to oppression, cannot say that the release agreement was procedurally unconscionable.
In further arguing that the release agreement was substantively unconscionable, Bagley asserts that “[t]he Release term of the contract in question is unreasonably [**704] favorable to [Mt. Bachelor], the drafter of the contract and more powerful party.” Further, Bagley argues, the terms of the release “unconscionably shift[ ] the burden to protect [skiers] from [Mt. Bachelor’s] negligent behavior to the public that it invites [***34] upon its premises, including [Bagley].” [HN16] [*409] In assessing a contract for substantive unconscionability, we focus on the terms of the contract itself in light of the circumstances of its formation; ultimately, “[t]he substantive fairness of the challenged terms” is the “essential issue.” Carey v. Lincoln Loan Co., 203 Ore. App. 399, 423, 125 P3d 814 (2005), aff’d on other grounds, 342 Ore. 530, 157 P3d 775 (2007); see Vasquez Lopez, 210 Ore. App. at 566-69.
On these facts, the provision in the release agreement disclaiming liability for negligence was not “unreasonably” favorable to Mt. Bachelor. Carey, 203 Ore. App. at 422. Indeed, the principal Oregon case touching on the issue upheld a provision–albeit on an “as applied” basis in the context of that particular plaintiff’s public-policy argument–that not only disclaimed liability for negligence in connection with skiing but for “any and all liability” (presumably including liability related to gross negligence or intentional misconduct on the part of the ski resort). Harmon, 146 Ore. App. at 217-22 (emphasis added). Moreover, as noted, in Harmon we specifically cited cases from other jurisdictions “holding that exculpatory provisions in ski-related form [***35] agreements were not impermissibly adhesive.” Id. at 219 n 4. Returning to the overarching notion that the terms at issue must be read in light of their recreational context, in one of those cases, the New Jersey Superior Court aptly reasoned as follows:
“When an individual enters a ski shop to buy ski equipment, s/he does not have a need for those goods and services, merely a desire. Should the seller demand exculpation as a condition for the sale of the equipment, the purchaser is free to walk away. This is not so with the consumer of automobile insurance, or the individual who cannot find a place to live during a housing shortage. Unlike the skier, these individuals must face an inability to use their automobile, or the prospect of becoming homeless, if they are not willing to sign on the dotted line and exculpate the provider. The skier merely faces the prospect of a ski-less weekend.”
McBride v. Minstar, Inc., 283 NJ Super 471, 491, 662 A2d 592, 602 (NJ Super Ct Law Div 1994), aff’d sub nom McBride v. Raichle Molitor, USA, 283 NJ Super 422, 662 A2d 567 (NJ Super Ct App Div), rev den, 143 N.J. 319, 670 A.2d 1061 (1995) (emphasis in original). As noted, similar release agreements [*410] in the [***36] context of recreational activities have been upheld (including against claims of unconscionability) in a number of other jurisdictions. See Or App at n 9 (slip op at 20 n 9). Finally, [HN17] ORS 105.682 establishes a public policy in favor of indemnification of landowners where the land is used for, inter alia, recreational purposes. We fail to see how a private contract to the same effect is substantively unfair as a matter of law.
Accordingly, given existing case law and the aforementioned substantive rigor that we apply in assessing claims of unconscionability, see Hatkoff, 252 Ore. App. at 217, we conclude that the terms of Mt. Bachelor’s release were not substantively unconscionable under these circumstances. That is, the inclusion of the release provision did not constitute one of “those rare instances” where the terms of the contract were so “unreasonably favorable” to Mt. Bachelor that they were unconscionable. Id. (emphasis in original); see also Restatement at § 208 comment b (a contract has traditionally been held unconscionable only where “it was such as no man in his senses and not under delusion would make” (citations and internal quotation marks omitted)).
In sum, we conclude [***37] that Bagley ratified the release agreement prior to the date of injury, nullifying his power to later disaffirm it (whether by notice, filing suit, or pleading infancy), and that the agreement–coupled with the language printed on the season pass and signage at the lift terminals–was sufficiently clear as to its application to claims for negligence. We further conclude that Bagley’s lack of knowledge regarding the scope of the unambiguous agreement did not preclude [**705] summary judgment, nor did his lack of knowledge of the power to disaffirm it upon reaching the age of majority. As to whether the release agreement was valid in the first instance, we conclude that, as applied, the release agreement was not contrary to public policy. Nor was the agreement substantively or procedurally unconscionable. Accordingly, no genuine issue of material fact exists as to Mt. Bachelor’s affirmative defense of release, and the trial court did not err in granting summary judgment for Mt. Bachelor and denying partial summary judgment to Bagley on that basis.
Affirmed.
WordPress Tags: Bagley,Bachelor,LEXIS,Myles,Plaintiff,Appellant,Lauren,Plaintiffs,Summer,Resort,Defendant,Respondent,JOHN,DOES,Defendants,COURT,APPEALS,OREGON,September,COUNSEL,Kathryn,Clarke,Bryan,Gruetter,Joseph,Walsh,Lisa,Hunt,Andrew,Balyeat,Eager,JUDGES,Ortega,Judge,Sercombe,Hadlock,OPINION,injuries,terrain,park,action,negligence,construction,maintenance,inspection,judgment,fact,agreement,policy,parents,inferences,ORCP,Vaughn,Transit,skill,injury,Upon,RELEASE,CONSIDERATION,PASS,PREMISES,AGREE,INDEMNIFY,OFFICERS,DIRECTORS,OWNERS,AGENTS,LANDOWNERS,COMPANIES,EMPLOYEES,HEREINAFTER,FROM,CLAIMS,DAMAGE,DEATH,SUFFER,LIABLE,SHALL,CLAIM,INTENTIONAL,MISCONDUCT,READ,UNDERSTAND,TERMS,BOTH,SIDES,DOCUMENT,INCLUDES,DUTIES,SKIERS,SNOWBOARDERS,SNOWRIDERS,PREVENT,UNDERSIGNEDS,ESTATE,DAMAGES,EVENT,PERSON,ENTER,INTO,HEIRS,LEGAL,SIGNATURE,REMAIN,FULL,FORCE,EFFECT,BOUND,THROUGHOUT,SEASON,SUBSEQUENT,SEASONS,RENEW,REVERSE,SIDE,SHEET,RIDERS,OBSERVE,emphases,notification,Assume,Certain,Risks,addition,HEREBY,MINOR,Capitalization,emphasis,statutes,areas,area,operators,requirements,statute,limitations,October,Thereafter,November,crux,LIFT,RIDE,TICKET,USER,RELEASES,AGREES,HOLD,Further,terminals,facilities,information,passengers,tickets,theory,recovery,sale,Presentation,February,chamber,June,operator,complaint,agreements,accident,resorts,infancy,Affirmative,Defense,infant,response,jury,knowledge,scope,affirmation,arguments,basis,Metropolitan,Trans,Dist,manner,juror,verdict,assignment,error,omissions,conclusion,argument,discussion,decision,Highland,Tollisen,Haldeman,Weeks,Richard,Lord,Williston,Contracts,ratification,Brown,Hassenstab,Snyder,Rhoads,Rather,Restatement,Second,dominion,performance,Although,acceptance,Jones,Dressel,Colo,Parsons,Cabaniss,American,Insurance,connection,settlement,life,Moreover,attention,reminders,existence,provision,exposure,Thus,prerequisite,determination,Kabil,Developments,Corp,citation,Newton,Boldt,cert,Indem,Junction,Water,instrument,enforcement,instance,testimony,mountain,Shea,Begley,Walcutt,Inform,Graphics,failure,affairs,jurisdictions,ignorance,Pennsylvania,Supreme,Campbell,Sears,Roebuck,Some,Harmon,Meadows,coverage,Young,Mobil,freedom,doctrine,analysis,Again,Steele,guidance,Estey,MacKenzie,consequences,obligations,expectations,citations,quotation,clinic,Mann,Wetter,exceptions,personnel,context,legislature,purposes,outset,instances,Hatkoff,Portland,Adventist,Medical,Center,Motsinger,Lithia,Rose,Vasquez,Lopez,Beneficial,account,formation,factors,oppression,negotiation,absence,Surprise,extent,adhesion,dictum,adhesive,holdings,customers,multitude,providers,advantage,Many,Chepkevich,Hidden,Valley,agent,Silva,Grbac,Fair,Supp,Here,clarification,situation,paragraph,indication,behavior,Carey,Lincoln,Loan,notion,Jersey,Superior,equipment,goods,Should,seller,exculpation,purchaser,consumer,automobile,shortage,individuals,provider,McBride,Minstar,Super,Raichle,Molitor,inclusion,delusion,whether,neither,snowboarder,three,pursuant,alia,four,months,skier,disaffirm,voidable,adhesionary,snowboard,unenforceable,disaffirmance,signage,exculpatory,didn
Negligence suit over injuries from falling out of a raft that was rented from outfitter. Release was part of raft rental contract.
Posted: May 2, 2014 Filed under: Pennsylvania, Release (pre-injury contract not to sue), Whitewater Rafting | Tags: Ohiopyle, Ohiopyle Trading Post, Raft Rental, Rafting, Release, Whitewater Rafting, Youghiogheny River Leave a commentFederal District court grant’s motion for summary judgment on release language in a rental agreement with multiple signatures from renters on one page. Scary!
Wroblewski v. Ohiopyle Trading Post, Inc., 2013 U.S. Dist. LEXIS 119206
Date of the Decision: August 22, 2013
Plaintiff: Cari J. Wroblewski
Defendant: Ohiopyle Trading Post, Inc.
Plaintiff Claims:
Defendant Defenses: release in raft rental agreement
Holding: for the defendant
The plaintiff had recently gone rafting on the Salt River in Arizona. Two months later she with her friends rented a raft and equipment from the defendant to a raft the Youghiogheny River. The Youghiogheny River is a Class III run although it allegedly borders on Class IV at certain water levels.
Once the water level rises above a certain level the defendant is allowed to operate as a guide service and run river guides with its customers.
While the plaintiff was taking a long time in the restroom, the rest of her group talked to the defendant’s employees about the high water and declined a guided service. The normal price of a guided trip is $60 per person. The rental cost is $20 per person. The defendant offered to add a guide to the trip for $40 per person, a $20 per person discount from the regular price.
After leaving the restroom the plaintiff testified that she was rushed to sign the release and get her “stuff.” The court took note that the plaintiff was not the last person to sign the release. “Plaintiff was not the last person in her group to sign the Rental Agreement, as her signature is the second to last signature on the Rental Agreement.”
After signing the release and getting her gear the plaintiff received a safety briefing and then was sent down the river. During one of the final rapids, the plaintiff fell out of the boat and “was dragged under water and struck her knee on a rock, sustaining serious injuries.”
The case was filed in Federal District Court, which is the trial court, and the opinion is the court’s which was used to grant the defendants motion for summary judgment.
Summary of the case
The court pointed out several issues that the court, and the plaintiff identified. The release started half-way down the page and was titled “Terms and Conditions.” Multiple lines were provided where the parties all signed the same document. Additional legal information was found under section identified as “SAFETY PRECAUTIONS” and “RECOMMENDATIONS.” The overall title of the document was “Rental Agreement.” The court did point out that the font used in the form was small but sufficient.
The plaintiff argued the release was not enforceable because:
…Plaintiff points out that the document was titled “Rental Agreement” and therefore does not provide adequate notice to signors that it is a release of liability. Furthermore, the exculpatory language is placed at the bottom left of the form and not directly above the signature line, is written in small font, and does not appear until paragraph 9 of the form. Plaintiff also argues that no one specifically informed her that she was entering into a contract that would affect her legal rights, and that she was “rushed along” by Defendant’s employees.
The court then went through the cases in Pennsylvania that had thrown the release out. However, in each case this court found the facts were different or the case was not applicable to this one.
The statement of the court as to the relationship between a party signing a release for recreational activities and one for other purposes sets recreational releases apart.
Plaintiff voluntarily chose to engage in the sport of white-water rafting purely for recreational purposes. Plaintiff signed the Release; she was not compelled, as a legal matter, to sign it, but chose to sign it so that she could go on the white-water rafting trip with her group. (“[R]ecreational sporting activities may be viewed differently in the context of exculpatory agreements, as each party is free to participate, or not, in the activity, and, therefore, is free to sign, or not, the release form.”)
The court also took on issues the plaintiff did not identify, which is whether or not the plaintiff attempted to negotiate the release terms. As it has been pointed out several times in other cases, the opportunity or not to negotiate an activity without signing a release or to change a release may void the release.
There is no evidence that plaintiff sought to negotiate the terms of the Release or asked for additional time to read it, and to the extent she was “compelled” it was a compulsion arising solely from her personal desire to meet up with her group.
The court also eliminated the plaintiff’s argument she did not understand what she was signing in one sentence. “Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.” The court stated the “Plaintiff could have requested additional time to read the agreement, or she could have chosen to not sign the Release and not go white-water rafting.”
The court held the release stopped the plaintiff’s claims.
The Release, even when construed against Defendant, clearly spelled out the parties’ intention to release defendant from liability and encompassed the risk of varying water levels and falling out of the raft. Consequently, the Release meets the enforceability test under Pennsylvania law. Plaintiff brings a claim for negligence. Negligence is explicitly encompassed within the Release, and Defendant’s motion for Summary Judgment is granted.
So Now What?
Remember a release that is involved in litigation is one that is poorly written. Well written releases do not end up in front of judges and juries. This court upheld the release but in doing so pointed out several issues that in other jurisdictions or maybe in Pennsylvania with different fact patterns would have held the other way.
First, the document was a rental agreement. It was labeled as such and most of the information the court pointed out was based on rental information. You may be able to combine a rental agreement and a release in one document; however, you should clearly label the document as such.
What was amazing is in the day and age when this accident happened, 2010, that a recreation business was still using a sign-in sheet as a release. You don’t buy a house on the same document as your neighbor used. Why would you risk your business by using a document signed by multiple people that defend against a multi-million dollar lawsuit?
Add to that the print size, the release language divided into three different columns in the document and the plaintiff’s arguments that she was hurried; this is a thank heaven’s decision.
What do you think? Leave a comment.
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Youghiogheny River, Ohiopyle Trading Post, Ohiopyle, Whitewater Rafting, Rafting, Raft Rental, Release,
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May 21 Workshop-Build Skills to Work Collaboratively on Environmental & Natural Resource Management
Posted: May 1, 2014 Filed under: Youth Camps, Zip Line | Tags: x, y, z Leave a commentAs part of the 2014 Network Leadership Training Academy (NLTA – see below for more info), we will be offering a half-day workshop focused on Network Leadership for Environmental and Natural Resource Management
May 21, 2014, 9-11:30am in Denver, CO. 
Network Leadership for Environmental and Natural Resource Management, 9:30-11am, $25: There are growing concerns over how to manage the environment to protect public health, mitigate disasters, and to meet the demands of growing populations for water, food, recreation and energy supplies. Yet developing such networks and sustaining them can be particularly challenging, especially where organizational interests and goals are not aligned or are in conflict. Join Tanya Heikkila in this workshop to learn the organization, design, and characteristics of success of networks for collaborative environmental natural resource management. The lessons from this workshop will draw from an extensive body of research and experience on environmental networks and collaboration, and from the interactions among network participants, to identify practical leadership skills to help overcome some of these challenges.
Tanya Heikkila is an Associate Professor at the University of Colorado Denver, School of Public Affairs. Dr. Heikkila’s research expertise is in institutions for coordinating groundwater and surface water in the western United States, interstate water conflicts and cooperation, the organization of collaborative ecosystem restoration programs, as well as the performance of special purpose governments.
See attached flyer for more information, or go here. Please forward to any colleagues/groups that you think might be interested in this workshop, or the NLTA.
To register for this, and other, workshops, click HERE.
To Find Out More About the Network Leadership Training Academy, see info below, or click here.
More info on the NLTA:
Registration for the 2014 Network Leadership Training Academy is now open!
https://www.regonline.com/networkleadershiptrainingacademy2014
About the 2014 NLTA: Many people today are deeply involved in the network way of working, but are struggling to find tools and a place to build skills and a community for this new way of connecting across boundaries. This workshop provides conversations about network leadership, activities and exercises to share and demonstrate skills and ideas, and practical tools to translate back to practice. The NLTA is a place where public sector leaders gather to learn, share ideas, and develop skills for engaging in collaboration and partnerships across sectors. A particular focus of the NLTA is on engaging community partners both in program activities, but also evaluation and research. We will cover several methodologies and models for accomplishing these goals, including Community Impact Models, Community Based Participatory Research, Systems Building, and Social Network Analysis, among others. Attendees are engaged in this type of work from multiple sectors including Health, Public Health, Education, Environment, Disaster/Emergency Management, Criminal Justice, among other fields. The workshop primary focus is on building, managing, and evaluating effective networks. This year’s academy will be held from May 19-21, 2014 in Denver, CO at the University of Colorado Denver (downtown campus).
What will you do at the NLTA? The agenda for the 2014 NLTA is packed full of opportunities for attendees to share their own experiences and skills, interaction with the leading trainers and thinkers in networks leadership through presentation and consultation, and topic specific workshops to develop a “network of networkers” in your specific field. Each part of the NLTA is led by a recognized leader in the field and will be a variety of small group, breakout, and large group interactions. A summary of the agenda:
Monday, May 19, 11am start:
Networks 101 (Brint Milward)
Building a Network Culture/The Network Way of Working (Janice Popp);
An Evening of “Sharing Our Practice” (attendee presentations/posters highlighting their own work)
Tuesday, May 20, 9-5pm; 5-7pm Reception:
Managing Networks: Network Effectiveness, Structure & Governance (Brint Milward)
The Transfer of Commitment: Leading Successful Collaboration (Darrin Hicks)
Tools and Methods to Evaluate Networks (including Systems Building, CBPR, Social Network Analysis) (Danielle Varda)
Wednesday, May 21, 9-3pm
Pick from a variety of Special Topic Workshops on Network Leadership (morning and afternoon), including but not limited to:
– Network Leadership for Funders with Sandra Mikush
– Network Leadership for Environmental and National Resource Management with Tanya Heikkila
– Network Leadership in the Public Services Sector (Education, Public Health, Healthcare, and more) with Bill Fulton
– Network Leadership Tools and Technologies with Judah Thornewill
– PARTNER: A Tool for Organizational SNA with Danielle Varda
– Skills for Facilitating Networks with Lisa Carlson
– Heroic Improvisation with Mary Tyszkiewicz (http://heroic-improv.com)
To register only for these workshops, click HERE.
For more details about the trainers, click here: http://www.ucdenver.edu/academics/colleges/SPA/About/conference/Pages/Meet-the-Trainers.aspx
For more information about the conference, including travel logistics, click here: http://www.ucdenver.edu/academics/colleges/SPA/About/conference/Pages/default.aspx
To register click here: https://www.regonline.com/networkleadershiptrainingacademy2014
What: Network Leadership Training Academy
When: May 19-May 21, 2014
Where: Denver, CO
Cost for Training*: $600 for all organizations/agencies/companies, $400 for students, $525 per person for a group of 3 or more (Workshops Only range from $25-$100 each)
Included with registration: Lunch all three days, Breakfast Tuesday/Wed Morning, and one dinner.
*Is the cost prohibitive? Discounts and scholarships available. Inquire at rpcg
If you have any questions please email rpcg.
Have a wonderful day!
Sara Sprong
Sara Sprong, MPA
Professional Research Assistant
Research Program on Collaborative Governance
School of Public Affairs
University of Colorado Denver
1380 Lawrence Street, Suite 500 – Denver CO 80217-3364
P: sara.sprong
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2013-2014 In bound ski/board fatalities
Posted: April 30, 2014 Filed under: Ski Area | Tags: Aspen, Crystal Mountain Resort, fatality, Heavenly Resort, Killington, Mount Bachelor, Mount Charleston, Norwood, Resort, Ski, Ski Apache, ski area, Ski Bluewood, Ski Resort, Skier, Snowboard, Snowboarder, Sports, Stratton Mountain Resort, Sugarbush Ski Resort, Sugarloaf, Telluride, United States, Whitefish Mountain Resort, Winter Park, Winter sport, winter sports Leave a commentIt is depressing to start working on this every year. I hope it at some point in time can provide answers rather than news.
This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of March 10, 2014. Thanks.
Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.
Are non-skiing/boarding fatalities that occurred inbounds on the slopes
Fatality while sledding at the Resort is in Green
2013 – 2014 Ski Season Fatalities
| Date | State | Resort | Where | Trail Difficulty | How | Cause | Ski/ Board | Age | Sex | Home | Helmet | Ref | Ref |
| 12/11 | CO | Telluride | Pick’NGad | struck a tree | 60 | M | Norwood CO | No | http://rec-law.us/190al75 | http://rec-law.us/1fchteM | |||
| 12/12 | VT | Killington | Great Northern Trail | Found | 21 | F | PA | No | http://rec-law.us/1csgWCg | ||||
| 12/16 | WA | Crystal Mountain Resort | Tinkerbell | Beginner | Lost control and veered off the trail | Blunt Force Trauma | F | Yes | http://rec-law.us/Jc4MX3 | ||||
| 1/1 | WV | skiing into a tree | M | Opp, AL | http://rec-law.us/1a6nAkQ | ||||||||
| 12/19 | CO | Winter Park | Butch’s Breezeway | Beginner | blunt force injury to the head | 19 | M | Yes | http://rec-law.us/1f3ekSy | ||||
| 12/21 | CA | Heavenly Resort | colliding with a snowboarder and being knocked into a tree | 56 | F | NV | No | http://rec-law.us/JRiP4c | http://rec-law.us/1a7REMW | ||||
| 1/11 | CO | Aspen | Belisimo | Intermediate | hitting a tree | Skier | 56 | M | CO | Yes | http://rec-law.us/1hNbHoz | http://rec-law.us/JTr7sY | |
| 1/11 | MT | Whitefish Mountain Resort | Gray Wolf and Bighorn | Found in a tree well | Skier | 54 | M | CA | http://rec-law.us/1kx1deP | ||||
| 1/11 | VT | Stratton Mountain Resort | Lower Tamarac | Sledding | Sledding | 45 | M | NJ | No | http://rec-law.us/19x4mXb | http://rec-law.us/1aRlxS5 | ||
| 1/14 | NV | Mount Charlteston | Terrain Park | Fall in Terrain Park | Blunt Force Trauma | Boarder | 20 | M | NV | No | http://rec-law.us/1dsDW8B | http://rec-law.us/1dyT1Hc | |
| 1/17 | VT | Killington | Mouse Trap Trail | Striking a tree | Boarder | 23 | M | NY | http://rec-law.us/1dFfY9j | http://rec-law.us/1dKUf0v | |||
| 1/25 | NM | Ski Apache | Intermediate | Struck a Tree | Skier | 23 | F | TX | http://rec-law.us/1n3PCCM | http://rec-law.us/M5qA85 | |||
| 1/25 | WA | Ski Bluewood | Country Road run | Beginner | Found at top of trail | blunt force abdominal injury | Skier | 14 | M | WA | No | http://rec-law.us/1eaGBUM | http://rec-law.us/1b4oewr |
| 1/28 | UT | Deer Valley | Keno Ski Run | Intermediate | hit a tree | Skier | 65 | M | FL | Yes | http://rec-law.us/1eg70Ax | http://rec-law.us/1hRbIVm | |
| 2/1 | VT | Sugarbush Ski Resort | Lower Rim Run and Lower FIS trails | went off the trail and hit a trail sign | broken neck | Skier | 19 | F | http://rec-law.us/1aeVJ3V | http://rec-law.us/1j4jIpF | |||
| 2/4 | ME | Sugarloaf resort | Hayburner | Expert | skiing off a trail into trees | Skier | 21 | M | NY | Yes | http://rec-law.us/1fQtrMz | http://rec-law.us/1b1OkG0 | |
| 2/4 | CA | Heavenly Ski resort | upper Nevada Woods | Expert | Closed area | blunt force trauma | Boarder | 18 | M | Kings Beach, CA | Yes | http://rec-law.us/1byr68d | http://rec-law.us/1b5exDA |
| 2/7 | CO | Beaver Creek | lower section of Beaver Creek | suffered trauma injuries | Skier | 64 | M | St Louis, Mo | http://rec-law.us/1ns4Hvu | ||||
| 2/8 | CO | Keystone Ski Area | Porcupine and Bighorn | Intermediate | crashed into a tree | blunt-force trauma | Skier | 46 | M | Yes | http://rec-law.us/Nph8Oa | ||
| 2/16 | MT | Whitefish Mtn Resort | between Hollwood & Silvertip | fell into treewell | Skier | 48 | M | Calgary, Alberta | http://rec-law.us/1nKj8eh | http://rec-law.us/1clTCu3 | |||
| 2/17 | WA | Stevens Pass | Corona Bowl | Expert | hit head on rock | major trauma | Boarder | 31 | M | No | http://rec-law.us/O48FQH | http://rec-law.us/1oRNQFT | |
| 2/18 | VT | Stowe | Upper Gondolier | hit another skier before sliding into trail sign | Skier | 30 | M | Brooklyn, NY | Yes | http://rec-law.us/1fkn5pt | |||
| 2/19 | WA | Crystal Mountain | Found in tree well | Boarder | 35 | M | Seattle, WA | http://rec-law.us/1ffs2kY | |||||
| 3/5 | PA | Heavenly Valley | collided with a tree | internal bleeding from blunt-force trauma | Boarder | 21 | M | Warren, PA | Yes | http://rec-law.us/PRTn2a | http://rec-law.us/1k4m72J | ||
| 3/10 | CO | Copper Mountain | Vein Glory | Beginner | striking a tree | Boarder | 22 | M | Denver, CO | No | http://rec-law.us/1kJvtTc | ||
| 3/16 | NY | Whiteface Mountain | trail and hit a tree | Boarder | 22 | M | Hemlock, NY | http://rec-law.us/1gFq34F | http://rec-law.us/1mfoli0 | ||||
| 3/18 | CO | Snowmass | Gunner’s View trail | intermediate | collided with a tree | hemorrhagic shock due to pelvic trauma | Boarder | 54 | M | Germany | Yes | http://rec-law.us/OAM3Hn | |
| 3/21 | WA | Mission Ridge Ski & Board Resort | Kiwa run | ski dislodged from its binding | Ski | 47 | M | Seattle, WA | http://rec-law.us/1jreZv1 | ||||
| 3/22 | VT | Stratton Mountain Ski Resort | 91 Trail | Veered off the trial & crashed into a sign | boarding | 16 | M | Boston, MA | http://rec-law.us/1jBxxIX | http://rec-law.us/1oZzuSX | |||
| 3/27 | CO | Keystone Resort | intermediate | lost control & hit a tree | blunt force trauma | Skier | 60 | M | Charlotte, NC | Yes | http://rec-law.us/1dV5lgV | http://rec-law.us/O6FJ9R | |
| 3/28 | CO | Snowmass | Elk Camp Chairlift at the top of Sandy Park | collision with another skier that led to Cohen hitting a tree | multiple injuries | Skier | 45 | M | Cincinnati, OH | Yes | http://rec-law.us/1dHi0co | http://rec-law.us/1dHi0co | |
| 4/1 | WY | Jackson Hole | Pair-a-Chutes ( The Parachutes) | collided with a tree | significant body trauma | Skier | 31 | M | Jackson Hole, WY & PA | http://rec-law.us/1dN158G | http://rec-law.us/1ebWibv | ||
| 4/3 | CO | Snowmass | Cirque Headwall | multiple chest injuries | Skier | 47 | M | Yes | http://rec-law.us/PyekPa | http://rec-law.us/1lA1H1g | |||
| 4/6 | CA | Northstar | Rail Splitter | Advanced | crashing into a tree | Skier | 67 | M | Van Nuys, CA | Yes | http://rec-law.us/1fWUnLK | ||
| 4/6 | NY | Lake Placid | Excelsior | lost control and struck a tree | Boarder | 22 | M | Canandaigua, NY | No | http://rec-law.us/PG1Hls | http://rec-law.us/1mUlNpW |
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.
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Grand Canyon (Glen Canyon actually but the effect will be downriver) Management Alternatives explained
Posted: April 29, 2014 Filed under: Youth Camps, Zip Line | Tags: Glen Canyon, Grand Canyon, Grand Canyon National Park Leave a commentAt long last, this will be your very first peek at the 6 ALTERNATIVES that have been developed for the Glen Canyon 
Dam Long Term Experimental and Management Plan (LTEMP) EIS (so keep scrolling down to the official LTEMP EIS email below). The LTEMP will affect the way the dam is managed and the health of downstream resources for the next 20 years. A REALLY REALLY BIG DEAL!!!
A quick run down of the various alternatives from Sam Jansen (our Adaptive Management Work Group rep) is as follows:
- Alt #1: No Action Alternative
- Business as usual. Same Modified Low Fluctuating Flows (MLFF) as the last 18 years
- Would incorporate the High Flow Protocol & Non-Native Fish EA’s
- Alt #2: Balanced Resource Alternative
- Created by Colorado River Energy Distributors (CREDA)
- All about generating hydropower–a real step backwards
- Includes testing “Hydropower Improvement Flows”–check out the hydrograph in the .pdf (see links from LTEMP email below)
- Restricts High Flow Experiments (HFE) to every other year
- Alt #3: Condition-Dependent Adaptive Strategy (CDAS)
- Seems to be the favorite of the Park and Bureau of Reclamation
- Focused on chub, sediment, trout and hydropower
- Adds greater flexibility in High Flow Experiments
- Alt #4: Resource Targeted Condition-Dependent (RTCD)
- Created by Western Area Power Administration (WAPA), the 7 Basin States & hired scientists
Glen Canyon Dam (Photo credit: Wikipedia)
- Focused on chub and hydropower, with nods to sediment and trout
- Seems to be about doing the minimum for Grand Canyon that the law will allow
- Reduces number of High Flow Experiments
- Alt #5: Seasonally Adjusted Steady Flow (SASF)
- Interesting hydrograph–steady 8,000 Oct through Jan, steady 7,000 July through Sep, with peak flows on May 1st (45K) and at the end of June (25K)
- Spring and Fall High Flow Experiments
- Alt #6: Year-Round Steady Flows
- Not perfectly steady month to month, but centered around about 11,000 cfs
- High Flow Protocol with some modifications
PLEASE READ THE IMPORTANT OFFICIAL LTEMP ANNOUNCEMENT BELOW and closely examine the .pdfs they provide for
important details and hydrographs for each of these alternatives. GCRG and our LTEMP Action Group will be looking at all of these very closely and assessing their merits. We’ll be in touch with you with what we think once we’ve had a chance to wrap our brains around it, in preparation for the release of the Draft LTEMP EIS this fall. This is YOUR RIVER, and Grand Canyon National Park belongs to ALL OF US. Our goal is to get everyone fired up to provide comments!
Six alternatives, including the No-Action Alternative, have been developed for consideration in the Glen Canyon Dam Long-Term Experimental and Management Plan
(LTEMP) Environmental Impact Statement (EIS). The alternatives represent different ways Glen Canyon Dam could be operated under the LTEMP over the next 20 years,
and will serve as the basis of the National Environmental Policy Act (NEPA) assessment to be presented in the LTEMP EIS. At the February 20, 2014, Adaptive
Management Working Group Meeting in Phoenix, Arizona, the LTEMP EIS team presented an overview of the alternatives. This presentation can be downloaded at
ltempeiswebmaster
Please forward this message to any party you feel may
be interested in the LTEMP EIS.
Thanks to the Grand Canyon River Guides Association for getting this information out.
Wisconsin decision has left the status of release law in Wisconsin in jeopardy. Decision also brought in new defenses to releases in the state
Posted: April 28, 2014 Filed under: Health Club, Release (pre-injury contract not to sue), Swimming, Wisconsin | Tags: Fitness Center, Legal guardian, Minnesota, Release, swimming, Swimwest Family Fitness Center, Waiver, Wisconsin 1 CommentThis decision worked hard to defeat not only this release, but all releases in Wisconsin, even though the dissent laid out great arguments why the majority’s decision was not based on any business principle. Even a concurring opinion thought the majority decision was too broad.
Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2
Date of the Decision: January 19, 2005
Plaintiff: Benjamin Atkins, a minor, as the only surviving child of Charis Wilson, deceased, by Alexander Kammer, guardian ad litem
Defendant: Swimwest Family Fitness Center a/k/a Swimwest School of Instruction, Inc., Karen Kittelson, and West Bend Mutual Insurance Company
Plaintiff Claims:
Defendant Defenses: Release
Holding: for the Plaintiff
In this decision, the Wisconsin Supreme Court set release law back in the state. The decision, Atkins v. Swimwest violated a release on numerous grounds that would not hold up in other states. In a decision that may invalidate all releases in Wisconsin, the Court ruled that a release used by a swim club in conjunction with the registration statement was invalid as against public policy.
The plaintiff was the only surviving heir of the deceased and a minor. Consequently, the plaintiff was represented by a guardian ad litem. This is a person appointed by the court to represent the minor. The guardian ad litem may or may not be an attorney.
The decedent went to the defendant’s swimming pool for physical therapy. She entered the pool that day and was observed swimming a sidestroke up and down the length of the pool. Soon thereafter she was observed at the bottom of the pool. She was rescued, and CPR was started. She was transported to a hospital where she died the next day.
The decedent was not a member of the swim club, so she was required to sign a guest registration/release form. The form was titled “Guest Registration.” The form was a five 1/2 inch by five 1/2 inch card with release language that the court characterized as standardized. The card also required written personal information. The waiver information was below the registration information. The waiver language was:
I agree to assume all liability for myself without regard to fault, while at Swimwest Family Fitness Center. I further agree to hold harmless Swimwest Fitness Center, or any of its employees for any conditions or injury that may result to myself while at the Swimwest Fitness Center. I have read the foregoing and understand its contents.
The trial court dismissed the case based on the release. The appellate court certified the case to the Supreme Court of Wisconsin. Certified means they passed the case on up without a decision.
Summary of the case
The court first had a problem with the term fault. The term was described as overly broad. The court explained the term was not defined enough to indicate to the parties (the deceased) the exact legal claims that would be barred by the release. The court found the term fault could also cover intentional acts which the court specifically stated would violate public policy and consequently, void the release.
The court stated, “We have consistently held that “only if it is apparent that the parties, in light of all the circumstances, knowingly agreed to excuse the defendants from liability will the contract be enforceable.” From this, statement appears the court wants the specific possible risks to be enumerated; however, that is an impossible job for most recreational activities.
The Supreme Court then looked at the Public Policy issues. The court called the public policy test a balancing test. The court required a balancing of the needs of the parties to contract versus the needs of the community to protect its members. No other court has balanced the issue of a release for a recreational activity this way. No other decision has surmised that the needs of the community include protecting individual members from freedom to contract. The court did not even consider the issue that the purpose of swimming by the decedent was for medical care: her physical therapy which might have had some public policy basis.
The court examined the release’s language in a two-step process. “First, the waiver must clearly, unambiguously, and unmistakably inform the signer of what is being waived. Second, the form, looked at in its entirety, must alert the signer to the nature and significance of what is being signed.” The court stated the release served two purposes: (1) as a sign-in sheet for the facility and (2) as a release and therefore, did not meet the test they created.
In another statement the court stated, there was nothing conspicuous about the release language in the form. While other courts across the nation have continuously berated release writers about hiding the release language, wanting them to make sure the language was not hidden. Here the court goes one step further and wants the release language to be quite apparent and pointed out to the reader.
In one of the wildest statements in a court decision, the Supreme Court of Wisconsin stated that the decedent did not contemplate drowning.
…Wilson likely would not have contemplated drowning in a four-foot deep pool with a lifeguard on duty, when she signed the guest registration and waiver form. The question is not whether swimming carries with it the risk of drowning, but rather whether Wilson, herself, likely contemplated that risk.
Although you might look at slipping on the wet deck or stubbing your toe as you entered the water, what other possible risks exist in swimming other than drowning?
The next major blow to releases in general was the bargaining argument. The court stated the release was void because there was no opportunity for the decedent to bargain over the release language.
We also conclude that there was no opportunity for Wilson to bargain over the exculpatory language in the guest registration and waiver form.
We held that an exculpatory clause would not be enforced when it is part of a standardized agreement that offers little or no opportunity to bargain.
The term bargain means the court wants possible signors of releases to be able to negotiate the exculpatory language out of the release. As argued by the dissent, (judge who disagrees with the majority opinion) this would require every firm to hire an attorney to negotiate each release with each patron. As a condition of insurance, most providers of recreational insurance and/or health club insurances are requiring that every participant sign a release. If a participant does not sign a release and the release is a policy condition, there will be no insurance available to defend a claim.
Even if you could purchase insurance without using a release, at what cost would not having a release be worth? Based on two cases that have occurred, the person who is injured is the person who did not sign the release. So the cost of not have a patron sign a release is equal to their possible claims. If you want to join the health club and sign a release the cost is $79.00 per month with a $100 membership fee. If you want to join without signing a release, the cost is $89.00 a month with a $5 million-dollar membership fee.
The failure bargain to remove the release language was a violation of public policy. How? The court does not enumerate, nor do the concurrence and the dissent provide much additional information; however, both the concurrence and the dissent recognize the fallacy of the bargain requirement.
In the one point of illumination, court summed up their decision in the last paragraph:
In summary, we conclude that the exculpatory language in Swimwest’s form is unenforceable, since it is contrary to public policy. The waiver of liability language is, first, overly broad and all-inclusive. The use of the word “fault” on the form did not make clear to Wilson that she was releasing others from intentional, as well as negligent, acts. Second, the form served two purposes, guest registration and waiver of liability for “fault,” and thus failed to highlight the waiver, making it uncertain whether Wilson was fully notified about the nature and significance of the document she signed. Finally, Wilson did not have any opportunity to bargain. If she had decided not to sign the guest registration and waiver form, she would not have been allowed to swim. The lack of such opportunity is also contrary to public policy. Accordingly, we reverse and remand, concluding also that Atkins is entitled to pursue his wrongful death claim.
The dissent is a well-thought-out argument about what is good and bad about the release and what is very bad about the majority’s opinion; however, the dissent, a minority of one, has no real value.
So Now What?
The solution to this issue is to use the word negligence. Negligence has a specific legal definition and specifically/legally defines the parameter of the release. The only specific statement from the decision that could be considered directional in writing releases was the statement that the word release should have been used in the form.
Why not? Why risk having your release thrown out because you failed to put in one additional sentence.
The next problem was the release was part of a registration form. The court included this as a reason the release did not meet its public policy test. This problem would have been resolved if the release was on a separate sheet of paper and clearly marked with a heading and/or notice above the signature line that the document was a release.
The court then went on in this vein and stated the exculpatory language in the release should have been highlighted or been more visible to someone signing the release.
From this decision, in Wisconsin you must!
1. Your release must be on a separate and distinct piece of paper.
2. You release must be identified and clearly state it is a release.
3. The release must use the magic word “negligence” to be valid.
4. You need to list all of the possible injuries or risks that can befall the signor of the release.
5. Your release must be read by the parties and there should be a notice in the release that the signor read, understood and signed the release with the intention to give up their right to sue for injuries or death.
If you can, you should see if you can provide:
6. The opportunity for your patron to buy their way out of the release.
7. References to other competitors where a guest may be able to go to have a similar opportunity without signing a release.
8. 8. Make sure your insurance is up to date and adequate for the value of your business and your risk.
Always in any business.
9. Make sure your corporate records are up to date. If you are not incorporated or an LLC get incorporated now!
10. 10. Look into separating assets from operations in separate corporations or LLC’s and divide your business into separate, smaller entities to protect the business.
11. 11. Look into asset protection planning for your personal assets.
 |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
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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By Recreation Law Rec-law@recreation-law.com James H. Moss
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Release is used to prove an activity is hazardous and deny a claim for life insurance. Heli-skiing should have been disclosed as a risk activity or hobby according to the court when buying life insurance.
Posted: April 21, 2014 Filed under: Avalanche, Colorado, Insurance, Skiing / Snow Boarding | Tags: Alaska, Assumption of risk, Buy Sell Agreement, Colorado, Disability Insurance, Health insurance, Heli-skiing, Heliski, Life Insurance, Policy, Premium, Rescission, scuba diving, skiing 4 Comments“Rating up” is a term used to say an insured is a higher than normal risk, and the insurance rate will increase. The amount of the increase is dependent upon the risk. Heli-skiing would have tripled the cost of a life insurance policy. However, not telling the insurance company denied the claim.
West Coast Life Insurance Company. Hoar, 558 F.3d 1151; 2009 U.S. App. LEXIS 5266
Date of the Decision: 2009
Plaintiff: West Coast Life Insurance Company
Defendants: Martha Hoar, as the personal representative of the other Estate of Stephen M. Butts; Telluride Properties, Llc., a Colorado Limited Liability Company; Telluride Properties, Inc., a Colorado corporation; Albert D. Roer, an individual; Polly Lychee, an individual
Plaintiff Claims: (1) breach of contract, (2) bad faith, and (3) violation of the Colorado Consumer Protection Act
Defendant Defenses: Rescission
Holding: for the plaintiff life insurance company
Owners in a business want to make sure the business will survive if one of the owners is disabled or dies. There is also a desire to take care of the family of the deceased. Finally, immediately purchasing the deceased share of the business keeps the business running smoothly without the worry or probate or someone with no business experience from running the business. This usually takes the form of a buy-sell agreement. The agreement sets out the terms on when the contract kicks in, how to value the business and how to pay the estate of the deceased or the disabled owner.
Many times the owners will want to make the purchase of the deceased estate immediate, so the business purchases life insurance on the owners. Upon the death of an insured, the insurance proceeds are used to keep the business going to pay for the ownership of the business from the estate of the deceased.
In this case, the parties created a business and purchased a $3 million-dollar policy on the owners. For large life insurance policies more underwriting, questions are asked and sometimes physicals are required. In this case, the insured owner was asked if he “”[e]ngaged in auto, motorcycle or boat racing, parachuting, skin or scuba diving, skydiving, or hang gliding or other hazardous avocation or hobby.” The insured said he was a scuba diver and skier. At the end of the form the insured had to affirm that all of his answers were full, complete, and true to the best of his knowledge and belief.
The insured was then interviewed by a third party hired to investigate the insured. The insured was asked what he did in his spare time. The insured answered he skied and golfed. He also stated he was into private aviation and scuba diving. At no time did the insured ask any clarifying questions as to what hazardous activities meant.
The insured regularly participated in heli-ski trips in Canada. He had been heli-skiing for at least six years. He purchased a Black Diamond Avalung for his ski trips. The heli-ski operation required the insured to sign a “Release of Liability, Waiver of Claims, Assumption of Risk and Indemnity Agreement.” The heli-ski operation also required avalanche rescue training, helicopter safety training and required the use of avalanche beacons.
During a heli-ski trip, the insured was killed in an avalanche.
The insurance company refused to pay the life insurance benefit because the insured had not been truthful on his application for insurance. The life insurance company sued for rescission. The trial court granted the life insurance company’s motion for summary judgment, and the case was appealed.
Summary of the case
Rescission is the term applied when a contract is unwound, and both parties are placed back in their original position. There must be a legally recognized cause for a court to require rescission. Material breach, or as in this case fraud, can be a cause for a court to rescind a contract.
To win a claim of rescission under Colorado law the insurance company had to prove:
(1) the applicant made a false statement of fact or concealed a fact in his application for insurance; (2) the applicant knowingly made the false statement or knowingly concealed the fact; (3) the false statement of fact or the concealed fact materially affected either the acceptance of the risk or the hazard assumed by the insurer; (4) the insurer was ignorant of the false statement of fact or concealment of fact and is not chargeable with knowledge of the fact; (5) the insurer relied, to its detriment, on the false statement of fact or concealment of fact in issuing the policy.
The court focused on the first and second claims that the deceased made a false statement or concealed a fact and did so knowingly.
The court did a thorough review of all the facts the life insurance company presented, which stated that heli-skiing was a high-risk operation. These facts included the acts of the insured/deceased as outlined above and statements made by the expert witness of the insurance company. One statement which the court found particularly informative was that heli-skier was “… approximately 18,702 times more likely to be killed in an avalanche than an individual skiing inbounds at a ski area.” This statement was then supported by this footnote the court included. “The probability of an avalanche fatality occurring while heli-skiing or snowcat skiing is approximately 1 per 29,000 visits.”
The risk of heli-skiing was then supported in the court’s argument by the fact the deceased had signed a release. “This is especially true where heli-skiers such as Butts were required to sign a waiver explicitly acknowledging heli-skiing was far more dangerous than resort skiing.”
The fact that the deceased had signed the release, purchased a Black Diamond Avalung, and took avalanche and helicopter training showed the activity was dangerous. That was proof of knowledge and intent that heli-skiing was a high-risk activity which his involvement in should have been disclosed to the insurance company.
The next argument was over the fourth element. The court found for this argument the insurance company had to have knowledge that the life insurance policy applicant was not truthful in answer questions.
Consequently, the beneficiary of the insurance policy, the defendants were not able to argue the contract should not be rescinded. The insurance company was granted rescission and did not have to pay the $3 million-dollar policy benefit.
So Now What?
The increase due to heli-skiing would have increased the yearly premium from $4,800 to $12,380. For most people making a living in the outdoor recreation, the basic premium is too much, the increased premium out of reach. Disability insurance can cost more.
Health insurance is probably no longer subject to such rating changes to do the Patient Protection and Affordable Care Act, which is one blessing for those of us making a living in the outdoors.
If you are just starting out, make sure you have good health, life and disability policies. Lying or misrepresenting the risks you take will subject your family to a similar situation. Purchasing the policies before you have gone too far…outdoors, may save you some money.
If you die mowing the lawn or in a car accident, the chances of this occurring are low. The investigation is triggered when you die doing a high-risk activity, and the insurance company finds out you regularly participated in the activity and did not tell them at the time you applied for the policy.
You’ll probably not have to worry about this issue. You’ll be dead.
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West Coast Life Insurance Company. Hoar, 558 F.3d 1151; 2009 U.S. App. LEXIS 5266
Posted: April 21, 2014 Filed under: Colorado, Insurance, Legal Case, Skiing / Snow Boarding | Tags: Colorado, Disability Insurance, Health insurance, Heli-skiing, Insurance, Life Insurance, Policy, Premium, Rescission, scuba diving, Selkirk-Tangiers, skiing Leave a commentWest Coast Life Insurance Company. Hoar, 558 F.3d 1151; 2009 U.S. App. LEXIS 5266
West Coast Life Insurance Company, a Nebraska corporation, Plaintiff – Appellee, v. Martha Hoar, as the personal representative of the other Estate of Stephen M. Butts; Telluride Properties, Llc., a Colorado Limited Liability Company; Telluride Properties, Inc., a Colorado corporation; Albert D. Roer, an individual; Polly Lychee, an individual, Defendants – Appellants.
No. 07-1080
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
558 F.3d 1151; 2009 U.S. App. LEXIS 5266
March 6, 2009, Filed
PRIOR HISTORY: [**1]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. NO. 05-CV-01765-EWN-BNB).
W. Coast Life Ins. Co. v. Hoar, 505 F. Supp. 2d 734, 2007 U.S. Dist. LEXIS 5442 (D. Colo., 2007)
COUNSEL: Blain D. Myhre (Stuart Pack with him on the briefs), Isaacson Rosenbaum P.C., Denver, Colorado, for Defendants-Appellants.
Stephen G. Masciocchi (Lee F. Johnston with him on the briefs), Holland & Hart LLP, Denver, Colorado, for Plaintiff-Appellee.
JUDGES: Before BRISCOE, EBEL, and MURPHY, Circuit Judges.
OPINION BY: MURPHY
OPINION
[*1153] MURPHY, Circuit Judge.
I. INTRODUCTION
West Coast Life Insurance Company (“WCLI”) brought suit in federal district court seeking rescission of an insurance policy based upon an alleged misrepresentation by Stephen Butts. Butts, who participated in heli-skiing on numerous occasions, stated in his insurance application that he did not engage in any hazardous activities. Butts’s estate and intended beneficiaries asserted counterclaims against WCLI alleging: (1) breach of contract, (2) bad faith, and (3) violation of the Colorado Consumer Protection Act. The district court dismissed Defendants’ Consumer Protection Act counterclaim with prejudice. It then granted WCLI’s motion for summary judgment, concluding Butts had knowingly made a false statement of material fact on which WCLI relied [**2] in issuing him the life insurance policy. On appeal, Defendants contend the district court erred in granting summary judgment to WCLI on its rescission claim because genuine issues of material fact exist as to whether: (1) there was a false statement or concealed fact in the Butts application, (2) Butts knowingly made the false statement or concealed the facts, and (3) WCLI was chargeable with the knowledge Butts engaged in heli-skiing. Defendants also appeal the district court’s grant of summary judgment with respect to their bad faith claim. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
II. BACKGROUND
1. Factual Background
In August 2004, Butts (through his company, Defendant Telluride Properties, Inc.), Defendant Albert Roer, and Defendant Polly Lynchee formed a new company, Defendant Telluride Properties, LLC. 1 The three principals entered into a buy-sell agreement requiring each principal to sell his or her interest in the business to the remaining principals in the event of his or her death. The agreement was financed by insurance policies on the lives of each of the three principals. On September 21, 2004, Butts contacted WCLI agent Sharon Evanson by phone to [**3] complete an application for a three million dollar life insurance policy (the “Butts Application”). Evanson read the questions on the application and transcribed Butts’s responses.
1 The other Defendant is Martha Hoar, the personal representative of Butts’s estate.
The fifth question of the Butts Application (“Question 5”) asked if Butts “[e]ngaged in auto, motorcycle or boat racing, parachuting, skin or scuba diving, skydiving, or hang gliding or other hazardous avocation or hobby.” Butts answered the question in the negative. The Butts Application contained a declaration that all statements and answers were full, complete, and true to the best of Butts’s “knowledge and belief.” Butts did not at any point during the call mention he participated in “heli-skiing.” Heli-skiing involves flying by helicopter to the top of a backcountry mountain and skiing down the mountain, usually with the escort of guides.
Alex Chu, a senior life insurance reporter at First Financial Underwriting Services, Inc. (“First Financial”), conducted a telephonic interview with Butts on October 12, 2004. First Financial is an independent, third-party company that, at the request of its insurance company clients, [**4] [*1154] gathers information about the lifestyles and finances of life insurance applicants, typically through telephone interviews. Chu asked Butts what he did for recreation and exercise in his spare time, to which Butts answered he skied and golfed. Chu also asked Butts if he engaged in “any hazardous activities.” Butts stated he was involved only in scuba diving and private aviation as a pilot. Butts did not seek any clarification of this question or voice concerns or confusion as to the meaning of “hazardous activities.” During Chu’s tenure at First Financial, applicants had identified heli-skiing in response to the hazardous activity question.
Under a heading titled “Aviation-Recreation-Driving Record,” Chu’s report to WCLI (the “First Financial Report”) detailed Butts’s piloting experience, briefly noted his scuba diving activities, and stated: Butts “also enjoys skiing and golfing in his spare time. He reported no other recreational or hazardous pastimes in which he is active on a regular basis.”
In October 2004, Mark Youngquist, an underwriter for WCLI, underwrote a three million dollar policy (the “Butts Policy”) insuring Butts’s life. In so doing, Youngquist reviewed the Butts Application, [**5] Butts’s medical records, the First Financial Report, and a questionnaire completed by Butts regarding his aviation activities. Youngquist, who worked as an underwriter since 1995 for other insurance companies, had worked for WCLI for less than a month when he approved the Butts Application. The WCLI underwriting manual, published by reinsurer Swiss Re, does not rate resort skiing as an activity to be factored into the underwriting process. “Heli-skiing,” however, is a rated activity requiring the insured to pay a higher premium. Youngquist never referred to this rating table during the process of underwriting the Butts Policy.
Based on the information before him, Youngquist believed Butts engaged only in non-rated resort skiing. Youngquist made no inquiry into the nature of the “skiing” activity mentioned in the First Financial Report. Youngquist determined the Butts Policy should be issued on a “Standard, Non-Tobacco” rating. 2 On November 5, 2004, WCLI issued the Butts Policy, which expressly incorporated the Butts Application.
2 Neither party addresses the significance, if any, of the disclosure by Butts of his scuba diving activities. We therefore deem it irrelevant.
On January 15, [**6] 2005, Butts traveled to British Columbia with a group of friends for a week of heli-skiing. The group hired heli-skiing operator Selkirk-Tangiers Helicopter Skiing LLP (“Selkirk-Tangiers”). On January 18, 2005, Butts was heli-skiing with his friends when an avalanche broke above them. The avalanche caught Butts, and swept him into some trees. Within minutes, Butts was found dead. He suffered a broken neck as a result of the avalanche.
During her deposition, Butts’s ex-wife testified he took approximately ten to fifteen heli-skiing trips with Selkirk-Tangiers and additional trips to Canada with another heli-skiing operator. Butts took heli-skiing trips to British Columbia with Selkirk-Tangiers every year for at least six consecutive years prior to his application. Each year, Butts had signed a Selkirk-Tangiers “Release of Liability, Waiver of Claims, Assumption of Risk and Indemnity Agreement,” each of which included the following language:
I am aware that wilderness skiing involves risks, dangers and hazards in addition to those normally associated with downhill skiing. Avalanches occur frequently in the alpine terrain used for [*1155] wilderness skiing and may be caused by natural forces or [**7] by skiers. I acknowledge and accept that the [o]perators and their staff may fail to predict whether the alpine terrain is safe for skiing or whether an avalanche may occur. The alpine terrain used for wilderness skiing is uncontrolled, unmarked, not inspected and involves many risks, dangers and hazards in addition to that of avalanche.
* * *
I AM AWARE OF THE RISKS, DANGERS AND HAZARDS ASSOCIATED WITH WILDERNESS SKIING AND I FREELY ACCEPT AND FULLY ASSUME ALL SUCH RISKS, DANGERS AND HAZARDS AND THE POSSIBILITY OF PERSONAL INJURY, DEATH, PROPERTY DAMAGE OR LOSS RESULTING THEREFROM.
Selkirk-Tangiers provides its guests with: (1) avalanche rescue and survival training; (2) helicopter safety training; and (3) specialized equipment such as “avalanche beacons,” which signal to rescuers the location of skiers buried in avalanches. Prior to each of his heli-skiing trips with Selkirk-Tangiers, Butts participated in mock avalanche drills and other onsite, hands-on training on helicopter safety protocols and avalanche rescue and survival. Although not required by Selkirk-Tangiers, Butts also had purchased and used an “Avalung” on heli-skiing trips in 2004 and 2005. An Avalung is a product designed [**8] to provide a few minutes of air should its user become buried in an avalanche.
After receiving notification of Butts’s death, WCLI initiated an investigation. WCLI received evidence indicating Butts had previously participated in heli-skiing trips. In March 2005, WCLI’s chief underwriter, Steven Hetherington, composed an opinion as to the impact of heli-skiing on the risk assumptions for the Butts Policy. Hetherington determined that had Butts disclosed his heli-skiing activities, the Butts Policy would have been rated in the amount of an extra $ 2.50 per $ 1000 of coverage. Marilyn Reed, WCLI’s Vice President of Underwriting, adopted Hetherington’s underwriting opinion.
According to WCLI underwriters, had Butts disclosed his heli-skiing avocation, his annual premium would have almost tripled, rising from $ 4880 to $ 12,380. WCLI’s independent agent, Stuart Bachman, contacted other life insurance companies to determine if they applied an additional rating for heli-skiing. Every carrier Bachman contacted indicated heli-skiing would result in an additional rating of at least $ 2.50 per $ 1000 dollars of coverage.
WCLI’s contestable claims committee met on July 26, 2006, to discuss and evaluate [**9] the Butts Policy claim. The committee considered whether “a reasonable objective person’s interpretation” of Question 5 would have led such a person to disclose a heli-skiing avocation such as that of Butts. The committee did not consider whether Butts was an expert skier, whether he believed heli-skiing was hazardous, or if he had heli-skied previously without incident because it felt such information was irrelevant to its decision. The committee voted unanimously to deny payment under the Butts Policy based upon Butts’s failure to disclose he regularly engaged in heli-skiing.
2. Procedural History
WCLI filed its complaint in the district court seeking: (1) rescission of the Butts Policy pursuant to Colorado law, and (2) a declaration that the Butts Policy was void ab initio and WCLI was thus not liable to Defendants thereunder. In their answer, Defendants asserted state law counterclaims for: (1) breach of contract, (2) bad faith, and (3) violation of the Colorado Consumer Protection Act, Colo. Rev. Stat. §§ 6-1-101 to -115. The district court [*1156] dismissed Defendants’ Consumer Protection Act counterclaim with prejudice.
Both parties moved for summary judgment. The district court granted [**10] WCLI’s motion for summary judgment, concluding: (1) Butts had made a false statement of fact or concealed a fact in his application for insurance because a reasonable person would have understood heli-skiing was a hazardous activity for purposes of Question 5, (2) Butts knew heli-skiing was a hazardous activity and knowingly concealed the fact he engaged in it, (3) the concealment materially affected the risk assumed by WCLI, (4) WCLI was ignorant of the false statement of fact or concealment of fact and was not chargeable with knowledge of the fact, and (5) WCLI relied on Butts’s false statement in issuing the Butts Policy.
On appeal, Defendants contend the district court erred in granting summary judgment to WCLI on its rescission claim because genuine issues of material fact exist as to whether: (1) there was a false statement or concealed fact in the Butts application, (2) Butts knowingly made the false statement or concealed the facts, and (3) WCLI was chargeable with the knowledge Butts heli-skied. Defendants also appeal the district court’s grant of summary judgment with respect to their bad faith claim.
III. DISCUSSION
1. Motion to Strike
In its motion to strike, WCLI contends [**11] this court should not consider certain arguments and evidence raised by Defendants for the first time on appeal. Specifically, in their reply brief, Defendants for the first time offer statistical evidence regarding auto accident fatalities and discuss the Colorado Ski Safety Act requirement that ski resort lift tickets warn of the risk of resort skiing as support for their argument that reasonable minds could differ on whether heli-skiing is a hazardous activity. Defendants ask the court to take judicial notice of the accident statistics. In addition, Defendants argue the Colorado Ski Safety Act cite was properly included in their reply brief in order to rebut an argument raised in WCLI’s answer brief.
[HN1] “Whether an appellate court will for the first time take judicial notice of a judicially notable fact rests largely in its own discretion.” Mills v. Denver Tramway Corp., 155 F.2d 808, 812 (10th Cir. 1946). Defendants offer no explanation for why they did not seek to introduce the auto accident fatality statistics before the district court. In addition, consideration of this evidence for the first time in Defendants’ reply brief denies WCLI the opportunity to contest or rebut the evidence. [**12] Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). We therefore decline to take judicial notice of the auto accident fatality statistics and grant WCLI’s motion to strike these statistics. See Am. Stores Co. v. Comm’r of Internal Revenue, 170 F.3d 1267, 1270 (10th Cir. 1999) ( [HN2] “Judicial notice is not a talisman by which gaps in a litigant’s evidentiary presentation . . . may be repaired on appeal.” (quotation omitted)).
As to the introduction of Colorado’s statutory requirement that ski resort lift tickets warn of the risk of resort skiing, Defendants maintain this evidence was properly introduced for the first time in their reply brief in response to an argument in WCLI’s answer brief. Specifically, it rebuts WCLI’s contention that the requirement that individuals sign a release before engaging in heli-skiing supports the proposition a reasonable person would view heli-skiing as hazardous. While WCLI’s precise argument regarding the release requirement was raised before the district court, the evidence Defendants now seek to introduce to rebut the argument [*1157] was never brought to the attention of the district court. This court has stated [HN3] “[i]n reviewing a grant of summary judgment, our [**13] inquiry is limited to the summary judgment record before the district court when the motion was decided.” Feichko v. Denver & Rio Grande W. R.R., 213 F.3d 586, 593 n.5 (10th Cir. 2000). In addition, as discussed above, [HN4] this court is reluctant to consider evidence raised only in a reply brief, leaving the opposing party no opportunity to challenge its validity or relevance. See Am. Stores Co., 170 F.3d at 1270. We therefore grant WCLI’s motion to strike this evidence.
2. Rescission of the Life Insurance Policy
[HN5] “We review de novo a district court’s grant of summary judgment, viewing the evidence in the light most favorable to the nonprevailing party.” Mullin v. Travelers Indem. Co. of Conn., 541 F.3d 1219, 1222 (10th Cir. 2008). [HN6] “Summary judgment is appropriate if there is no genuine dispute over any material fact, and a party is entitled to prevail as a matter of law.” Id. (quotation omitted). [HN7] Under Colorado law, to avoid a life insurance policy due to misrepresentations in the application, an insurer must prove:
(1) the applicant made a false statement of fact or concealed a fact in his application for insurance; (2) the applicant knowingly made the false statement or knowingly concealed [**14] the fact; (3) the false statement of fact or the concealed fact materially affected either the acceptance of the risk or the hazard assumed by the insurer; (4) the insurer was ignorant of the false statement of fact or concealment of fact and is not chargeable with knowledge of the fact; (5) the insurer relied, to its detriment, on the false statement of fact or concealment of fact in issuing the policy.
Hollinger v. Mut. Benefit Life Ins. Co., 192 Colo. 377, 560 P.2d 824, 827 (Colo. 1977) (footnote omitted). Defendants contend the district court erred in concluding no genuine issue of material fact existed as to the first, second, and fourth elements of the Hollinger standard.
i. The First and Second Hollinger Elements
The first element, “the applicant made a false statement,” is encompassed in the second element, “the applicant knowingly made a false statement.” Id. Because there is significant overlap in the parties’ arguments regarding the first and second elements, we consider the two elements together. Wade v. Olinger Life Insurance Co. holds that [HN8] in determining whether an applicant knowingly made a false statement, a court must look beyond the applicant’s mere knowledge she engaged in the activity [**15] which was allegedly required to be disclosed by the open-ended insurance question. 192 Colo. 401, 560 P.2d 446, 452 (Colo. 1977). Namely, “to protect innocent insurance applicants, an applicant must be reasonably chargeable with knowledge that the facts omitted or misrepresented were within the scope of questions asked on the application.” Id. The court further explained that in the context of answering an insurance application question which calls for a value judgment, “[a] particular misrepresentation . . . must be such that a [r]easonable person would, under the circumstances, have understood that the question calls for disclosure of specific information.” Id. The court elaborated on this standard in Hollinger, a companion case to Wade. Hollinger, 560 P.2d at 827. In Hollinger, the court explained the standard applied in Wade was “whether a reasonable person, with the applicant’s physical or mental characteristics, under all the circumstances, would understand that the question calls for disclosure of specific information.” Id.
[*1158] Question 5 asked Butts if he “[e]ngaged in auto, motorcycle or boat racing, parachuting, skin or scuba diving, skydiving, or hang gliding or other hazardous avocation or [**16] hobby.” WCLI contends Butts’s negative response to Question 5 was unreasonable in light of his yearly heli-skiing vacations. Defendants argue reasonable minds could differ as to whether heli-skiing constitutes a hazardous activity, and thus the question should have been submitted to the jury. Defendants further contend because Butts believed heli-skiing was not a hazardous activity, his response to Question 5 could not have constituted a misrepresentation.
This court must thus decide whether a reasonable person in Butts’s position would know heli-skiing constituted a hazardous activity for purposes of the insurance policy. We agree with the district court that reasonable purchasers of life insurance understand they are agreeing to pay a premium in exchange for the insurer’s promise to pay benefits in the event of death, and thus an insurer would be interested in learning of activities that increase the chance of premature death. Question 5 asks applicants whether they engage in hazardous activities and provides as examples of hazardous activities, skydiving, motorized racing, and scuba diving. A reasonable applicant understands these examples are provided to have the applicant determine [**17] if she engages in activities that might pose risks similar to those posed by the enumerated activities.
WCLI presented evidence indicating a heli-skier is approximately 18,702 times more likely to be killed in an avalanche than an individual skiing inbounds at a ski area. 3 In addition, the heli-skiing operator Butts skied with required its clients to: (1) demonstrate proficiency in avalanche rescue techniques and equipment, (2) undergo training on safety protocols associated with helicopter loading, flight, offloading, and landing, and (3) carry an avalanche beacon while skiing. Such training took place prior to the execution of a waiver and release agreement in which Butts recognized: (1) wilderness skiing involves “risks, dangers and hazards in addition to those normally associated with downhill skiing,” (2) avalanches occur frequently in the alpine terrain used for wilderness skiing, (3) the ski outfitter’s “staff may fail to predict whether the alpine terrain is safe for skiing or whether an avalanche may occur,” and (4) the “alpine [**18] terrain used for wilderness skiing is uncontrolled, unmarked, not inspected and involves many risks, dangers and hazards in addition to that of avalanche.” Additionally, Butts chose to purchase and carry an “Avalung” avalanche emergency air supply while heli-skiing.
3 The probability of an avalanche fatality occurring while heli-skiing or snowcat skiing is approximately 1 per 29,000 visits.
Based on these facts, a reasonable person in Butts’s position would understand Question 5 calls for an applicant to report heli-skiing. As the district court explained, “a reasonable, ordinary person would understand that a sport whose participants equip themselves with ‘avalanche beacons’ and ‘Avalungs’ and then ride in helicopters to the summits of isolated backcountry mountains in order to ski down ungroomed alpine terrain . . . falls along with sky diving, hang gliding, and scuba diving into the commonsense category of ‘hazardous’ activities.” Butts’s status as an experienced heli-skier who engaged in the activity in the past without incident does not change the conclusion it was unreasonable for an individual in his position to answer “no” to Question 5. Butts knew of the great risks of heli-skiing. [**19] Notably, [*1159] Defendants’ expert declined to refute the Utah Avalanche Center’s statement that “[a]lmost all avalanche accidents occur to recreationists who are very skilled at their sport.”
Defendants contend this court should rely on the expert opinion of Vincent Anderson, a certified alpine and ski mountaineering guide who, without citing any statistical evidence, states in a report that, in his opinion, the risks involved in heli-skiing are not unreasonably high and are not greater than those involved in skiing at a resort. This opinion, however, does little to rebut the statistical evidence presented by WCLI demonstrating a heli-skier is approximately 19,000 times more likely to die in an avalanche than someone skiing within bounds at a ski resort. Moreover, it is difficult to see how the subjective opinion testimony of this one individual, lacking any statistical support, does much to support the proposition a reasonable person with Butts’s characteristics would not understand heli-skiing to be a hazardous activity. This is especially true where heli-skiers such as Butts were required to sign a waiver explicitly acknowledging heli-skiing was far more dangerous than resort skiing.
Finally, [**20] Defendants argue that because of the language at the end of the Butts Application, wherein Butts affirmed all answers in the “application [were] full, complete and true to the best of [his] knowledge and belief,” Question 5 solicited a subjective answer and thus could not be a false statement of fact. In support of this argument Defendants cite to Hauser v. Life General Security Insurance Co., 56 F.3d 1330, 1335 (11th Cir. 1995), in which the Eleventh Circuit stated, “[w]here an insurer only requests the disclosure of information to the best of the insured’s ‘knowledge and belief,’ and where the applicant so complies, we will decline to protect the insurer from a risk it assumed by virtue of the contractual language it drafted.” Id. at 1335 (quotation omitted). The court went on to state, however:
[w]hat the applicant in fact believed to be true is the determining factor in judging the truth or falsity of his answer, but only so far as that belief is not clearly contradicted by the factual knowledge on which it is based. In any event, [HN9] a court may properly find a statement false as a matter of law, however sincerely it may be believed. To conclude otherwise would be to place insurance [**21] companies at the mercy of those capable of the most invincible self deception . . . .
Id. (quotation omitted). Here, even assuming Colorado courts would follow the reasoning of Hauser, any belief Butts may have had in the non-hazardous nature of heli-skiing is contradicted by his underlying knowledge of the significant risks inherent in heli-skiing as indicated by the training he was required to undertake, waivers he signed, and equipment he used. We therefore affirm the district court’s conclusion that as a matter of law Butts knowingly made a false statement of fact.
ii. The Fourth Element
In order to satisfy the fourth element of the Hollinger standard, WCLI must demonstrate it was “not chargeable” with the knowledge Butts heli-skied. 560 P.2d at 827. [HN10] Colorado has yet to adopt a test for determining when an insurer is “chargeable with knowledge” of an undisclosed material fact. The parties agree, however, and the district court concluded, the Colorado Supreme Court would endorse the following standard: an insurer is chargeable with knowledge of undisclosed information only where it “had sufficient information that would have put a prudent man on notice and would have caused him to [**22] start an inquiry” which would have uncovered the truth. Major Oil Corp. v. [*1160] Equitable Life Assurance Soc’y, 457 F.2d 596, 604-05 (10th Cir. 1972).
Butts gave a negative response to Question 5, indicating he did not engage in any hazardous activities. Later, however, in response to the question of what he did for recreation and exercise in his spare time during his phone interview with Chu, Butts stated he enjoyed skiing and golfing. In response to Chu’s question about hazardous activities, Butts stated only that he was involved in scuba diving and private aviation as a pilot. WCLI’s underwriter, Youngquist, interpreted Butts’s response that he participated in skiing in his spare time, to mean he engaged in resort skiing. Youngquist had only worked for WCLI for about a month, and was unaware the underwriting manual treated the various kinds of skiing differently, with heli-skiing, but not resort skiing, meriting an increase in the insured’s premium. He did not consult the manual during the course of underwriting Butts’s Policy. Defendants contend that based on Butts’s disclosure that he skied, WCLI had a duty to conduct an investigation into the nature of Butts’s skiing precisely because [**23] of the six classes of skiing identified for differing treatment in the underwriting manual. A reasonably prudent insurer, they argue, would have been put on notice to conduct further investigation into the type of skiing in which Butts engaged.
In deciding to insure Butts, Youngquist had before him: (1) Butts’s negative response to Question 5, (2) Butts’s report to Chu stating the only hazardous activities in which he engaged were scuba diving and private aviation, and (3) Butts’s report to Chu stating he “also enjoy[ed] skiing and golfing in his spare time.” Thus, even if Youngquist had been aware of the classifications in the underwriting manual, such awareness would not have sufficed to put a prudent underwriter on notice he should further investigate a situation where an applicant reports recreational skiing and denies engaging in any hazardous activities. As the district court explained, “[i]f such were the burden of a prudent insurance company, then it would seem that any report of a generally lowhazard recreational activity — e.g., wrestling, juggling, or fishing — would require the insurer to investigate the myriad possible ‘extreme’ variants thereof.” Cf. Am. Eagle Fire Ins. Co. of N.Y. v. Peoples Compress Co., 156 F.2d 663, 667 (10th Cir. 1946) [**24] (stating “honesty, good faith, and fair dealings require [an insured] to communicate [facts material to the risk] to his insurer.”).
Accordingly, [HN11] courts have generally found insurance companies chargeable with knowledge of an undisclosed fact only where it has knowledge of evidence indicating the applicant was not truthful in answering the particular application question at issue. See Major Oil Corp., 457 F.2d at 598-604 (concluding insurer was chargeable with knowledge of applicant’s alcohol problem where another insurance company considering the applicant informed the insurer of the applicant’s ongoing alcohol problem and a report by the Medical Information Bureau received by the insurer prior to issuance of the policy revealed the insured had a drinking habit); Columbian Nat. Life Ins. Co. v. Rodgers, 116 F.2d 705, 708 (10th Cir. 1940) (concluding insurer was chargeable with knowledge that applicant had previously been declined insurance despite applicant’s answer to the contrary where it had in its possession documentation indicating “that the applicant had either been declined or had been rated differently from the established rates, or that some other unusual circumstances were [**25] involved.”). Here, WCLI had no such evidence. Butts twice informed WCLI he did not engage in hazardous activities. Contrary to Defendants’ assertions, Butts’s statement he engaged in the recreational activities of skiing and [*1161] golfing does not constitute evidence or raise a red flag as to his lack of truthfulness in answering the hazardous activities question, as recreational resort skiing is not considered a hazardous activity. See Barciak v. United of Omaha Life Ins. Co., 777 F. Supp. 839, 843 (D. Colo. 1991) (concluding insurer was not chargeable with knowledge of applicant’s heart condition where applicant did not disclose he received medical care for chest pain, extensive medical tests, and had been referred to a cardiologist, but in a subsequent phone interview stated he had seen a doctor for a headache and received a variety of tests, including a chest x-ray and EKG, and the doctor’s diagnosis was unknown.).
We therefore affirm the district court’s conclusion that WCLI has met the Hollinger elements as a matter of law entitling it to summary judgment on its claim for rescission of the Butts Policy.
3. Defendants’ Counterclaim
Defendants’ bad faith counterclaim depends on the existence [**26] of a valid and enforceable insurance policy. Because we affirm the district court’s ruling that Butts’s nondisclosure voided the Butts Policy entitling WCLI to rescission, Defendants’ counterclaim fails.
IV. CONCLUSION
Because WCLI was entitled to rescission of the Butts Policy, the district court’s decision is affirmed.
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Tennessee Whitewater Rafting Professionals
Posted: April 21, 2014 Filed under: Tennessee, Whitewater Rafting | Tags: statute, Tennessee, Tennessee Whitewater Rafting Professionals, Whitewater Rafting Leave a commentTennessee Whitewater Rafting Professionals
Title 70 Wildlife Resources
Chapter 7 Liability for Activities
Part 2 Whitewater Rafting Professionals
GO TO THE TENNESSEE ANNOTATED STATUTES ARCHIVE DIRECTORY
Tenn. Code Ann. § 70-7-201 (2013)
70-7-201. Part definitions.
As used in this part, unless the context otherwise requires:
(1) “Engages in whitewater activity” means whitewater rafting;
(2) “Inherent risks of whitewater activities” means those dangers or conditions that are an integral part of whitewater activities, including, but not limited to:
(A) Water;
(B) Rocks and obstructions;
(C) Cold water and weather; and
(D) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or other, such as failing to follow instructions or not acting within the participant’s ability;
(3) “Participant” means any person who engages in a whitewater activity;
(4) “Whitewater” means rapidly moving water;
(5) “Whitewater activity” means navigation on rapidly moving water in a watercraft; and
(6) “Whitewater professional” means a person, corporation, LLC, partnership, natural person or any other entity engaged for compensation in whitewater activity.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed effective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
70-7-202. Limitations on liability of whitewater professional.
Except as provided in § 70-7-203:
(1) A whitewater professional shall not be liable for an injury to or the death of a participant resulting from the inherent risks of whitewater activities; and
(2) No participant or participant’s representative shall make any claim against, maintain an action against, or re-cover from a whitewater professional, or any other participant for injury, loss, damages, or death of the participant resulting from any of the inherent risks of whitewater activities.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
Section to Section References.
This section is referred to in § 70-7-203.
70-7-204. Warning notice.
(a) Every whitewater professional shall either post and maintain signs that contain the warning notice prescribed in subsection (d) or give the warning in writing to participants. The signs shall be placed in clearly visible locations on or near places where the whitewater professional conducts whitewater activities, if the places are owned, managed, or controlled by the professional.
(b) The warning notice specified in subsection (d) shall appear on the sign in black letters, with each letter to be a minimum of one inch (1”) in height.
(c) Every written contract entered into by a whitewater professional for the purpose of providing professional services, instruction, or the rental of equipment to a participant, whether or not the contract involves activities on or off the location or site of the whitewater professional’s business, shall contain in clearly readable print the warning notice specified in subsection (d).
(d) The signs and contracts described in subsection (a) shall contain the following warning notice:
WARNING
Pursuant to Tenn. Code Annotated title 70, chapter 7, part 2, a whitewater professional is not liable for an injury to or the death of a participant in whitewater activities resulting from the inherent risks of whitewater activities.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
70-7-203. When liability of whitewater professional imposed.
Nothing in § 70-7-202 shall be construed to prevent or limit the liability of a whitewater professional, or any other person if the whitewater professional:
(1) Provided the equipment and knew or should have known that the equipment was faulty, and the equipment was faulty to the extent that it caused the injury;
(2) Owns, leases, rents, or otherwise is in the lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition that was known to the whitewater professional, or person and for which warning signs have not been conspicuously posted;
(3) Commits an act or omission that constitutes gross negligence or willful or wanton disregard for the safety of the participant, and the act or omission caused the injury; or
(4) Intentionally injures the participant.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed effective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
Section to Section References.
This section is referred to in § 70-7-202.
70-7-205. Written waivers, exculpatory agreements and releases.
Nothing in this part shall modify, constrict or prohibit the use of written waivers, exculpatory agreements or releases. This part is intended to provide additional limitations of liability for whitewater professionals, whether or not such agreements are used.
HISTORY: Acts 2012, ch. 862, § 1.
NOTES: Compiler’s Notes.
For the Preamble to the act concerning the limitation of liability of those involved in whitewater activities, please refer to Acts 2012, ch. 862.
Former part 2, §§ 70-7-201 — 70-7-204 (Acts 2004, ch. 952, § 1), concerning white water rafting, was repealed ef-fective May 17, 2005, by Acts 2005, ch. 169, § 1, which also enacted present part 2, §§ 70-7-201 — 70-7-207, in its place.
Former Part 2, §§ 70-7-201 — 70-7-208 (Acts 2005, ch. 169, § 1), concerning the Tennessee White Water Rafting Responsibility Act, was repealed by Acts 2005, ch. 169, § 2, as amended by Acts 2007, ch. 85, § 1, effective July 1, 2010.
Effective Dates.
Acts 2012, ch. 862, § 2. May 1, 2012.
Win Four Tickets to the Pro Challenge Stage of Your Choice: Enter the National Poster Contest by April 18th
Posted: April 20, 2014 Filed under: Cycling | Tags: Bike Race, Bike Racing, Cycling, Peter Sagan, Tejay Van Garderen, USA Pro Challenge Leave a comment
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If you throw a throwbag incorrectly (yes there is now a right way and wrong way) that can be used to sue you. It used to be the correct way was the swimmer got the rope; incorrect way swimmer missed the rope.
Posted: April 16, 2014 Filed under: Paddlesports | Tags: American Society of Testing & Material, ASTM, Guide, Paddlesports, Personal Flotation Device, Raft guide, Rescuer, Search and Rescue, Swiftwater rescue, Throw bag, Throw Rope, Throwbag, Water Rescue, Water Rescuer, Whitewater Guide 1 CommentYo! Raft guides, ever been sued? New ASTM standard will now make that possible!
Well meaning, hardworking volunteers have no idea how they are helping to create lawsuits but here is the perfect example.
ASTM F1730 – 96(2014)
Standard Guide for Throwing a Water Rescue Throwbag
Active Standard ASTM F1730 | Developed by Subcommittee: F32.02
Book of Standards Volume:13.02
Here is how this standard is explained.
Significance and Use
3.1 This guide establishes a recommended procedure for a throwing rescue to ensure the safety of all water rescuers who may be involved in rescue techniques at a water rescue emergency.
3.2 This water rescue technique can be utilized from land, boat, or any stable platform.
3.3 All persons who are identified as water rescuers shall meet the requirements of this guide.
3.4 This guide is intended to assist government agencies, state, local, and regional organizations; fire departments; rescue teams and others who are responsible for establishing a minimum performance for personnel who respond to water emergencies.
3.5 The procedure outlined in the document may vary with the number and type of victims, and water conditions.
1. Scope
1.1 This guide covers the recommended procedures for throwing a water rescue throwbag.
1.2 This guide is one in a series of water rescue techniques for the water rescuer.
1.3 This standard does not purport to address all of the safety concerns, if any, associated with its use. It is the responsibility of the user of this standard to establish appropriate safety and health practices and determine the applicability of regulatory limitations prior to use.
Does this apply to raft guides? I would say yes.
Is a raft guide a “water rescuer” who may be involved in rescue techniques at a water rescue emergency.” If so you have to meet the requirements of this guide.
Do you know the name of a group of people who meet this definition? “…others who are responsible for establishing a minimum performance for personnel….” They are called a jury.
Let’s see how this is a messed up idea.
You were a high school quarterback with a good arm. You can throw a throwbag just like a football with great accuracy.
You are right-handed and standing on shore next to a rock wall. There is not room to throw the throwbag underhanded.
You are on a 12’ raft in the Royal Gorge on the Arkansas River. Does the definition of 3.2, which describes a boat as stable apply to you? Since your boat is not stable should you knot use your throwbag? Are you allowed to throw any way you can, if you are not stable?
Seriously, why is someone writing these things? Can’t they see how broadly this is written and how much damage it will do?
Look, someone is in the river it doesn’t matter if you are throwing the bag backwards, blindfolded standing on one leg in a pink tutu. If you get the rope to the swimmer, that was the correct way!!!
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2014 Recreation Law (720) Edit Law
Email: Rec-law@recreation-law.com
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Twitter: RecreationLaw
Facebook: Rec.Law.Now
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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A climbing wall or a rope’s course are structures. The components already have ASTM standards the sole issue is whether or not they were put together properly.
Posted: April 15, 2014 Filed under: Challenge or Ropes Course, Climbing Wall, Zip Line | Tags: ASTM, ASTM International, Building, challenge course, Climbing, Climbing Wall, Contractor, Engineer, Inspections, Recreation, Ropes course Leave a commentOperations need special reviews, but the structure is nothing that different from the building it is in or close too.
I’m always asked to recommend a person to check out a ropes course or a climbing wall. These people are looking for someone who may be self-appointed, maybe knowledgeable, (or maybe not) a person who makes a living check these.
I rarely refer them to someone with that title in the industry. I first ask them if a local contractor or engineer as ever looked at their course.
The structures have a different purpose than the carpenter or engineers are used to, but the construction should not be.
We keep forgetting that climbing walls and rope’s courses are just structures no different from a building. Each of the components has an ASTM standard. An Engineer or contractor can check to see if it was constructed properly and what needs to be done to get it up to speed.
We forget that the foundation of any building or anything attacked to the building is engineering.
By whom and how often should you have your course inspected?
Any time you feel insecure about your course or wall or your insurance company requires it.
Who should inspect your course or wall?
An engineer or contract should inspect your course at least every couple of years or as the engineer or contractor tells you. You can bring in someone with the industry credentials in the other years or with them. You can have someone come in and look at your operation anytime.
I tell my clients to find another operator and trade days. Go check out their course on one day and have them check out your course on another day. That will spot issues you may have, and you probably will learn some new ideas. No use having “inspectors” only who knows new ways of doing things.
I would suspect that if you are part of a larger organization, a college, university or camp that the company or college engineer will tell you when and how often they want the structure inspected.
A bolt is a bolt, whether it holds up a wall or a climbing wall.
What do you think? Leave a comment.
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#RecreationLaw, #Recreation-Law.com, #OutdoorLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #law, #TravelLaw, #JimMoss, #JamesHMoss, #Tourism, #AdventureTourism, #Rec-Law, #RiskManagement, #CyclingLaw, #BicyclingLaw, #FitnessLaw, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Good Samaritan, Samaritan, First Aid, Climbing Wall, Ropes Course, Challenge Course, Inspections, Engineer, Contractor,
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