New Mexico interpretation of the New Mexico Ski Safety Act for injuries a beginner received leaving a ski lesson
Posted: January 27, 2014 Filed under: Assumption of the Risk, New Mexico, Ski Area, Skiing / Snow Boarding | Tags: American Home Assurance Corporation, Assumption of risk, George Philippi, Inc., James Booth, Lawrence Gottschau, New Mexico, New Mexico Ski Safety Act, Olive Bolander, Sipapu, Sipapu Recreation Development Corporation, ski area, ski lesson, Ski Resort, skiing, United States district court 1 CommentI’m not sure why everyone needs to test skier safety acts. Here, the plaintiff admitted he could not ski, left the ski lesson and skied down the hill injuring him. So he sues the ski area?
Philippi v. Sipapu, Inc., 961 F.2d 1492; 1992 U.S. App. LEXIS 6973
Plaintiff: George Philippi
Defendants: Sipapu, Inc., a New Mexico corporation; Sipapu Recreation Development Corporation, a New Mexico corporation; and their employees, Lawrence Gottschau, James Booth, and Olive Bolander; and American Home Assurance Corporation
Plaintiff Claims: negligence and violation of the New Mexico Ski Safety Act
Defendant Defenses: New Mexico Ski Safety Act and statutory assumption of the risk
Holding: for the defendants
This is a pretty simply case. The plaintiff is a body builder. He took a ski lesson from the defendants and was not good at skiing. He was unable to master turning or other maneuvers and fell repeatedly during the lesson. The plaintiff told his instructors to stop the lesson because he was frustrated and tired. Allegedly following the instructor’s suggestions he skied down the hill into a funnel where he fell and was injured his right leg and knee.
The plaintiff sued in Federal District Court, and his claims were dismissed based on a motion for summary judgment. He appealed to the Tenth Circuit Court of Appeals. New Mexico is part of the Tenth Circuit, one of the appellate courts in the federal system based in Colorado. Consequently, this court is familiar with skiing.
Summary of the case
The plaintiff argued two issues on his appeal. First, the lower court misconstrued and misapplied the doctrine of primary assumption of the risk as set forth in the New Mexico Ski Safety Act. His second argument was the act incorporates comparative negligence principles, and thus the act cannot act as a complete bar to his recovery.
The court looked at the first claim and held the New Mexico Ski Safety Act imposes no duty on part of the ski area to protect the plaintiff, a novice skier, from the “inherent perils and obstacles posed by the terrain of a narrow, steep and ungroomed ski slope.”
The New Mexico Ski Safety Act states that a skier “accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary.” The skier assumes the risk of skiing and the legal responsibility of any injury to person or property from skiing. The act then lists the risks the skier assumes, as most acts do.
§ 24-15-10. Duties of the skiers
B. A person who takes part in the sport of skiing accepts as a matter of law the dangers inherent in that sport, insofar as they are obvious and necessary. Each skier expressly assumes the risk of and legal responsibility for any injury to person or property, which results from participation in the sport of skiing, in the skiing area, including any injury caused by the following: variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees or other forms of forest growth or debris; lift towers and components thereof, pole lines and snow-making equipment which are plainly visible or are plainly marked in accordance with the provisions of Section 24-15-7 NMSA 1978; except for any injuries to persons or property resulting from any breach of duty imposed upon ski area operators under the provisions of Sections 24-15-7 and 24-15-8 NMSA 1978. Therefore, each skier shall have the sole individual responsibility for knowing the range of his own ability to negotiate any slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner, which may cause or contribute to the injury of anyone.
The plaintiff argued the risks he encountered were not obvious to him because he was a novice skier.
Philippi’s complaint alleges that the defendants were aware of Philippi’s difficulties in mastering even the simplest skiing maneuvers, the defendants knew of “particular hazards or dangers,” and they knew or should have known that Philippi was likely to injure himself if “allowed to continue” down the slope.
The plaintiff argued the ski area had a duty to warn him of obstacles in the lower portion of the slope. The plaintiff argued the obstacles were not plainly visible to him as a novice skier and created hazards to him and the skiing public. The Act imposes an affirmative duty on ski areas to warn or “correct particular hazards or dangers known to the operator where feasible to do so.”
However, the court found that allegations alone are not enough to proceed with his argument. “The party resisting [summary judgment] may not rest on the bare allegations or denials of his pleadings. Rather he must produce some evidence showing a genuine issue for trial.”
However, allegations alone are not enough to sustain an argument and a motion for summary judgment. The plaintiff must have more. Here the court said he needed to identify particular hazards or dangers which the defendant knew about and failed to warn the plaintiff about.
The second issue was the statute incorporated the comparative negligence statute of New Mexico and therefore, could not act as a complete bar to the plaintiff. If you remember comparative negligence, it states that the defense of assumption of the risk is gone. Instead of a plaintiff assuming the risk and his claims being barred, the jury determines how much of the plaintiff’s acts caused his injuries and assigns a percentage of fault to the plaintiff and the defendant. If the defendant’s degree of fault is greater than the plaintiff’s that percentage of fault is applied to the total damages, and the plaintiff takes that percentage of the money as a judgment.
By arguing comparative negligence applies here; the plaintiff is arguing that his case must, by law be heard by a jury to apply the percentage of fault. However, the court found that the statute did not require the use of comparative negligence because the statute protected the ski area from liability. The plaintiff could still assume the risk of his injuries and thus be barred from suing.
So Now What?
The plaintiff argued that the ski area “ski instructor’s manual” failed to point out the need to warn students of dangers and alert them to safety issues. It is interesting to use a ski area manual to try an argument from the lack of a point to train in the ski area manuals.
This argument in the case is what caught my attention. In many cases, we write manuals to help instruct employees to work and keep our guests safe. Here, that information in the manual might have changed the outcome of this case.
If the point had been in the manual, then would the ski area been liable if they had not pointed out the “hazards” on the slope to the plaintiff?
However, you need to think about that issue. How big would a manual need to be to instruct your employees to point out the hazards of the sport or the slope? What about the hazards of any outdoor recreation program or business. Would you have to identify every root crossing a trail or all the branches that may hang low for your taller guests?
The New Mexico Ski Safety Act is well-written and specifically lists the risk a skier assumes. It does not require a balancing test, only one answer. Did the injury the plaintiff receives occur because of the risks the plaintiff assumed stated in the act? In this case, he did. Nor did the statute require the ski area to do any more than identify or correct those risks that could not be seen by a skier of average ability and skill.
For more on comparative negligence see You have to be prepared way before trial, and you have to win at trial, because judges are given wide discretion in controlling your chances on appeal and Sometimes you want too much, sometimes you are greedy: WI plaintiff’s lawyers are killing their income source.
What do you think? Leave a comment.
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Philippi v. Sipapu, Inc., 961 F.2d 1492; 1992 U.S. App. LEXIS 6973
Posted: January 27, 2014 Filed under: Assumption of the Risk, Legal Case, New Mexico, Skiing / Snow Boarding | Tags: American Home Assurance Corporation, Assumption of risk, George Philippi, Inc., James Booth, Lawrence Gottschau, New Mexico, New Mexico Ski Safety Act, Olive Bolander, Sipapu, Sipapu Recreation Development Corporation, ski area, ski lesson, skiing, Summary judgment Leave a commentPhilippi v. Sipapu, Inc., 961 F.2d 1492; 1992 U.S. App. LEXIS 6973
George Philippi, Plaintiff-Appellant, v. Sipapu, Inc., a New Mexico corporation; Sipapu Recreation Development Corporation, a New Mexico corporation; and their employees, Lawrence Gottschau, James Booth, and Olive Bolander; and American Home Assurance Corporation, a New York corporation, Defendants-Appellees.
No. 91-2253
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
961 F.2d 1492; 1992 U.S. App. LEXIS 6973
April 17, 1992, Filed
PRIOR HISTORY: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. No. CIV-90-1178-JC). D.C. Judge JOHN E. CONWAY
DISPOSITION: DENIED. AFFIRMED
COUNSEL: Submitted on the briefs.
Patrick A. Casey and David C. Ruyle, Patrick A. Casey, P.A., Santa Fe, New Mexico, for the Plaintiff-Appellant.
Joe L. McClaugherty and Cameron Peters, McClaugherty, Silver & Downs, P.C., Santa Fe, New Mexico, for the Defendants-Appellees.
JUDGES: Before MOORE, TACHA, and BRORBY, Circuit Judges.
OPINION BY: TACHA
OPINION
[*1493] TACHA, Circuit Judge.
Plaintiff, George Philippi, appeals a district court order granting summary judgment to the defendants. 1 Philippi argues that the district court erred in granting the defendants summary judgment on Philippi’s negligence action. Philippi also argues that two unresolved issues of New Mexico law may be determinative in this case and urges this court to certify these issues to the Supreme Court of the State of New Mexico. We exercise jurisdiction under 28 U.S.C. 1291 and affirm.
1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
[**2] In January of 1984, Philippi suffered a physical injury during the course of a skiing lesson at Sipapu Ski Area in New Mexico. Philippi, a body builder, injured his right leg and knee while attempting to negotiate the “Lower Bambi” run at Sipapu. Philippi brought this action against the defendants claiming, among other things, that the defendants acted negligently in violation of the New Mexico Ski Safety Act, N.M. Stat. Ann. 24-15-1 to 24-15-14 (hereinafter referred to as “the Act” or “the Ski Safety Act”).
In their motion for summary judgment, the defendants argued that they were entitled to judgment as a matter of law because the Ski Safety Act is Philippi’s only remedy and because Philippi’s claim is barred by his statutory assumption of the risks of skiing and his own breaches of duty under the Act. As an alternative basis for summary judgment, the defendants argued that they did not breach any of their duties under the Act. Without stating the basis of its ruling, the district court found that the motion for summary judgment was “well taken and should be granted.”
Philippi raises two claims on appeal. First, he argues that the district court misconstrued and misapplied the doctrine [**3] of primary and secondary assumption of the risk, as embodied in the Ski Safety Act. Second, Philippi argues that even if his conduct constitutes secondary assumption of the risk, the Act embodies comparative negligence principles, and his conduct, therefore, cannot totally bar his recovery under the Act. Philippi urges us to certify both of these issues to the New Mexico Supreme Court.
Although the basis of the district court’s ruling is not evident, [HN1] “we may affirm the granting of summary judgment if any proper ground exists to support the district court’s ruling.” McKibben v. Chubb, 840 F.2d 1525, 1528 (10th Cir. 1988). We find it unnecessary to reach the merits of Philippi’s arguments on appeal because both arguments presuppose that, but for the district court’s alleged errors in applying the doctrines of assumption of the risk and comparative negligence, the district court would have concluded that the defendants owed a duty to Philippi. Viewing the facts alleged in the complaint and in opposition [*1494] to the summary judgment motion in the light most favorable to Philippi, we hold as a matter of law that the defendants owed no duty to protect Philippi from the harm [**4] he allegedly sustained. Because Philippi cannot demonstrate a duty owed by the defendants, we find certification of the issues on appeal inappropriate, as these issues are not determinative of this action.
This case requires us to determine whether the Ski Safety Act imposes a duty on a ski area operator to warn, or in some way protect, a novice skier from the inherent perils and obstacles posed by the terrain of a narrow, steep and ungroomed ski slope. Philippi’s injury occurred during a skiing lesson. According to the amended complaint, Philippi fell repeatedly during the lesson and, despite the ski instructors’ demonstrations and instructions, he was unable to master turning and other skiing maneuvers. Philippi allegedly informed the instructors that he wanted to stop the lesson because he was frustrated and tired. The instructors encouraged Philippi to continue skiing to the end of the run because the remaining terrain was “relatively easy,” and there was “no place to stop or stand.” The complaint alleges that “following the instructions of one of the individual Defendants, Plaintiff entered onto a narrow, steep, ungroomed slope which required numerous turns to navigate. Plaintiff [**5] could not see obstacles on this slope until he was upon them and too late to avoid them. During this portion of the instruction Plaintiff fell and severely injured his right leg and knee. . . .”
[HN2] Under section 24-15-10(B) of the Ski Safety Act, a skier “accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary.” The Act goes on to state that a skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing, in the skiing areas, including any injury caused by . . . variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees or other forms of forest growth or debris . . . .
[HN3] The Act specifically excludes from the scope of a skier’s assumption of risk “any injuries . . . resulting from any breach of duty imposed upon ski area operators under the provisions of Sections 24-15-7 and 24-15-8 [of the Act].” Id.
Philippi maintains that even though he assumed the obvious and necessary risks associated with skiing, including any injury caused by variations in terrain, the risks he encountered were not “obvious and necessary” [**6] to him as a novice skier. The Act imposes an affirmative duty on ski area operators “to warn of or correct particular hazards or dangers known to the operator where feasible to do so.” Id. 24-15-7(I). Philippi’s complaint alleges that the defendants were aware of Philippi’s difficulties in mastering even the simplest skiing maneuvers, the defendants knew of “particular hazards or dangers,” and they knew or should have known that Philippi was likely to injure himself if “allowed to continue” down the slope. Thus, Philippi alleges that under section 24-15-7(I) of the Act, the defendants had a duty to warn him of the obstacles of the lower portion of the ski slope — obstacles “which were not plainly visible and which created an immediate hazard to [Philippi] and the skiing public.”
In response to the defendants’ argument in support of summary judgment that the defendants owed no duty to Philippi, Philippi bore the burden of making a showing sufficient to establish the existence of the defendants’ duty. See High Plains Natural Gas v. Warren Petroleum Co., 875 F.2d 284, 290-91 (10th Cir. 1989). [HN4] “The party resisting [summary judgment] may not rest on the bare allegations [**7] or denials of his pleadings. Rather he must produce some evidence showing a genuine issue for trial.” Lowell Staats Mining Co. v. Philadelphia Elec. Co., 878 F.2d 1271, 1274 (10th Cir. 1989).
Philippi claims that the deposition testimony and affidavits, along with facts alleged in his complaint, demonstrate a genuine issue of material fact concerning the defendants’ violation of section 24-15-7(I) of the Act. Philippi points out that, despite the instructors’ awareness of Philippi’s inability [*1495] to master even the simplest skiing maneuvers, the instructors “failed to help” and “failed to warn” Philippi of the risks of the lower portion of the Bambi trail. Further, Philippi made some showing that the defendants were aware that novice skiers had “problems” on the portion of the trail on which Philippi’s injury occurred. In addition, Philippi points to the failure of the Sipapu ski instructor’s manual to advise the instructors of the need to warn students of dangers and alert them to safety considerations. Philippi argues that reasonable minds could differ on whether these circumstances give rise to a duty on behalf of the defendants and, therefore, that the issue should [**8] be left to the finder of fact.
[HN5] Under New Mexico law, however, the question of whether a defendant owes a duty to a particular plaintiff is a question of law to be determined by the court. Calkins v. Cox Estates, 110 N.M. 59, 792 P.2d 36, 39 (N.M. 1990); Schear v. Board of County Comm’rs, 101 N.M. 671, 687 P.2d 728, 729 (N.M. 1984). Under section 24-15-7(I) of the Ski Safety Act, the defendants only have the duty to warn of or correct “particular hazards or dangers.” Philippi cannot rest on the bare allegation in his amended complaint that the defendants were aware of and failed to warn of “particular hazards or dangers.” Nothing in Philippi’s amended complaint, deposition or affidavits identifies any “particular hazard or danger” known to the defendants. Philippi merely asserts that his injury was caused by the defendants’ failure to warn him individually of the general conditions of the terrain on the lower portion of the beginner slope. Allegations of “thin and bare” terrain on a “narrow, steep and ungroomed” slope do not amount to a particular hazard of which the defendants had a duty to warn Philippi. Likewise, allegations of the defendants’ knowledge of injuries [**9] to novice skiers on that same portion of the slope do not amount to a particular hazard of which the defendants had a duty to warn Philippi.
The purpose of the Ski Safety Act is to define “those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury and those risks which the skier expressly assumes and for which there can be no recovery.” N.M. Stat. Ann. 24-15-2. Philippi assumed the risk for variations in terrain, id. 24-15-10, and Philippi had the duty to ski within the limits of his own ability. Id. Section 24-15-13 of the Act clearly states that a skier cannot recover for injuries or damages resulting from the skier’s own violation of his duties, as set forth in section 24-15-10. In our view, the Act allocates to the skier the risks for the type of injury Philippi alleges. In light of the language and purpose of the New Mexico Ski Safety Act, we conclude as a matter of law that [HN6] the scope of the duty imposed on ski operators in section 24-15-7(I) of the Act is not broad enough to encompass the duty to provide a general warning to a novice skier that, because of the skier’s limited abilities, portions of a beginner [**10] slope may be dangerous.
The motion to certify questions of state law is DENIED and the order of the district court is AFFIRMED.
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American Alpine Club Journal is Looking for your Stories
Posted: January 21, 2014 Filed under: Youth Camps, Zip Line | Tags: #AAC, AAC Journal, American Alpine Journal, Big wall climbing, Climb, Climbing, First ascent, Mountain Climbing, Mountaineering, Recreation, Rock climbing Leave a comment
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Saris sponsoring National Bicycling Poster Contest
Posted: January 21, 2014 Filed under: Cycling | Tags: Bicycling, Cycling, Poster Contest, SARIS Leave a comment
In 2010 we designed a poster contest to engage our youth on the numerous benefits of the bicycle. Over the past 3 years we have reached over 20,000 fifth graders through our contest. First place state winners receive a bike, light and helmet. One national winner will go to the 2015 National Bike Summit in Washington D.C.
To Enter:
1. Visit here to see if your state is participating.
3. Send poster in by March 7 to your coordinator.
What do you think? Leave a comment.
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Plaintiff tries to hold ski area liable for exceeding the state ski statute, however the court sees the flaws in the argument.
Posted: January 20, 2014 Filed under: Assumption of the Risk, New Hampshire, Ski Area, Skiing / Snow Boarding | Tags: Defendant, Eileen Gwyn, Estate of Howard Gwyn, increased risk of harm, Loon Mountain Corporation, Loon Mountain Ski Area, Margaret Do, Negligence, New Hampshire, ski area, Ski Resort, Ski Safety Act, skiing, Summary judgment, voluntarily assumed duty negligently performed 1 CommentThe New Hampshire Ski Area Safety Act only requires a ski area to post as a sign to close a run. The plaintiff tried to claim that a rope closing the run created greater liability rather more protection for skiers and boarders. A voluntarily assumed duty negligently performed is something always created in many outdoor recreation programs or businesses. However, it is not the change that is the legal issue. It is whether or not you increase the risk of harm to your guests that is controlling.
Gwyn v. Loon Mountain Corporation, 350 F.3d 212; 2003 U.S. App. LEXIS 23995
Plaintiff: Eileen Gwyn, on her own behalf, and as Executrix of the Estate of Howard Gwyn, and Margaret Do
Defendant: Loon Mountain Corporation, d/b/a Loon Mountain Ski Area
Plaintiff Claims: violation of the New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act
Defendant Defenses: New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act
Holding: for the defendant’s ski area
In this case, two people died and one person was injured on an icy ski slope. The first victim standing above the closed trail slipped and slid under the rope 900 feet to his death. The next two victims took off their skis and tried to hike down to the first victim. Both eventually fell sliding down the slope.
The survivors and the estates sued claiming violation of the New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act and common law negligence claims. The lower court dismissed all but two of the claims on the defendant’s motion to dismiss. Those two claims were eventually dismissed after discovery had occurred, and the defendant filed a motion for summary judgment.
The plaintiff’s appealed the dismissal.
Summary of the case
The trail the plaintiffs fell down had been closed because it was icy. The New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act required that a notice be placed on signs at the base of the lift, on trail-boards, and a sign posted at designated access points.
The plaintiff argued that the trail had to be closed not only at the main access point to the trail but all possible access points to the closed trail from another trail. The court looked at a trail map of the area and realized that the signage alone to mark a trail closed would be enormous.
The second argument was the most disturbing. The statute did not require that a rope be used to close a trail. Only a sign was needed to close a trail. By placing the rope across the trail the rope “could lure a skier closer to the icy entrance than one would go otherwise.” The plaintiff then argued that by a duty, voluntarily assumed but negligently performed was not protected by the ski statute.
There are situations where a voluntary act increases the risk of harm to someone creating negligence.
…but the common law rule sometimes permits a claim for negligent performance of a voluntary act where the negligence “increases the risk” of harm, or harm is caused by the victim’s “reliance upon the undertaking” to provide help or care.
The district court rejected this argument.
[The] complaint is devoid of allegations suggesting that defendant’s failure to exercise reasonable care to perform the identified undertakings created the icy area where the falls took place, exacerbated an already dangerous situation, caused Howard Gwyn and Do to enter an area they would not have entered absent the undertakings, or caused Howard Gwyn and Do to suffer worse injuries than they would have suffered absent the undertakings.
Because the first person to fall slipped on an ice patch, which was an inherent risk assumed by the skier under the statute, the plaintiff could not argue the risk was increased. The risk was there, and the rope did not change or increase the risk.
The only duty Loon voluntarily undertook–placing a rope across the trail–put the plaintiffs in no worse a position than they would have been without the rope. One can think of circumstances where a badly placed rope would cause or contribute to an accident but this simply is not such a case.
The next two plaintiffs obviously assumed the risk and by taking off their skis, probably increased the risks themselves.
The remaining claims of the plaintiff were dealt with quickly. The first was the New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act violated the New Hampshire Constitution. However, the New Hampshire Supreme Court had already ruled it did not. The final two were procedural in nature. Whether the question on appeal had been certified and whether the plaintiff’s request to amend their complaint had been improperly denied.
So Now What?
Cases like this scare outdoor recreation programs into not doing the next thing to make a program better because of fear of creating more problems. Do not allow the threat of a lawsuit to make your program better or safer.
Do make your changes or upgrades such that the changes do not place your guests in a place of increased risk or such that you have placed your guests in a position where they may be confused.
Any risk can be assumed by your guests, clients, or skiers. You need to make sure that any changes in your program, operation or business result in a change in the information and education your clients receive about the risk.
Here the risk had not changed to the plaintiff so that the change, the actions above those required by the statute, did not increase the risk to the plaintiffs. The icy spot was there whether or not the rope was placed closing the trail or where the rope was placed.
Do the right thing and continue with an education of your guests to make sure they know what you are doing and why and what those risks are.
 James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
Outdoor Recreation Insurance, Risk Management, and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Gwyn v. Loon Mountain Corporation, 350 F.3d 212; 2003 U.S. App. LEXIS 23995
Posted: January 20, 2014 Filed under: Assumption of the Risk, Legal Case, New Hampshire, Ski Area, Skiing / Snow Boarding | Tags: Eileen Gwyn, Estate of Howard Gwyn, increased risk of harm, Loon Mountain, Loon Mountain Corporation, Loon Mountain Ski Area, Margaret Do, New Hampshire, ski area, Ski Safety Act, voluntarily assumed duty negligently performed Leave a commentTo Read an Analysis of this decision see: Plaintiff tries to hold ski area liable for exceeding the state ski statute, however, the court sees the flaws in the argument.
Gwyn v. Loon Mountain Corporation, 350 F.3d 212; 2003 U.S. App. LEXIS 23995
Eileen Gwyn, on her own behalf, and as Executrix of the Estate of Howard Gwyn, and Margaret Do, Plaintiffs, Appellants, v. Loon Mountain Corporation, d/b/a Loon Mountain Ski Area, Defendant, Appellee.
No. 03-1047
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
350 F.3d 212; 2003 U.S. App. LEXIS 23995
November 25, 2003, Decided
SUBSEQUENT HISTORY: As Amended December 2, 3003.
PRIOR HISTORY: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Paul J. Barbadoro, U.S. District Judge.
Gwyn v. Loon Mt. Corp., 2002 U.S. Dist. LEXIS 9092 (D.N.H., 2002)
Gwyn v. Loon Mt. Corp., 2002 U.S. Dist. LEXIS 24625 (D.N.H., 2002)
DISPOSITION: Affirmed.
COUNSEL: Kevin M. Leach with whom Nixon, Raiche, Manning, Casinghino & Leach, P.C. was on brief for appellants.
Thomas Quarles, Jr. with whom Margaret O’Brien, Matthew R. Johnson and Devine, Millimet & Branch, P.A. were on brief for appellee.
JUDGES: Before Boudin, Chief Judge, Siler, * Senior Circuit Judge, and Lynch, Circuit Judge.
* Of the Sixth Circuit, sitting by designation.
OPINION BY: BOUDIN
OPINION
[*214] BOUDIN, Chief Judge. In this tragic case, two individuals were killed and a third badly injured in a skiing accident in New Hampshire. The details are set forth in two very able opinions by the district court. Thus, we confine ourselves to an abbreviated description focused on the two primary issues raised on this appeal: one is an important question of statutory construction and the other a narrower issue turning upon the pleadings.
Howard and Eileen Gwyn, their daughter Margaret Do, and Margaret’s fiance Mark Goss went on a ski vacation in Lincoln, New Hampshire. On January 25, 1999, they spent the morning together skiing down [**2] easy trails at Loon Mountain Ski Area (“Loon”). Shortly before lunch, Howard, Margaret, and Mark–all very experienced skiers–left Eileen and rode the chairlift up to the Summit Lodge to ski down some more difficult trails. Unbeknownst to them, Loon had closed one of the trails (named “Triple Trouble”) the night before because of icy conditions, a closure noted on the trail board at the bottom of the mountain.
[*215] From the summit, it was possible to ski directly down a trail named Big Dipper from which, part way down, Triple Trouble branched off to the skier’s right. Or, from the summit, one could head right on a trail called Haulback, then take a left fork onto Cant Dog, and enter Big Dipper just above the point where Triple Trouble branched off to the right. At this branching off point from Big Dipper to Triple Trouble, Loon had posted a sign warning that Triple Trouble was closed. It had also placed a rope across the entrance to Triple Trouble.
From the summit, Howard led the group to the right down Haulback and then took a left turn onto Cant Dog. At the intersection of Cant Dog and Big Dipper–right above the closed Triple Trouble trail–Howard slipped on ice, slid under the rope [**3] blocking off Triple Trouble, and tumbled nine hundred feet down the icy slope. He suffered severe injuries resulting in his death a few days later. Margaret Do and Mark Goss saw Howard Gwyn fall, removed their skis, and attempted to walk down the closed trail to rescue him. Both fell, sliding hundreds of feet down Triple Trouble trail. Goss died. Margaret Do suffered severe injuries and frostbite but was rescued several hours later. In this diversity suit, Margaret Do and Eileen Gwyn (as executrix of Howard Gwyn’s estate and on her own behalf) sued Loon for breach of multiple common law and statutory duties. The district court granted Loon’s motion to dismiss the majority of claims under New Hampshire’s “Skiers, Ski Area, and Passenger Tramway Safety Act,” N.H. Rev. Stat. Ann § 225-A:23 (2002) (“ski statute”). Two claims survived the motion to dismiss, but after discovery the district court granted summary judgment to Loon on both counts. Plaintiffs appealed, focusing attention on one statutory claim and one claim of common law negligence.
At the crux of this appeal is New Hampshire’s ski statute, N.H. Rev. Stat. Ann § 225-A. In this [**4] statute several duties are placed on ski operators–maintaining trail boards, marking the difficulty of various slopes, making trail maps available to all skiers–and operators can be sued for violations of these statutory duties. § 225-A:23; Nutbrown v. Mt. Cranmore, Inc., 140 N.H. 675, 671 A.2d 548, 553 (N.H. 1996). At the same time, the statute places the risk of injury from dangers inherent in the sport of skiing on the skiers themselves, and bars all actions against ski operators for injuries caused by these dangers. 1 § 225-A:24; Nutbrown, 671 A.2d at 553. New Hampshire case law is slowly filling in the gaps but uncertainties remain.
1 [HN1] The statute provides that “each person who participates in the sport of skiing accepts as a matter of law[] the dangers inherent in the sport, and to that extent may not maintain an action against the operator for any injuries which result from such inherent risks, dangers, or hazards.” § 225-A:24; see also Nutbrown, 671 A.2d at 553 (“By participating in the sport of skiing, a skier assumes this inherent risk and may not recover against a ski area operator for resulting injuries.”).
[**5] Here, most of the counts and theories pressed by plaintiffs at the start are no longer in issue, but two major claims remain open on this appeal. The first is that Loon did not comply with a statutory duty relating to marking closed trails. Under the ski statute, operators are not required to close a trail because of hazardous conditions, but if they do close a trail they must mark “the beginning of, and designated access points to” the closed trail with a sign, § 225-A:23 (III)(b), and note the closure on a permanent trail board at the base of the mountain, § 225-A:23 (II)(a). Here, it is undisputed that Loon properly [*216] noted the closure on the trail board and properly marked “the beginning” of Triple Trouble at the point that it branched off Big Dipper.
Nevertheless, the plaintiffs say that a closed sign for Triple Trouble was also required by the statute at the uphill juncture where Cant Dog forked off Haulback–a point where a sign pointed the way to Big Dipper and Triple Trouble. This, they say, was itself an “access point” to Triple Trouble. Their causation theory is less clear: the implication is that such an early warning of a closed trail further downhill might have made [**6] Howard Gwyn decide to lead the group straight down Haulback instead of taking Cant Dog so they could avoid the entire region around the closed trail.
The district court ruled as a matter of law that “access points” as used in the New Hampshire statute referred to points of direct entry onto a trail, and did not include points above the start of the closed trail. Thus, the start of Cant Dog might conceivably be treated as an access point to Big Dipper since the former merged into the latter; once on Cant Dog, entry onto Big Dipper was inevitable. By contrast, nothing compelled one who took the fork to Big Dipper necessarily to take the fork from Big Dipper onto Triple Trouble.
We agree readily with the district court’s reading of the statute. True, as a matter of dictionary definition a remote fork to an intermediate trail that can lead eventually to the closed trail could be described as a way to “access” the later trail; but on this theory the summit itself would be an access point to every connected trail on the mountain below. Indeed, on plaintiffs’ reading, warning signs might have to be posted at a variety of different points wherever existing trail signs indicated that [**7] the closed trail could be reached somewhere downhill. Conceivably, plaintiffs’ position could also require ski operators to construct such directional signs even if they did not already exist in order to mark every downhill closure.
It would not be literally impossible to comply with such requirements–apparently some ski slopes do so mark their closed trails, at least where existing signs mention the trails–but it could involve fairly complex compliance measures. In fact, the Loon trail map indicates that from some trails one could reach nearly 30 different trails below–some of them through open intermediate trails branching off into other open forks. The simplicity of the statute’s requirements argues against an interpretation requiring ski operators to mark every one of those possibilities, and this interpretation is unnecessary to carry out what we perceive to be the rationale of the warning requirement.
In our view, the statute aims to give the skier warning of a trail closure at any point where the skier might otherwise commit himself to traverse the closed trail. This is a complete scheme of protection giving the skier both a comprehensive overview of all closures on the [**8] base trailboard, and specific notice of each closure at any point on the mountain where the skier has a last chance to avoid the closed trail.
This reading may leave some open issues, but it forecloses plaintiffs’ central claim in this case. Here, the plaintiffs argue that a sign should have been placed at the Haulback-Cant Dog junction, since Cant Dog led onto Big Dipper which in turn led onto Triple Trouble. But a skier does not commit himself to taking Triple Trouble merely by turning left onto Cant Dog. Big Dipper was an open trail which a skier could continue down without branching off onto Triple Trouble, so no warning sign as to Triple Trouble was required by [*217] the statute at the Haulback- Cant Dog fork, even though one could have been voluntarily provided.
The second claim on appeal is that the district court should not have rejected an alternative theory of the plaintiffs having nothing to do with notice. The plaintiffs said that the defendant had placed the rope across Triple Trouble somewhat below the entrance itself and that the placement was negligent because it could lure a skier closer to the icy entrance than one would go otherwise. Admittedly, there was no duty to [**9] use any closing rope at all (the statute made the signs sufficient) but the plaintiffs argue that a voluntarily assumed duty negligently performed is not immunized by the statute.
There are obvious risks in penalizing efforts to provide help or care beyond an existing duty, but the common law rule sometimes permits a claim for negligent performance of a voluntary act where the negligence “increases the risk” of harm, or harm is caused by the victim’s “reliance upon the undertaking” to provide help or care. Restatement (Second) of Torts § 323 (1965); see also Prosser & Keaton on Torts 378-82 (5th ed. 1984). The New Hampshire Supreme Court has not decided how far this doctrine may apply in the face of the state statute providing protection to ski operators. See Rayeski v. Gunstock Area/Gunstock Area Comm’n, 146 N.H. 495, 776 A.2d 1265, 1269 (N.H. 2001).
The district court did not attempt to answer this question. It rested its rejection of such a claim in this case on the fact that the plaintiffs had not articulated any plausible causal connection between the placement of the rope and Howard Gwyn’s fall. As the district court [**10] said:
[The] complaint is devoid of allegations suggesting that defendant’s failure to exercise reasonable care to perform the identified undertakings created the icy area where the falls took place, exacerbated an already dangerous situation, caused Howard Gwyn and Do to enter an area they would not have entered absent the undertakings, or caused Howard Gwyn and Do to suffer worse injuries than they would have suffered absent the undertakings.
We have read the plaintiffs’ appellate briefs with care and no persuasive answer to this summary appears.
The problem for the plaintiffs is that Howard Gwyn evidently slipped on an ice patch on Big Dipper, and [HN2] an icy and dangerous open slope is an inherent risk of skiing that the plaintiffs assumed as a matter of law. N.H. Rev. Stat. Ann § 225-A:24(I); Nutbrown, 671 A.2d at 553-54 (citing Fetzner v. Jiminy Peak, The Mountain Resort, 1995 Mass. App. Div. 55, 1995 Mass. App. Div. LEXIS 30, No. 94WAD16, 1995 WL 263916, at *2 (Mass. Dist. Ct. May 1, 1995) (slipping on ice is an inherent risk of skiing)). The only duty Loon voluntarily undertook–placing a rope across the trail–put the plaintiffs in no worse a position than [**11] they would have been without the rope. One can think of circumstances where a badly placed rope would cause or contribute to an accident but this simply is not such a case.
Three remaining claims can be dealt with more swiftly. First, plaintiffs say that as read by the district court (and now by this court), the New Hampshire statute violates two provisions of the New Hampshire Constitution: the right to a remedy and the equal protection of the laws. N.H. Const. part I, arts. 2, 12, 14. The claim is that the district court’s interpretation deprives the plaintiffs of their constitutionally guaranteed rights without giving them a sufficient quid pro quo of a prior warning of the danger. This argument may be forfeited since not raised [*218] below. Brigham v. Sun Life of Canada, 317 F.3d 72, 85 (1st Cir. 2003).
In any event the New Hampshire Supreme Court has already concluded that the obligations that the ski statute places on ski operators provide a sufficient quid pro quo for the statutory restriction on skiers’ legal remedies. Nutbrown, 671 A.2d at 552. While the “access points” issue was not considered in Nutbrown, this slight wrinkle would [**12] not be likely to alter the New Hampshire Supreme Court’s assessment. No further argument based on New Hampshire constitutional law is sufficiently developed to merit consideration. See Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 43 (1st Cir. 1998).
Second, plaintiffs say that the statutory reading of the access points language and the voluntary assumption issue present open questions of New Hampshire law that should be certified to the state court. No such request was made in the district court, which is ordinarily conclusive save in rare circumstances such as public policy concerns, e.g., Pyle v. S. Hadley Sch. Comm., 55 F.3d 20, 22 (1st Cir. 1995). In any event, the access points issue is too straightforward to deserve certification and the voluntary assumption claim has been resolved not on the basis of statutory preemption but simply on the pleadings and facts of this case.
Third, plaintiffs say that the district court erred by denying them the chance to amend their complaint for the second time (one earlier amendment had been made) two months after the deadline set by the district court’s scheduling order. The motion [**13] to amend was denied by the district court for failure to make any effort to satisfy the good cause requirement for amendments after the scheduling order deadline, Fed. R. Civ. P. 16(b)(1), and also the disregard of Local Rule 15.1’s further requirements (e.g., attaching all relevant documents and explaining why the change had not been made before). D.N.H. R. 15.1.
On appeal, the plaintiffs say only that the district court erred by applying federal standards for amending pleadings instead of the supposedly more liberal amendment rules applicable in New Hampshire state courts. [HN3] But if anything comprises “procedural” rules exempt from the Erie doctrine, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), it is the standards for such routine issues as the granting or denial of extensions of time, leave to amend, and similar housekeeping concerns. [HN4] The outcome determinative test relied upon by plaintiffs has been limited, see Hanna v. Plumer, 380 U.S. 460, 471, 14 L. Ed. 2d 8, 85 S. Ct. 1136 (1965), and has no application to a clearly procedural matter governed by explicit federal procedural rules.
[**14] This is a sad case but, despite the ingenuity and energy of plaintiffs’ counsel, it is not a close one, given the limitations imposed by state policy. It was handled with care and competence by the district court, and we might have said less but for a desire to make clear that plaintiffs’ arguments have been considered with respect.
Affirmed.
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2013-2014 In bound ski/board fatalities
Posted: January 15, 2014 Filed under: Ski Area, Skier v. Skier, Skiing / Snow Boarding | Tags: RecreationLaw, Ski Resort, skiing, Snowboard 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 January 13, 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.
2013 – 2014 Ski Season Fatalities
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# |
Date |
State |
Resort |
Where |
How |
Cause |
Ski/ Board |
Age |
Sex |
Home town |
Helmet |
Reference |
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|
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1 |
12/11 | CO | Telluride | Pick’N Gad | Left the ski run, struck a tree and suffered fatal injuries | 60 | M | Norwood, CO | No | http://rec-law.us/190al75 | http://rec-law.us/1fchteM | |||
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2 |
12/12 | VT | Killington | Great Northern Trail | Found | 21 | F | PA | No | http://rec-law.us/1csgWCg | ||||
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3 |
12/16 | WA | Crystal Mountain Resort | Tinkerbell | Lost control and veered off the trail | Blunt Force Trauma | F | Yes | http://rec-law.us/Jc4MX3 | |||||
| 4 | 1/1/14 | WV | skiing into a tree | M | Opp, AL | http://rec-law.us/1a6nAkQ | ||||||||
| 5 | 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 | ||||
| 6 | 12/19 | CO | Winter Park | Butch’s Breezeway | blunt force injury to the head | 19 | M | Yes | http://rec-law.us/1f3ekSy | |||||
| 7 | 1/11 | CO | Aspen | Bellisimo | hitting a tree | Ski | 56 | M | CO | Yes | http://rec-law.us/1hNbHoz | http://rec-law.us/JTr7sY | ||
| 8 | 1/11 | MT | Whitefish Mountain Resort | Gray Wolf and Bigho | Found in a tree well | Ski | 54 | M | CA | http://rec-law.us/1kx1deP |
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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2014 UIAA Ice Climbing World Cup set to begin
Posted: January 14, 2014 Filed under: Youth Camps, Zip Line | Tags: Climb, Ice climbing, International Olympic Committee, Mountaineering, North Face, UIAA, Union Internationale des Associations d'Alpinisme Leave a comment
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Ice climbing (Photo credit: Wikipedia)
New Group formed to promote Freedom in Mountaineering. Fear that attorneys and media will close the mountains based on fear and failure to understand forced the formation of Italian Observatory for Liberty in Mountaineering
Posted: January 7, 2014 Filed under: Climbing, Mountaineering | Tags: Climbing, Climbing Freedom, International Mountaineering and Climbing Federation, Italian Alpine Club, Jon Heshka, Mountain Climbing, Mountaineering, Observatory for Liberty in Mountaineering, UIAA, Union Internationale des Associations d’Alpinsive Leave a commentLiberty in Mountaineering to resist attempts by national or local authorities to constrain freedom of access and risk taking in mountaineering and climbing
Italian Observatory for Liberty in Mountaineering
Ice climbing (Photo credit: Wikipedia)
Motivation and purposes.
The “Osservatorio per la Libertà in Alpinismo” (Observatory for Liberty in Mountaineering) is a Free Association, recognized by the Italian Alpine Club. Its purpose is the defense of liberty in the various mountaineering practices against the increasing tendency to restrain it. This tendency is typical of advanced societies, where the broad detachment from natural life generates an obsession against dangers in general. This feature of the “société sécuritaire” is fostered by social tensions and by the wide diffusion of information.
The social rejection of the forms of liberty that imply dangers is particularly reactive to accidents in mountaineering, ski-mountaineering and climbing. Out of it comes the restrictive interpretation of laws and the plan of oppressive ones. Local authorities often set constraints to the access to mountain areas which are not justified by environmental concern.
The reaction to all this led the Italian Mountaineers to create the Observatory. Its main purpose is to gather information about the threats to liberty and to react against attempts to constrain the freedom in mountaineering practices. One of its main tasks is to deepen the understanding of the general public opinion and to let the public understand the values of the adventure in mountaineering and of the principles of liberty.
Obviously, liberty cannot reach as far as creating damages to anyone; the Italian Alpine Club runs powerful mountaineering and climbing schools all over the Country and steadily invites its members to have a sound approach to mountaineering. But the Observatory does not accept critical arguments such as “dangers for the rescue teams” and “costs for the national health service”. No space here for details.
The negative vision of mountaineering can lead to constraints on access to adventure terrains, far beyond those that may be justified by environmental concern. This is a field of action for the Observatory, but even more important is the fight for freedom to take risks, which is an inherent feature of mountaineering. Its importance is enhanced by the increasing tendency of advanced societies to infringe the right to risk taking in other fields of human activity.
This brief note is obviously confined to a few essential features of the menace to liberty, but an important point must still be mentioned, since it was recognized during the “Assises de l’Alpinisme” that were held on 2011 in Grenoble and Chamonix: the problem is international, therefore it deserves attention by all Countries of UIAA.
Motivation and purposes.
Schitour am Hochkönig (Österreich) (Photo credit: Wikipedia)
The “Osservatorio per la Libertà in Alpinismo” (Observatory for Liberty in Mountaineering) is a Free Association, recognized by the Italian Alpine Club. Its purpose is the defense of liberty in the various mountaineering practices against the increasing tendency to restrain it. This tendency is typical of advanced societies, where the broad detachment from natural life generates an obsession against dangers in general. This feature of the “société sécuritaire” is fostered by social tensions and by the wide diffusion of information.
The social rejection of the forms of liberty that imply dangers is particularly reactive to accidents in mountaineering, ski-mountaineering and climbing. Out of it comes the restrictive interpretation of laws and the plan of oppressive ones. Local authorities often set constraints to the access to mountain areas which are not justified by environmental concern.
The reaction to all this led the Italian Mountaineers to create the Observatory. Its main purpose is to gather information about the threats to liberty and to react against attempts to constrain the freedom in mountaineering practices. One of its main tasks is to deepen the understanding of the general public opinion and to let the public understand the values of the adventure in mountaineering and of the principles of liberty.
Obviously, liberty cannot reach as far as creating damages to anyone; the Italian Alpine Club runs powerful mountaineering and climbing schools all over the Country and steadily invites its members to have a sound approach to mountaineering. But the Observatory does not accept critical arguments such as “dangers for the rescue teams” and “costs for the National Health Service”. No space here for details.
The negative vision of mountaineering can lead to constraints on access to adventure terrains, far beyond those that may be justified by environmental concern. This is a field of action for the Observatory, but even more important is the fight for freedom to take risks, which is an inherent feature of mountaineering. Its importance is enhanced by the increasing tendency of advanced societies to infringe the right to risk taking in other fields of human activity.
This brief note is obviously confined to a few essential features of the menace to liberty, but an important point must still be mentioned, since it was recognized during the “Assises de l’Alpinisme” that were held on 2011 in Grenoble and Chamonix: the problem is international, therefore it deserves attention by all Countries of UIAA.
Do Something
Do you believe this is becoming a problem? I believe it is a very real problem. If you are a mountaineer you expect death. Yet the park service tried to yank a Denali permit from a commercial outfitter when they had one death. The permitee was given a non-preferential review even though the outfitter had a stellar record prior to the fatality. (See Top National Park Service Officials Reverse Decision Tied To Fatal Climbing Accident.)
I had a lady call me once about a zip line. The zip line was going in down the road from her and she did not want it. I asked her why figuring she would say something about traffic on the road or the type of people zip lines attract and she said because they hurt and kill so many people.
See Jon Heshka and the Right of the Individual to Die Doing What We Love
It is our right to experience the world anyway we want. If that is sitting on a couch watching football, fine. If that is testing yourself against a mountain, the cold, testing yourself against yourself, then I believe it is fantastic. I understand I may die. I don’t believe I will die, but I understand the risks. I have looked at the risks and made the decision to live life rather than wait for death.
For more information about this organization see Italian observatory set to lobby for freedom in the mountains
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Hawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release
Posted: January 6, 2014 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Hawaii, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: Activity Owners Association of Hawaiian, CJM Country Stables, Equine, Gross negligence, Hawaii, Hawaiian Recreational Activity Liability Statute, Horse, Horseback, Horseback Ride, John King, Kualoa Ranch, Negligence, Negligence per se, Patricia King, Product liability, Punitive damages, stable, strict liability 2 CommentsHawaii attempts to limit liability increases the amount of money every injured party will recover. Legislation to limit liability lost recreation business the opportunity to use a release
Wheelock vs. Sport Kites, 839 F. Supp. 730 (9th Cir. 1993); and,
King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511
Hawaii Revised Statutes, Section 663-1.54
Badly written statute which was already full of holes was turned absolutely worthless by Hawaiian Federal District Court Decision. You cannot give up the best defense you have when you try and gain more defenses.
In Wheelock vs. Sport Kites
Plaintiff: Mary Rose Wheelock, individually, as Administratrix of the Estate of David William Wheelock, as Guardian Ad Litem for Maggie Wheelock and David William Wheelock, minors
Defendant: Sport Kites, Inc., a foreign corporation, dba Wills Wing, Rob Kells, an individual, Kualoa Ranch, Inc., a Hawaii corporation, and Sport Aviation Hawaii, Inc., a Hawaii corporation
Plaintiff Claims: Negligence, Gross Negligence and Product Liability
Defendant Defenses: Release
Holding: Holding for the Defendant on the Negligence claim and for the Plaintiff on the Gross Negligence and Product Liability claims.
In King v. CJM Country Stables
Plaintiff: John King and Patricia King
Defendant: CJM Country Stables
Plaintiff’s Claims: Negligence, Negligence Per Se, Strict Liability, Intentional, Negligent Infliction of Emotional Distress Loss of Consortium, Punitive Damages, Respondeat Superior
Defendant Defenses: release and the Hawaiian Recreational Activity Liability Statute
Holding: For the Plaintiff
Tourists are the life blood of the outdoor recreation industry. No place does that ring any truer than Hawaii. Without tourists who are there for a vacation or as a stop on a cruise ship, Hawaii’s economy would grind to a stop.
In an effort to limit liability for outdoor recreation activities, the recreation providers passed a law attempting to reduce or prevent lawsuits for injuries tourists received recreating. However, this Hawaiian law backfired by eliminating the use of releases a defense against a claim in the statute.
To set the stage for Hawaii’s move towards recreation legislation, it is important to acknowledge the development of Hawaiian common law. The landmark case, Wheelock vs. Sport Kites, 839 F. Supp. 730 (9th Cir. 1993), was the first time the Hawaiian courts dealt with whether an express release of liability bars all claims of negligence. Wheelock plunged to his death while paragliding when all the lines connecting the canopy to his harness broke. Wheelock’s wife sued, even though her husband signed a waiver releasing Sport Kites. The court upheld the release for negligence, declaring that Wheelock assumed the risk of paragliding.
The court did not allow the release to bar claims for gross negligence and the product liability claim.
Despite the Wheelock decision, the statewide Activity Owners Association of Hawaii believed litigation over recreation accidents needed to be reduced. The belief was it would lower insurance premiums and promote business growth. (See Ammie Roseman-Orr, Recreational Activity Liability in Hawai’i: Are Waiver Worth the Paper on Which They Are Written?, 21 U. Haw. L. Rev. 715.) Without a law, every accident had the opportunity to test the waters of the legal system in hopes of a reward. The Recreational Activity Liability Statute was enacted in 1997 to reduce recreation accident litigation’
§ 663-1.54. Recreational activity liability.
(a) Any person who owns or operates a business providing recreational activities to the public, such as, without limitation, scuba or skin diving, sky diving, bicycle tours, and mountain climbing, shall exercise reasonable care to ensure the safety of patrons and the public, and shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.
(b) Notwithstanding subsection (a), owners and operators of recreational activities shall not be liable for damages for injuries to a patron resulting from inherent risks associated with the recreational activity if the patron participating in the recreational activity voluntarily signs a written release waiving the owner or operator’s liability for damages for injuries resulting from the inherent risks. No waiver shall be valid unless:
(1) The owner or operator first provides full disclosure of the inherent risks associated with the recreational activity; and
(2) The owner or operator takes reasonable steps to ensure that each patron is physically able to participate in the activity and is given the necessary instruction to participate in the activity safely.
(c) The determination of whether a risk is inherent or not is for the trier of fact. As used in this section an “inherent risk”:
(1) Is a danger that a reasonable person would understand to be associated with the activity by the very nature of the activity engaged in;
(2) Is a danger that a reasonable person would understand to exist despite the owner or operator’s exercise of reasonable care to eliminate or minimize the danger, and is generally beyond the control of the owner or operator; and
(3) Does not result from the negligence, gross negligence, or wanton act or omission of the owner or operator.
This statute superseded the common law, which developed through Wheelock and the cases preceding it.
The first case to review the statute was King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511. In this case, the plaintiff was on a seven-day cruise that left Vancouver and went to Hawaii. While in Hawaii, the plaintiff booked a horseback ride through the cruise, with the defendant stable. While riding, the plaintiff was bit by another rider’s horse. She sued.
The court immediately reviewed the above Hawaiian Recreational Activity Liability Statute. Reading the statute the court concluded:
…these sections provide that a trier of fact must determine if injuries were caused by the “inherent risks” of a recreational activity. And if the trier of fact finds that the injuries were “caused solely by the inherent risk and unpredictable nature” of a horse, then there is a rebuttable presumption that the defendant’s negligence did not cause the injuries.
The court looked at the language of the release which states the trier of fact must determine if the injuries were caused by the activity, or in this case, the horse. The court found that under the statute, the court could not support the defendant’s motion for summary judgment because the statute “…explicitly precludes waiving liability for negligence.”
Since there was a genuine issue of material fact, meaning there were facts important to the case that had two different versions or interpretations (duh!) then the jury had to decide the case no matter what. The statute placed a burden on the plaintiff that was greater than the normal burden of proof, however the decision placed a greater burden on defendants in the increased cost of litigating cases.
…whether Defendant was negligent; and the Release Form’s validity as a waiver of liability, which depends on whether the horse-biting incident was an “inherent risk” of the recreational activity that Defendant provided to Plaintiffs. Defendant cannot satisfy its burden and thus, is not entitled to judgment as a matter of law.
So?
The statute left an enormous hole that will allow every injured party to recover something. The statute states that an “inherent risk” must be determined by the trier of fact, and that negligence cannot be an inherent risk. Consequently, the statute is worthless.
It gets worse. Under the previous common law, the judge could determine the inherent risk and grant summary judgment. In the case of Wheelock, the judge determined that, as a matter of law, equipment failure is an obvious risk of paragliding and set this as a precedent for future paragliding cases. The recreation statute, on the contrary, declares that the trier of fact must determine the inherent risks of the activity. The trier of fact is the jury. Therefore, every claim will go to trial. That increases the cost and increases the chance that a settlement will occur to reduce the cost of litigation.
Summary judgment cannot be granted because a jury trial must be held to determine if the risk is inherent. The cost of litigating jury trials will be substantially higher than the cost of a motion for summary judgment. A precedent cannot be set because it is determined, as a matter of fact, so the inherent risks must be determined in every case.
Even cases with identical inherent risks and injuries must be brought before a trier of fact, with the possibility for differing results. Second, the statute explicitly states that providers will be liable for negligence. Wheelock previously determined negligence could be an inherent risk that customers assumed when they signed the waiver for, thereby releasing the provider from liability. The statute no longer allowed the customer to assume the risk of negligence, making the statute a major step backward for activity providers.
So Now What?
Although a good effort by the Activity Owners Association of Hawaiian, they probably wrote the legislation without help from attorneys or those knowledgeable in how the statute would be applied (someone who had been in a courtroom with a suit and briefcase).
The statute is great in its intent; the actual way it was written makes the statute the best thing that could happen for any injured person in Hawaii. No matter what, this statute is going to allow the plaintiff to recover because the cost of fighting every claim through trial is at least $50,000 or more. Consequently, it will always be cheaper to settle than to sue.
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King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511
Posted: January 6, 2014 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Hawaii, Legal Case, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: Activity Owners Association of Hawaiian, CJM Country Stables, Equine, Hawaii, Hawaiian Recreational Activity Liability Statute, Horse, Horseback, Horseback Ride, John King, Patricia King, stable Leave a commentKing v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511
John King and Patricia King, Plaintiffs, vs. CJM Country Stables, Defendant.
Civ. No. 03-00240 ACK/BMK
United States District Court for the District of Hawaii
315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511
February 18, 2004, Decided
February 18, 2004, Filed
DISPOSITION: [**1] Defendant’s Motion for Summary Judgment denied.
COUNSEL: For JOHN KING, PATRICIA KING, plaintiffs: David C. Schutter, Christopher A. Dias, Schutter Dias Smith & Wong, Honolulu, HI.
For CJM COUNTRY STABLES, INC., defendant: Gale L.F. Ching, Mitzi A. Lee, Jane Kwan, Hisaka Stone Goto Yoshida Cosgrove & Ching, Honolulu, HI.
JUDGES: Alan C Kay, United States District Judge.
OPINION BY: Alan C Kay
OPINION:
[*1062] ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
BACKGROUND
This matter comes before the Court on Defendant CJM Country Stables’ (“CJM” or “Defendant”) Motion for Summary Judgment. The Motion for Summary Judgment argues that Patricia and John King (collectively, “Plaintiffs”) signed a valid waiver that releases CJM from liability for the injuries Plaintiffs allegedly suffered when they participated in a recreational horseback riding activity provided by the Defendant.
I. Factual History.
On September 16, 2001, Plaintiffs began an 11-night Royal Caribbean cruise sailing from Vancouver to and around the Hawaiian islands. On September 26, 2001, the cruise ship docked in Nawiliwili, on the Island of Kauai. That day, Plaintiffs participated in an organized horseback ride that [**2] they arranged through the shore excursion desk on board their ship.
Upon arriving at the stables, the horseback riding participants were asked to read and sign a form entitled “Participant Agreement, Release, and Acknowledgement of Risk,” (hereinafter the “Release Form”). Both Plaintiffs signed this Release Form. (Motion for Summary Judgment, Exs. A, D). The Release Form provides, in relevant part, that “in consideration of the services of CJM Country Stables, Inc.” the signatory agrees “to release and discharge C.J.M., on behalf of [himself or herself] … as follows:
1. I acknowledge that horseback trailrides entails known and unanticipated risks which could result in physical or emotional injury, … to myself … I understand that such risks simply cannot [*1063] be eliminated without jeopardizing the essential qualities of the activity. The risks include, among other things: … horses, irrespective of their previous behavior and characteristics, may act or react unpredictably based upon instinct, fright, or lack of proper control by rider; latent or apparent defects or conditions in … animals …; acts of other participants in this activity;… contact with plants or animals; [**3] … Furthermore, C.J.M. guides have difficult jobs to perform. They seek safety, but they are not infallible … They may give inadequate warnings or instructions, and the equipment being used might malfunction.
2. I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks.
3. I hereby voluntarily release … and hold harmless C.J.M. from any and all claims, demands, or causes of action which are in any way connected with my participation in this activity … including any such Claims which allege negligent acts or omissions of C.J.M … I have had sufficient opportunity to read this entire document, I have read and understood it, and I agree to be bound by its terms.”
Motion for Summary Judgment, Exs. A, D.
After signing the Release Forms, each of the riders was assigned a horse and proceeded on the trail ride. The parties agree that at some point during the ride Mrs. King was bitten by another rider’s horse. Plaintiffs allege that as a result of this incident they have suffered severe and permanent bodily injuries, pain [**4] and suffering, past and future medical expenses, lost wages, and other special and general damages. Plaintiffs claim that Defendant’s negligence was the proximate cause of these damages. Defendant argues that the signed Release Forms validly waive its liability for the Plaintiffs’ alleged injuries.
II. Procedural History.
Plaintiffs filed their Complaint in state court on February 27, 2003 and it was removed to this Court on May 14, 2003. The Complaint sets forth claims of:
I. Negligence; II. Negligence Per Se; III. Strict Liability; IV. Intentional and Negligent Infliction of Emotional Distress; V. Loss of Consortium; VI. Punitive Damages; and VII. Respondeat Superior.
On January 14, 2004, CJM filed this Motion for Summary Judgment. The Motion for Summary Judgment argues that Defendant is entitled to judgment as a matter of law because the Plaintiffs signed a valid waiver of liability. Plaintiffs filed their Opposition to the Motion for Summary Judgment on January 30, 2004.
The Opposition argues that the Motion for Summary Judgment should be denied because the Release Form is unenforceable as a waiver and in any event, does not include negligence claims. If the Court [**5] is inclined to grant Defendant’s Motion for Summary Judgment, Plaintiff alternatively requests that the Court order a continuance of the motion pursuant to Federal Rules of Civil Procedure, Rule 56(f). n1 Defendant filed its Reply on February 5, 2004. The Reply argues that negligence is explicitly covered by the waiver. The Reply does not address Plaintiff’s alternative request for a Rule 56(f) continuance.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n1 The Court need not address this alternative request because it is denying Defendant’s Motion for Summary Judgment.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
STANDARD
The purpose of summary judgment is to identify and dispose of factually unsupported [*1064] claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Summary judgment is therefore appropriate when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving [**6] party is entitled to judgment as a matter of law.” n2 Fed. R. Civ. P. 56(c).
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n2 Affidavits made on personal knowledge and setting forth facts as would be admissible at trial are evidence. Fed. R. Civ. P. 56(e). Legal memoranda and oral argument are not evidence and do not create issues of fact. See British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978).
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
“A fact is ‘material’ when, under the governing substantive law, it could affect the outcome of the case. A genuine issue of material fact arises if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” n3 Thrifty Oil Co. v. Bank of America Nat’l Trust & Sav. Ass’n, 310 F.3d 1188, 1194 (9th Cir. 2002) (quoting Union Sch. Dist. v. Smith, 15 F.3d 1519, 1523 (9th Cir. 1994)) (internal citations omitted). Conversely, where the evidence “could not lead a rational trier of fact to find for the nonmoving party, there is no [**7] ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)).
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n3 Disputes as to immaterial issues of fact do “not preclude summary judgment.” Lynn v. Sheet Metal Workers’ Int’l Ass’n, 804 F.2d 1472, 1478 (9th Cir. 1986).
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The moving party has the burden of persuading the Court as to the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party may do so with affirmative evidence or by “’showing’—that is pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. All evidence and reasonable inferences drawn therefrom are considered in the light most favorable to the nonmoving party. See, e.g., T.W. Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626,
630-31 (9th Cir. 1987). [**8] So, too, the Court’s role is not to make credibility assessments. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Accordingly, if “reasonable minds could differ as to the import of the evidence,” summary judgment will be denied. Id. at 250-51.
Once the moving party satisfies its burden, however, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a material issue of fact precludes summary judgment. See Celotex, 477 U.S. at 322-23, 91 L. Ed. 2d 265; Matsushita Elec., 475 U.S. at 586; California Arch. Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). Nor will uncorroborated allegations and “self-serving testimony” create a genuine issue of material fact. Villiarmo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002); see also T.W. Elec. Serv., 809 F.2d at 630. The nonmoving party must instead set forth “significant probative evidence tending to support the complaint.” T.W. Elec. Serv., 809 F.2d at 630. Summary judgment [**9] will thus be granted against a party who fails to demonstrate facts’ sufficient to establish an element essential to his case when that party will ultimately bear the burden of proof at proof at trial. See Celotex, 477 U.S. at 322.
[*1065] DISCUSSION
At issue in this Motion for Summary Judgment is whether the Release Form signed by Plaintiffs waives Defendant’s liability for the Plaintiffs’ alleged horseback riding injuries. Plaintiffs assert that the Release Form is unenforceable as a waiver and regardless, does not waive Defendant’s liability for its own negligent conduct allegedly contributing to their injuries.
Defendant claims that the Release Form constitutes a valid waiver of liability for Plaintiffs’ alleged injuries because the form clearly lists the risks associated with horseback riding and the horse-biting incident at issue constitutes one of these risks. Defendant also argues that the waiver explicitly waives liability for negligence.
As movant, Defendant has the burden of establishing that it is entitled to judgment as a matter of law by showing that there are no genuine issues of material fact as to whether the Release Form validly waives its liability [**10] for the Plaintiffs’ alleged injuries.
I. Hawaii Revised Statutes, Section 663-1.54.
Although neither party cites or discusses it, the Court finds that Hawaii Revised Statutes, Section 663-1.54, addressing “Recreational activity liability, “ applies to this case. Section 663-1.54 provides:
(a) Any person who owns or operates a business providing recreational activities to the public, such as, without limitation, scuba or skin diving, sky diving, bicycle tours, and mountain climbing, shall exercise reasonable care to ensure the safety of patrons and the public, and shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.
(b) Notwithstanding subsection (a), owners and operators of recreational activities shall not be liable for damages for injuries to a patron resulting from inherent risks associated with the recreational activity if the patron participating in the recreational activity voluntarily signs a written release waiving the owner or operator’s liability for damages for injuries resulting from the inherent risks. No waiver shall be valid [**11] unless:
(1) The owner or operator first provides full disclosure of the inherent risks associated with the recreational activity; and
(2) The owner or operator takes reasonable steps to ensure that each patron is physically able to participate in the activity and is given the necessary instruction to participate in the activity safely.
(c) The determination of whether a risk is inherent or not is for the
trier of fact. As used in this section an “inherent risk”:
(1) Is a danger that a reasonable person would understand to be associated with the activity by the very nature of the activity engaged in;
(2) Is a danger that a reasonable person would understand to exist despite the owner or operator’s exercise of reasonable care to eliminate or minimize the danger, and is generally beyond the control of the owner or operator; and
(3) Does not result from the negligence, gross negligence, or wanton act or omission of the owner or operator.
HRS § 663-1.54 (emphasis added).
A. Legislative History.
There is no Hawaii case law interpreting Section 663-1.54. The Standing Committee that drafted Section 663-1.54, described its [**12] purpose and function as follows:
“This measure is necessary to more clearly define the liability of providers of commercial recreational activities by statutorily validating inherent risk waivers signed by the participants. Your [*1066] Committee further finds that these inherent risk waivers … do not extend immunity to providers for damages resulting from negligence.”
Haw. Stand. Comm. Rep. No. 1537, in 1997 Senate Journal, at 1476. In substituting the provisions of Senate Bill 647 with those of House Bill number 581, which was codified into Section 663-1.54, the Standing Committee eliminated “the substantive provisions of S.B. No. 647, S.D.1, the Senate companion measure,” including a section “exempting the provisions of Chapter 663B, existing law regarding equine liability.” Id. n4 Thus, equine activities, such as the one at issue here, are covered by Section 663-1.54. n5
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n4 Section 663B-2(a) provides: “In any civil action for injury … of a participant, there shall be a presumption that the injury … was not caused by the negligence of an equine activity sponsor … or their employees or agents, if the injury … was caused solely by the inherent risk and unpredictable nature of the equine. An injured person … may rebut the presumption of no negligence by a preponderance of the evidence.” HRS § 663B-2(a). [**13]
n5 Section 663-1.54, addressing recreational activity liability, and Section 663B, addressing equine activities, are not mutually exclusive. Read together, these sections provide that a trier of fact must determine if injuries were caused by the “inherent risks” of a recreational activity. And if the trier of fact finds that the injuries were “caused solely by the inherent risk and unpredictable nature” of a horse, then there is a rebuttable presumption that the defendant’s negligence did not cause the injuries. The injured plaintiff may then rebut the presumption of no negligence by a preponderance of the evidence.
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Subsection (c), providing that “the determination of whether a risk is inherent or not is for the trier of fact,” is pertinent to the resolution of this Motion for Summary Judgment. HRS § 663-1.54(c). Unfortunately, legislative materials specifically addressing this part of Section 663-1.54 are not helpful to this analysis as they consist of the following: “Now let me say that we have, and I supposed admirably, set out to define what inherent risks are in subsection (c), but whether [**14] this is sufficient is not clear.” Debate on Haw. Stand. Comm. Rep. No. 753, in 1997 House Journal, at 408 (statement of Rep. Pendleton).
It is clear that given the statute’s 1997 enactment and specific focus on exculpatory agreements made with those “who own[ ] or operate[ ] a business providing recreational activities to the public” that on the issue of written waivers, Section 663-1.54 supplants every single case on which the parties rely to make their substantive arguments. These cases, however, may be pertinent to other possibly relevant claims and defenses such as negligence and implied assumption of risk. Most of the cases cited were decided prior to the statute’s enactment n6 and those that [*1067] were decided after 1997 do not address the effect of waivers on recreational activity liability as in Section 663-1.54. n7 Moreover, most of these cases do not interpret Hawaii law. Likewise, Defendant’s citation to Section 663-10.95, addressing the liability of “motorsports facility “ owners and operators, is inapplicable to this case. Motion for Summary Judgment, at 13 (citing HRS § 663-10.95). Based on the foregoing, the Court will apply Section 663-1.54 in resolving Defendant’s Motion [**15] for Summary Judgment.
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n6 See Grbac v. Reading Fair Co., 688 F.2d 215 (3rd Cir. 1982); Wheelock v. Sport Kites, Inc., 839 F. Supp. 730 (D. Haw. 1993); Marshall v. Blue Springs Corp., 641 N.E.2d 92 (1994); Huber v. Hovey, 501 N.W.2d 53 (1993); Masciola v. Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313, 628 N.E.2d 1067, 195 Ill. Dec. 603 (1993); Swierkosz v. Starved Rock Stables, 239 Ill. App. 3d 1017, 607 N.E.2d 280, 180 Ill. Dec. 386 (1993); Buchan v. U.S. Cycling Federation, Inc., 227 Cal. App. 3d 134, 277 Cal. Rptr. 887 (1991); Dobratz v. Thomson, 161 Wis. 2d 502, 468 N.W.2d 654 (1991); Guido v. Koopman, 1 Cal. App. 4th 837, 2 Cal. Rptr. 2d 437 (1991); Saenz v. Whitewater Voyages, Inc., 276 Cal. Rptr. 672, 226 Cal. App. 3d 758 (1990); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo. 1989); Harris v. Walker, 119 Ill. 2d 542, 519 N.E.2d 917, 116 Ill. Dec. 702 (1988); Kurashige v. Indian Dunes, Inc., 200 Cal. App. 3d 606, 246 Cal. Rptr. 310 (1988); Madison v. Superior Court, 203 Cal. App. 3d 589, 250 Cal.
Rptr. 299 (1988); Hulsey v. Elsinore Parachute Center, 168 Cal. App. 3d 333, 214 Cal. Rptr. 194 (1985); McAtee v. Newhall Land & Farming Co., 169 Cal. App. 3d 1031, 216 Cal. Rptr. 465 (1985); Krohnert v. Yacht Systems Hawaii, Inc., 4 Haw.
App. 190, 664 P.2d 738 (1983); Hewitt III v. Miller, 11 Wn. App. 72, 521 P.2d
244 (1974); Delta Air Lines, Inc. v. Douglas Aircraft Co., 238 Cal. App. 2d 95,
47 Cal. Rptr. 518 (1965); Lee v. Allied Sports Associates, Inc., 349 Mass. 544,
209 N.E.2d 329 (1965); Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y.2d 294, 177 N.E.2d 925, 220 N.Y.S.2d 962 (1961). [**16]
n7 Foronda v. Hawaii International Boxing Club, 96 Haw. 51, 25 P.3d 826 (2001) (holding that primary implied assumption of risk, evidenced by a signed waiver and plaintiff’s free participation in a boxing match, is a complete defense to claims of negligence where defendant’s conduct is an inherent risk of the sports activity); Fujimoto v. Au, 95 Haw. 116, 19 P.3d 699 (2001) (finding contract waiving general partners and landowners’ liability unenforceable where limited partners with unequal bargaining power sought to recover their investment in limited partnerships formed to develop real estate).
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B. Application.
Under Section 663-1.54, the Court must deny Defendant’s Motion for Summary Judgment for two reasons. First, Defendant argues that the Release Form validly waives Plaintiffs’ negligence claims but Section 663-1.54(a) explicitly precludes waiving liability for negligence. Thus, paragraph three (3) of the Release Form is void as to negligence.
Secondly, Section 663-1.54(c)’s provision that the “determination of whether a risk is inherent or not is for the [**17] trier of fact” automatically creates a genuine issue of material fact as to whether the horse-biting incident was an inherent of the horseback riding activity in which Plaintiffs participated. This statutorily-imposed genuine issue of fact precludes summary judgment as a matter of law. The trier of fact will have to decide whether the Release Form constitutes a valid waiver of Defendant’s liability. n8
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n8 The legislative history indicates that the statute’s proponents did not aim for this result. See Ammie I. Roseman-Orr, Comment, Recreational Activity Liability in Hawai’i: Are Waivers Worth The Paper On Which Thev Are Written?, 21. U. Haw. L. Rev. 715, 743-44 (1999) (“From the legislative testimony, it is apparent that the industry did not intend, nor was it aware, that this new law might eliminate summary judgment determinations of whether waivers are valid … Hawai’i’s new recreational activity liability statute, championed by the activity providers to protect the industry has instead eroded the common law protection it otherwise enjoyed.”).
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The Court finds that there are genuine issues of material fact as to: [1] whether Defendant was negligent; and [2] the Release Form’s validity as a waiver of liability, which depends on whether the horse-biting incident was an “inherent risk” of the recreational activity that Defendant provided to Plaintiffs. Defendant cannot satisfy its burden and thus, is not entitled to judgment as a matter of law.
CONCLUSION
The Court holds that there are genuine issues of material fact as to Defendant’s negligence and as to whether the Release Form constitutes a valid waiver of Defendant’s liability and accordingly DENIES Defendant’s Motion for Summary Judgment.
IT IS SO ORDERED.
DATED: Honolulu, Hawii, 18 FEB 2004
Alan C Kay
United States District Judge
WordPress Tags: Country,Stables,Supp,Dist,LEXIS,John,Patricia,Plaintiffs,Defendant,States,District,Court,Hawaii,February,DISPOSITION,Motion,Summary,Judgment,COUNSEL,David,Schutter,Christopher,Dias,Smith,Wong,Honolulu,Gale,Mitzi,Jane,Kwan,Hisaka,Goto,Yoshida,Cosgrove,JUDGES,Alan,Judge,OPINION,ORDER,BACKGROUND,waiver,injuries,Factual,History,September,Royal,Caribbean,Vancouver,Hawaiian,islands,Nawiliwili,Island,Kauai,desk,Upon,participants,Participant,Agreement,Release,Acknowledgement,Risk,Form,Both,signatory,injury,horses,behavior,characteristics,rider,jobs,warnings,instructions,equipment,participation,spite,action,Claims,omissions,Forms,riders,horse,incident,negligence,Procedural,Complaint,Strict,Intentional,Negligent,Infliction,Emotional,Loss,Consortium,Punitive,Damages,Respondeat,Superior,January,Opposition,event,Plaintiff,continuance,Federal,Rules,Civil,Procedure,Rule,Footnotes,STANDARD,purpose,Celotex,Corp,Catrett,admissions,affidavits,fact,knowledge,Legal,memoranda,argument,British,Airways,outcome,jury,verdict,Bank,America,Trust,Union,citations,trier,Matsushita,Elec,Indus,Zenith,Radio,Ariz,Cities,Serv,Disputes,Lynn,Sheet,Metal,Workers,absence,inferences,Pacific,Contractors,role,Anderson,Lobby,Once,disagreement,California,Arch,Bldg,Prods,Franciscan,Ceramics,allegations,self,testimony,Villiarmo,Aloha,DISCUSSION,Statutes,Section,Although,Recreational,person,limitation,bicycle,mountain,patrons,subsection,owners,operators,patron,owner,operator,disclosure,instruction,determination,danger,Does,omission,emphasis,Legislative,Committee,providers,waivers,Stand,Comm,Senate,Journal,Bill,House,companion,Chapter,Thus,presumption,employees,agents,preponderance,Read,analysis,Debate,statement,Pendleton,statute,enactment,agreements,arguments,assumption,Most,Moreover,Likewise,citation,Grbac,Fair,Wheelock,Sport,Kites,Marshall,Blue,Springs,Huber,Hovey,Masciola,Chicago,Metropolitan,Council,Swierkosz,Rock,Buchan,Federation,Rptr,Dobratz,Thomson,Guido,Koopman,Saenz,Whitewater,Voyages,Heil,Valley,Ranch,Simkin,Colo,Harris,Walker,Kurashige,Indian,Dunes,Madison,Hulsey,Parachute,Center,McAtee,Newhall,Land,Krohnert,Yacht,Systems,Hewitt,Miller,Delta,Lines,Douglas,Aircraft,Sports,Associates,Mass,Ciofalo,Tanney,Gyms,Foronda,International,Club,Fujimoto,landowners,investment,partnerships,estate,Application,Under,paragraph,provision,proponents,Ammie,Roseman,Comment,Hawai,Worth,Paper,Thev,Written,From,industry,determinations,protection,CONCLUSION,DENIES,Hawii,horseback,unenforceable,pleadings,whether
Wheelock v. Sport Kites, Inc, 839 F. Supp. 730; 1993 U.S. Dist. LEXIS 17050
Posted: January 6, 2014 Filed under: Hawaii, Legal Case, Release (pre-injury contract not to sue), Skydiving, Paragliding, Hang gliding | Tags: Activity Owners Association of Hawaiian, CJM Country Stables, Equine, Hawaii, Hawaiian Recreational Activity Liability Statute, Horse, Horseback, Horseback Ride, John King, Patricia King, stable Leave a commentWheelock v. Sport Kites, Inc, 839 F. Supp. 730; 1993 U.S. Dist. LEXIS 17050
Mary Rose Wheelock, individually, as Administratrix of the Estate of David William Wheelock, as Guardian Ad Litem for Maggie Wheelock and David William Wheelock, minors, Plaintiff, v. Sport Kites, Inc., a foreign corporation, dba Wills Wing, Rob Kells, an individual, Kualoa Ranch, Inc., a Hawaii corporation, and Sport Aviation Hawaii, Inc., a Hawaii corporation, Defendants.
Civ. No. 92-00768 HMF
United States District Court for the District of Hawaii
839 F. Supp. 730; 1993 U.S. Dist. LEXIS 17050
December 1, 1993, Decided
December 1, 1993, Filed
Counsel: [**1] For Mary Rose Wheelock, individually gal, Maggie Wheelock, minor gal, David William Wheelock, minor, plaintiff: Jeffrey R. Buchli, Carroll Smith & Buchli, Honolulu, HI. John S. Carroll, Carroll Smith & Buchli, Honolulu, HI.
For Sport Kites, Inc., a foreign corporation dba Wills Wing, Rob Kells, an individual, defendants: Leighton K. Oshima, Patrick I. Wong, Wong Oshima & Kondo, Honolulu, HI. For Kualoa Ranch, Inc., a Hawaii corporation, defendant:
Sidney K. Ayabe, a, Rodney S. Nishida, Libkuman Ventura Ayabe Chong & Nishimoto, Honolulu, HI. For Sport Aviation Hawaii, Inc., a Hawaii corporation, defendant:
Randolph R. Slaton, Law Offices of Randolph R. Slaton, Honolulu, HI.
For Kualoa Ranch, Inc., cross-claimant: Sidney K. Ayabe, a, Libkuman Ventura Ayabe Chong & Nishimoto, Honolulu, HI.
For Sport Kites, Inc. dba Wills Wing, ROB KELLS, cross-defendants: Leighton K.
Oshima, Patrick I. Wong, Wong Oshima & Kondo, Honolulu, HI.
For Sport Aviation Hawaii, Inc., cross-claimant: Randolph R. Slaton, Law Offices of Randolph R. Slaton, Honolulu, HI.
For Sport Kites, Inc. dba Wills Wing, ROB KELLS, cross-defendants: Leighton K.
Oshima, Patrick I. Wong, Wong Oshima & Kondo, Honolulu, [**2] HI.
Judges: Fong
Opinion by: Harold M. Fong
Opinion:
[*733] Order Granting Plaintiff’s Motion To Dismiss Non-Diverse Parties And Denying Defendants’ Motion To Dismiss For Lack Of Diversity Jurisdiction; Order Granting In Part And Denying In Part Defendants’ Motion For Summary Judgment
Introduction
This is a wrongful death action. On November 1, 1993, the court heard arguments on three motions: (1) defendant Kualoa Ranch, Inc.’s motion for summary judgment; (2) Kualoa Ranch’s motion to dismiss for lack of diversity jurisdiction; and (3) plaintiff’s motion to dismiss non-diverse parties to the complaint to preserve diversity jurisdiction.
Background
This action arises from the accidental death of David Wheelock (“David”). On July 14, 1991, David was paragliding at Kualoa Ranch. He was at a height of between 1,000 and 1,500 feet when the lines connecting him to the parachute-like canopy simultaneously broke, detaching him. He plunged to the earth and died.
Mary Rose Wheelock, David’s wife, brought this action n1 against Kualoa Ranch, owner of the premises where the activity occurred, Sport Aviation Hawaii, provider of the equipment, and Sport Kites, Inc., dba Wills Wing, and Rob Kells, an individual, manufacturers [**3] of the equipment.
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n1 Mrs. Wheelock brought the action individually, as administratrix of her husband’s estate, and as guardian ad litem for their children.
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Kualoa Ranch filed a motion to dismiss plaintiff’s complaint for lack of diversity jurisdiction. Plaintiff concedes that there is currently a lack of diversity: plaintiff is a citizen of California and defendant Sports Kites is a California corporation. On July 29, 1993, however, plaintiff reached a settlement agreement with Wills Wing and Rob Kells voluntarily dismissing all claims against them with prejudice. Plaintiff has thus filed a motion to dismiss Sport Kites, Inc., the sole non-diverse party to the complaint, to preserve diversity jurisdiction.
Kualoa Ranch has also filed a motion for summary judgment, joined by Sport Aviation Hawaii, on the grounds that plaintiff is barred from recovery because of an agreement and release of liability signed by David. On June 16, 1991, David signed the agreement as a precondition to use of the facilities and paragliding [**4] equipment. The agreement is a one-page, pre-printed, fill-in-the-blank form. Under its terms, David agreed to release and discharge Kualoa Ranch, Sport Ranch, and others from liability for injuries suffered while paragliding. n2
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n2 The agreement, entitled an ‘Agreement and Release of Liability,” provides, in relevant part, that:
1. I hereby RELEASE AND DISCHARGE [defendants and others] . . . from any and all liability, claims, demands or causes of action that I may have for injuries and damages arising out of my participation in Ultralight activities, including but not limited to, losses CAUSED BY THE NEGLIGENCE OF THE RELEASED PARTIES.
2. I further agree that I WILL NOT SUE OR MAKE A CLAIM against the Released Parties for damages or other losses sustained as a result of my participation in Ultralight activities. I also agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgments and costs, including attorney’s fees, incurred in connection with any action brought as a result of my participation in Ultralight activities.
3. I understand and acknowledge that Ultralight activities have inherent dangers that no amount of care, caution, instruction, or expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF DEATH OR PERSONAL INJURY SUSTAINED WHILE PARTICIPATING IN ULTRALIGHT ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF THE RELEASED PARTIES.
5. I hereby expressly recognize that this Agreement & Release of Liability is a contract pursuant to which I have released any and all claims against the Released Parties . . . .
I HAVE READ THIS AGREEMENT & RELEASE OF LIABILITY, FULLY UNDERSTAND
ITS CONTENTS AND MEANING, AND SIGN IT OF MY OWN FREE WILL.
David signed and dated it at the bottom, and initialed at nine pre-printed blank spaces, including one at each paragraph.
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DISCUSSION
I. KUALOA RANCH’S MOTION TO DISMISS COMPLAINT FOR LACK OF DIVERSITY JURISDICTION AND MARY ROSE WHEELOCK’S COUNTER-MOTION TO DISMISS NON-DIVERSE PARTIES.
The principal requirements of diversity jurisdiction are that the amount in controversy exceed $ 50,000 and that the parties be citizens of different states. 28 U.S.C. § 1332. There is no dispute as to the citizenship of the parties for purposes of diversity: plaintiff n3 and defendant Sport Kites, Inc. are citizens of California, and defendants Kualoa Ranch and Sport Aviation are citizens of Hawaii.
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n3 The relevant citizenship of plaintiffs in a wrongful death action is that of the decedent. 28 U.S.C. § 1332(c)(2). It is undisputed that the domicile of David, the decedent, was in California.
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The court will dismiss Sport Kites unless doing so will prejudice the remaining defendants. Rule 19 of the Federal Rules of Civil Procedure, which sets forth the rules for joinder [**6] of persons needed for a just adjudication, provides that in determining whether a party is indispensable, the court should consider “whether in equity and good conscience the action should proceed among the parties before it, or be dismissed.” A dispensable non-diverse party may be dismissed to perfect retroactively the district court’s original jurisdiction. Continental Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1522-23 (9th Cir. 1987); Othman v. Globe Indem. Co., 759 F.2d 1458, 1463 (9th Cir. 1985); Inecon Agricorporation v. Tribal Farms, Inc., 656 F.2d 498, 500 (9th Cir. 1981). Refusal by the court to dismiss a dispensable, non-diverse party may constitute an abuse of discretion. Kerr v. Compagnie de Ultramar, 250 F.2d 860, 864 (2d Cir. 1958).
Defendants claim that they will be prejudiced because Sports Kites, Inc. designed and manufactured the allegedly defective paraglider, and unless they remain as defendants, they will not be part of the special verdict form submitted to the jury, pursuant to Hawaii Revised Statutes § 663-11 et seq., [**7] for determination of comparative fault. The court, however, may include a non-party on the special verdict form for apportionment of fault. See, e.g., In re Hawaii Federal Asbestos Cases, 960 F.2d 806 (9th Cir. 1992) (where the jury attributed a percentage of fault to non-parties). The statute does not require that fault be apportioned only among parties to the lawsuit.
Plaintiff has already settled with Rob Kells and Wills Wing, the parties destroying diversity, and will not be prejudiced by their dismissal. Defendants are not prejudiced because they may bring a third-party complaint against Sport Kites for indemnification, and their ability to defend plaintiff’s suit is unimpaired. The greatest source of potential prejudice is to plaintiff if the court dismisses for lack of diversity jurisdiction because the statute of limitations has expired on her claims.
II. KUALOA RANCH’S MOTION FOR SUMMARY JUDGMENT.
Plaintiff in a wrongful death action is subject to defenses which could be asserted against the decedent. See Saenz v. Whitewater Voyages, Inc., 226 Cal. App.3d 758, 763-64, 276 Cal. Rptr. 672 (Cal. App. 1990); [**8] Madison v. Superior Court, 203 Cal. App.3d 589, 250 Cal. Rptr. 299 (Cal. App. 1988).
Defendants thus raise the defense which they would have had against David—his agreement. The agreement provided, inter alia, that David agreed to release and discharge defendants Kualoa Ranch, Sport Aviation, and others from any liability, including “losses caused by the negligence of the released parties.”
The issue before the court on the motion for summary judgment is whether to give effect to the release of liability signed by David (and initialed at each paragraph).
A. David Wheelock Expressly Assumed the Risk of Death.
Defendants contend that signing the agreement constituted an assumption of risk by David. If the agreement is valid, they argue, it operates to relieve them of any legal [*735] duty to protect David from the injury-causing risk.
The agreement signed by David was a standardized, pre-printed form. It was an adhesion contract of the sort frequently offered to consumers of goods and services on a “take-it-or-leave-it” basis. In Leong v. Kaiser Found, Hospitals, 71 Haw. 240, 247-48, 788 P.2d 164 (1990), [**9] the Hawaii Supreme Court addressed the problem of such contracts:
An adhesion contract is a form contract created by the stronger of the contracting parties. It is offered on a “take this or nothing” basis. Consequently, the terms of the contract are imposed on the weaker party who has no choice but to conform. These terms unexpectedly or unconscionably limit the obligations of the drafting party. Because of these circumstances, some courts look past the wording of the contract and consider the entire transaction in order to effectuate the reasonable expectations of the parties. Ambiguities in the contract will be construed against the drafters and in plaintiff’s favor. (citing Robin v. Blue Cross Hosp. Serv., Inc., 637 S.W.2d 695, 697 (Mo. 1982).
While the agreement in the case at bar was an adhesion contract, it is not unconscionable. It is of a sort commonly used in recreational settings. See, e.g., Saenz v. Whitewater Voyages, Inc., 226 Cal. App.3d 758, 276 Cal. Rptr. 672 (Cal. App. 1990) (whitewater rafting); Westlye v. Look Sports, Inc., 17 Cal. App. 4th 1715, 22 Cal. Rptr.2d 781 (Cal. App. 1993) [**10] (skiing). Such agreements are generally held to be valid. Adhesion contracts are fully enforceable provided that they are not unconscionable and do not fall outside the reasonable expectations of the weaker or adhering party. See Graham v. Scissor-Tail, Inc., 28 Cal.3d 807, 820, 623 P.2d 165, 171 Cal. Rptr. 604, 612 (1981).
In Saenz, 226 Cal. App.3d at 758, the court barred recovery in a wrongful death action because plaintiff had signed a release expressly assuming the risk of the activity. Saenz had signed a “release and assumption of risk” agreement in order to participate in a three-day whitewater rafting trip on which he drowned. The court found that the release constituted an express assumption of risk and acted as a bar to a wrongful death action. Id. at 765.
Plaintiff argues that Saenz is distinguishable in the extent of the decedent Saenz’s knowledge of the assumed risk. He received extensive warning regarding the risk, extensive preparation, and several opportunities to avoid the particular rapids in which he drowned. [**11] n4 In contrast, David received some, less extensive explanation of the dangers of paragliding. n5 Although David did sign and initial the agreement providing that he assumed all risks, plaintiff argues that there is a question of fact as to David’s state of mind and the parties’ understanding.
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n4 He was given several safety talks on emergency procedures, lessons, explanations of how to run the particular rapid, and a number of opportunities to opt out of riding the rapid in which he drowned. 276 Cal. Rptr. at 678.
n5 William Fulton, president of defendant Sport Aviation, avers that he warned David and informed him of the dangers of paragliding before he signed the release.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –
Plaintiff also argues that Saenz is distinguishable in terms of the nature of the risk assumed. The Saenz court referred to the risk of drowning in treacherous rapids as “inherent in whitewater rafting and apparent to anyone.” Id. at 766. According [**12] to plaintiff, while injury or death caused by treacherous winds, improper landings, or collision with an obstacle are “apparent” risks, the risk which befell David—the simultaneous breaking of all lines connecting him to the parachute—was not apparent. The Saenz court held that defendant’s assumption of all risks, known and unknown, made knowledge of the particular risk (death by drowning) unnecessary. Id. The court need not adopt so broad a holding. A risk must be a known risk for it to be properly assumed. Prosser & Keaton, Torts, § 68 at 480-81 (5th ed. 1984).
The court is satisfied that David knowingly assumed the risk at issue. The agreement provided that David “expressly [*736] and voluntarily assume[d] all risk of death or personal injury sustained while participating in ultralight activities whether or not caused by the negligence of the released parties.” (capitalization omitted). The risk which befell David was the risk of death.
David expressly assumed this risk. Plaintiff could characterize it in many different ways, but the fact is that David assumed the risk of death. Moreover, the apparent cause of David’s fall and subsequent death—equipment failure — [**13] is an obvious risk in paragliding and other “air” sports.
B. The Agreement Does Not Affect Plaintiff’s Gross Negligence and Strict Liability Claims.
1. Plaintiff’s Negligence Claims Are Barred.
David’s assumption of risk relieves defendants from any legal duty towards him, except insofar as the law nullifies such a waiver. Plaintiff is thus barred from bringing any negligence claims against defendants.
Hawaii courts permit a waiver of negligence claims. In Krohnert v. Yacht Systems Hawaii, Inc., 4 Haw. App. 190, 198, 664 P.2d 738 (Haw. App. 1983), the court declared that absent a public interest, “a party can contract to exempt himself for harm caused by his negligence.” (citing Restatement (Second) of Contracts and Williston on Contracts). Accord, Madison v. Superior Court, 203 Cal. App.3d 589, 599, 250 Cal. Rptr. 299, 305 (Cal. App. 1988). Although Hawaii courts have not specifically addressed the issue, courts in other jurisdictions have rejected the notion that the public interest is at stake in sport- or recreational-related waivers. See Saenz, supra. [**14] Plaintiff’s claims under negligence theories are effectively barred, and defendants are entitled to summary judgment vis-a-vis these claims.
2. Plaintiff’s Gross Negligence Claims Are Unaffected.
Plaintiff alleges gross negligence on defendant’s part in misrepresenting the safety of the paraglider. This is a distinct theory of liability from negligence. Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances. Gross negligence, by contrast, is a failure to perform a manifest duty in reckless disregard of the consequences. “Gross negligence involves a risk substantially greater in amount than that which is necessary to make conduct negligent.” Bunting v. United States, 884 F.2d 1143, 1147 (9th Cir. 1989). The Restatement (Second) describes the difference between gross and ordinary negligence as follows: “[Gross negligence] differs from that form of negligence which consists of mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor to cope with a possible or probable future emergency.” Restatement (Second) of Torts § 500 cmt. g (1965). [**15]
Hawaii courts have not addressed the issue of whether a party can contract away liability for his own gross negligence. Because this is a diversity action, the court applies the substantive law of the forum state, Hawaii, and uses its best judgment in predicting how the Hawaii Supreme Court would decide this issue. See Takahashi v. Loomis Armored Car Serv., 625 F.2d 314, 316 (9th Cir. 1980). In Krohnert, 4 Haw. App. at 198, the court enunciated the principle that a party can only contract away liability for negligence in the absence of a public interest. The public interest is at stake when a party attempts to contract to exempt himself for harm caused by his gross negligence. See Stuart Rudnick, Inc. v. Jewelers Protection Servs., Ltd., 194 A.D.2d 317, 598 N.Y.S.2d 235, 236 (N.Y. App. Div. 1993); see also Saenz, 226 Cal. App.3d at 765 (“everything short of gross negligence is covered by the release . . . .”). The agreement in the instant case is therefore void against public policy to the extent that it attempts to relieve defendants of liability [**16] for their gross negligence. n6
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n6 Alternatively, the court has grounds to find that the contract is ambiguous as to gross negligence. While the release and discharge agreement is a valid contract, it is an adhesion contract, and the court will interpret it accordingly. Adhesion contracts are construed liberally in favor of the adhering party and any ambiguities are resolved against the drafting party. See State Farm Mut. Auto. Ins. Co. v. Fermahin, 73 Haw. 552, 556, 836 P.2d 1074 (1993) (interpreting an insurance contract) (citation omitted). The court applies this rule only if there is a true ambiguity, and not merely because the parties disagree over its interpretation. Id. at 556. “Ambiguity exists ‘only when the contract taken as a whole, is reasonably subject to differing interpretation. A court must respect the plain terms of the policy and not create ambiguity where none exists.’” Id. at 556-57 (citations omitted). The release agreement, however, addresses only negligence and not gross negligence. The court will construe this as not barring a claim in gross negligence.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [**17]
[*737] 3. Plaintiff’s Strict Liability Claims.
The remaining question is whether the waiver of plaintiff’s strict products liability claims is effective. This is also an issue of first impression in Hawaii. See Takahashi v. Loomis Armored Car Serv., 625 F.2d at 316.
In Madison, 203 Cal. App.3d at 596, the California court of appeals held that the waiver constituted a “complete defense” to any claims in plaintiff’s actions. Accord, Saenz, 226 Cal. App.3d at 763. Neither court addressed the issue of strict products liability claims. More recently, however, a California appellate court held that an agreement relieving a product supplier from strict products liability is void. In Westlye v. Look Sports, Inc., 17 Cal. App. 4th 1715, 22 Cal. Rptr.2d 781 (Cal. App. 1993), the court held that a release agreement did not bar plaintiff who suffered skiing injuries from suing under a strict products liability theory in tort:
there is a strong policy against allowing product suppliers to disclaim liability for injuries caused [**18] by defects in products they place on the market. To allow product suppliers to achieve this prohibited result merely by substituting assumption of risk language for disclaimer language would too easily allow circumvention of these policies. In effect, such an agreement is nothing more than a disclaimer. Id. at 17-18.
The court rejected defendants’ argument that the express assumption of risk was good against the whole world. Id. at 1716 (“we have not discovered any authority for this proposition. The doctrine of express assumption is founded on express agreement.”). Westlye is well reasoned and solidly grounded in relevant policy considerations. The essence of the doctrine of strict liability, as enunciated by Justice Traynor in Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 461, 150 P.2d 436 (1944) (Traynor, J., concurring), is that a manufacturer who places a product on the market should be absolutely liable if it knows that the product will be used without inspection and is shown to have an injury-causing defect. See also Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 62, 377 P.2d 897, 27 Cal. Rptr. 697 (1963) [**19] (applying the doctrine of strict liability as formulated by Traynor in Escola). The doctrine of strict liability is based not only on the public policy of discouraging the marketing and distribution of defective products, but also on the reasoning that a manufacturer is in a far better position than individual consumers to insure against the risk of injury and to distribute costs among consumers.
The court sees no reason to permit defendants to insulate themselves from strict liability by means of a release when they could not do so otherwise.
Insofar as the agreement signed by David attempts to relieve product suppliers of their responsibility for injuries caused by defective products, it is squarely at odds with the strict products liability doctrine. The very reason for the growth of products liability law was a perceived need to protect consumers from defective products and from attempts by product suppliers to disclaim responsibility for such defects by way of contractual provisions. See Seely v. White Motor Co., 63 Cal.2d 9, 16-17, 403 P.2d 145, 45 Cal. Rptr. 17 (1965); Vandermark v. Ford Motor Co., 61 Cal.2d 256, 391 P.2d 168, 37 Cal. Rptr. 896 (1964) [**20] (“since [the dealer] is strictly liable in tort, the fact that it restricted its contractual liability to [plaintiff] is immaterial.”); Greenman, 59 Cal.2d at 57, 377 P.2d at 897. With respect to claims for strict liability, David’s waiver is thus void as against public policy.
Hawaii courts have recognized that lessors of products who are in the business of leasing are subject to strict products liability. Stewart [*738] v. Budget Rent-A-Car Corp., 52 Haw. 71, 75, 470 P.2d 240 (1970). Accord, Price v. Shell Oil Co., 2 Cal.3d 245, 250, 466 P.2d 722, 725, 85 Cal. Rptr. 178, 181 (1970). Plaintiff’s claims in strict liability against Kualoa Ranch and Sport Aviation are not precluded by the release agreement.
C. The Agreement Is Not Ambiguous.
Plaintiff claims that the agreement is ambiguous because it includes the following paragraph:
6. It is understood that the purchase of this waiver does not constitute a contract of insurance but only a waiver of the contractual defenses that would otherwise be available to the Released Parties.
[**21]
Plaintiff claims that this paragraph indicates that David was purchasing a waiver of the contractual defenses available to defendants, and that the agreement itself would constitute a defense which is being waived. She argues that it is thus ambiguous as to whether such defenses are being waived.
Plaintiff points out correctly that courts regard attempts to contract away tort liability with skepticism, Gardner v. Downtown Porsche Audi, 180 Cal. App.3d 713, 716, 225 Cal. Rptr. 757 (Cal. App. 1986), and that an attempt to do so must be “clear, explicit, and comprehensible in each of its details.” Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd., 147 Cal. App.3d 309, 319, 195 Cal. Rptr. 90 (Cal. App. 1983). The court will resolve ambiguities in such contracts against the drafting party. See State Farm Mut. Auto. Ins. Co. v. Fermahin, 73 Haw. 552, 556, 836 P.2d 1074 (1992) (interpreting an insurance contract) (citation omitted).
Before an exculpatory clause may be enforced against a party, it must be established that he clearly and unequivocally [**22] agreed to the disclaimer with knowledge of its contents. Krohnert, 4 Haw. App. at 200, 664 P.2d at 744 (citations omitted). The court, however, only applies this rule in the event of a true ambiguity, and not merely because of a confusing passage. “Ambiguity exists ‘only when the contract taken as a whole, is reasonably subject to differing interpretation. A court must respect the plain terms of the policy and not create ambiguity where none exists.’” Id. at 556-57 (citations omitted). In this case, the contract, taken as a whole is unambiguous.
D. There Is No Genuine Issue of Material Fact as to Whether the Decedent Agreed to the Release with Knowledge of Its Contents.
Plaintiff contends that it is unclear whether David signed the agreement with clear and unequivocal knowledge of its terms. David is dead and thus unavailable to testify.
Defendants have come forward, however, with the affidavit of William Fulton, president of Sport Aviation, averring that he explained and warned David of the dangers at length before David signed the agreement. Moreover, there is no dispute that David signed the agreement and initialed it at the [**23] title and each paragraph. Plaintiff has not come forward with any evidence contradicting the Fulton affidavit and the signed agreement. There thus appears to be no genuine issue of material fact as to whether David signed the agreement with knowledge of its terms and of the dangers involved in paragliding.
CONCLUSION
For the reasons given, the court GRANTS plaintiff’s motion to dismiss non-diverse parties and DENIES defendants’ motion to dismiss for lack of diversity jurisdiction. Plaintiff has already settled with Sport Kites, Inc., dba Wills Wing and Rob Kells, the non-diverse defendants, and Sport Kites is not indispensable within the meaning of Rule 19 of the Federal Rules of Civil Procedure. n7
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n7 The court understands that the remaining defendants will seek to prosecute a third-party complaint against Sport Kites as designers and manufacturers of the equipment. In the event that a third-party complaint may not be prosecuted, Sport Kites may still be included as non-parties on the special jury forms for assessment of its share of liability under Hawaii’s comparative negligence framework.
– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [**24]
For the reasons given, the court GRANTS in part and DENIES in part defendants ‘ [*739] motion for summary judgment. The release and discharge agreement signed by David Wheelock is valid and enforceable, and a plain reading of the agreement indicates that David expressly assumed the risk of death—the risk which befell him—and waived his right to any negligence claims against defendant. Plaintiff’s negligence claims are barred on this basis. The release and discharge is void, however, as it applies to plaintiff’s claims for gross negligence and strict liability, because the assumption of risk is ineffective vis-a-vis these claims.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 1, 1993
Harold M. Fong
UNITED STATES DISTRICT JUDGE
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So if you write standards, you can, then use them to make money when someone sues your competitors.
Posted: January 2, 2014 Filed under: Climbing Wall | Tags: Alpine Tower, Climbing Wall, Expert Witness, Industry, Lawsuit, Standards Leave a commentI’m sort of speechless (but I can still type) about this whole thing. The amount of money lost in the lawsuit, the way the lawsuit was lost and now this article. The expert witness for the plaintiff seems not to be interested in protecting the industry.
This article describes a tragedy. A climber failed to clip into an auto belay. At the top of the climb she let go, falling to her death. What is the interesting, the article is not the results of the investigation into her death, it is the statements by the “expert” who is quoted.
“It is a well-known problem in the industry,” said [expert], who is a climbing gym owner in Virginia. He helped write industry safety standards, and provide expert witness testimony for people who are injured in gym accidents.
“My opinion is, yes, a gym has some responsibility to make sure that you’re warned and protected to some degree from yourself,” Hague said.
Maybe he was quoted wrong? However, I doubt it. He was an expert for the plaintiff in Keeter v. Alpine Towers International, Inc., 399 S.C. 179; 730 S.E.2d 890; 2012 S.C. App. LEXIS 171 which cost the defendant $4.7 million. I wrote about this case in Plaintiff uses standards of ACCT to cost defendant $4.7 million.
What is going to happen if someone is injured in his gym? Do you believe any other gym owners will line up to testify about any breach of standards?
The expert may be correct about his assessment on whether the standards are breached. However, there are a lot of adages about messing around in your own industry.
His statement about the gym having a responsibility to make sure that you’re warned and protected to some degree from yourself……really? Maybe I don’t want you to protect me?
So how do you know that the person helping you write standards is not there to sue you over the standards that are being written? It happens. The playground industry has created standards so tough and expensive to meet it is cheaper to bull doze a playground than to meet the standards. See Playgrounds will be flat soon. However, that could be better for the kids. See An example of adults and money getting in the way of kids has fun.
This is another way that writing standards comes back to haunt you. You create experts who can then show that you are liable.
See Human error blamed for Grapevine climbing wall death
What do you think? Leave a comment.
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An Epic Ride Through the Grand Canyon Kevin Fedark presents his award winning book The Emeral Mile
Posted: December 31, 2013 Filed under: Youth Camps, Zip Line | Tags: Colorado River, Emerald Mile, Grand Canyon, Kevin Fedarko Leave a commentRegister to join us for this free reception and lecture by Kevin Fedarko, author of The Emerald Mile. CFWE is partnering with Metropolitan State University of Denver’s One World One Water Center to bring you this memorable evening– please join us on January 9, 2014 for a 6 pm reception and 7 pm lecture at the Marriott SpringHill Suites on the Auraria Campus of MSU Denver: 1190 Auraria Parkway, Denver, CO 80204.
Interested? The event is free, but you must RSVP here.
Sometimes you get screwed; here Petzl was shafted by the court.
Posted: December 30, 2013 Filed under: Climbing Wall, New York | Tags: Climbing Wall, Defective Design, Failure to Warn, Gear Loop, Harness, Inc., Petzl, Petzl USA, Product liability, Sport Rock International, Town Sports International, Warning label 1 CommentIn this product liability case, improper use of a climbing harness at a climbing wall led to a lawsuit. The injured climber was climbing at the gym and helped by an untrained employee. In this case, when a judge wants you to pay, you are going to suffer.
In this case, a manufacturer (Petzl) sold climbing harnesses to a climbing wall builder (Sport Rock International, Inc.) who sold a harness to a New York- climbing gym. A gym employee attached a beginner climber to the harness using a gear loop rather than the normal tie in points. The employee had little training and knew not to tie into the gear loop but accidentally did so. The beginning climber fell thirty feet when the gear loop ripped and was injured.
Anaya v Town Sports International, Inc., et al., 2007 NY Slip Op 7875; 2007 N.Y. App. Div. LEXIS 10819
Plaintiff: Joseph Anaya
Defendant: Town Sports International, Inc., et al., Sport Rock International, Inc., et al. (et al in this case means and others, including Petzl America, Inc.)
Plaintiff Claims: negligence and strict products liability (defectively designed and insufficient warnings)
Defendant Defenses:
Holding: mostly for the plaintiff
The plaintiff sued under theories of negligence and strict product’s liability. The strict product’s liability claims were for defective design of the harness and insufficient warnings on the harness. The warning issue was specifically for failure to warn of where the correct tie in point on the harness was located.
The climbing wall was also sued for negligence and product liability. The climbing wall settled with the injured plaintiff and was not part of this lawsuit. In this case, the climbing wall was a retailer because the harness, although not technically sold to a consumer, was moved into the consumer market by the climbing gym. In a product liability lawsuit, all entities in the chain of sale from the manufacturer to the consumer are brought into court.
The climbing wall and manufacturer filed separate motions for summary judgment, and the trial court granted the motions. The plaintiff appealed, and the appellate court reversed the decision of the trial court and sent the case back down for trial.
Summary of the case
To prove a case for product liability based on defective design in New York the plaintiff must prove “the product was not reasonably safe and that the defective design was a substantial factor in causing plaintiff’s injury….” This argument is similar to the proximate causation argument for a simple negligence claim; however, it is reversed. The plaintiff must prove he was injured first and that the cause of his injury was substantially caused by the design flaws of the product.
With respect to the first element — whether the product was not reasonably safe — the proper inquiry is “whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner”
In balancing the product’s risks against its utility and cost, the following factors must be considered: “(1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product – that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) the ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and (7) the manufacturer’s ability to spread any cost related to improving the safety of the design”
This test is a little more reversed than you first might think about it. The reasonable man test is not that of the manufacturer but of someone in the community with the average knowledge and experience of a person in the community. For those things, we all know and understand such as driving, eating at a restaurant or going to a movie, the test makes sense. We understand how everything works and what we believe is best because we have experienced it.
However, for those activities or actions only practiced or experienced by a few, that test creates an education problem. You must educate the judge and the jury and convince them that the standard you are arguing is reasonable. This is difficult when they may have no idea what you are talking about.
This is a no-win test for the harness manufacturer because attempting to argue that more warnings would either defeat the use of the harness, defeat the ability to use the harness, or cost too much to create and attach to the harness is simply impossible to do. That means the test is comparing the cost of adding additional labels that warn of the risk of tying into a gear loop versus the potential for injury. The potential for injury is almost absolute, thus the manufacturer is going to fail that test 99 times out of 100 if not all the time.
For rock climbing, it is impossible to meet the test in most situations because so few people understand rock climbing. They have no experience in tying into a harness and climbing a wall. To many the whole concept is alien and scary.
While a few people who are not climbers may understand how a harness works, it is likely that knowledge will be based on work harnesses, which have no gear loops and can only be used one way. This difference alone leads to confusion and misunderstanding. If the government, OSHA, does not allow or require gear loops why did the climbing wall manufacturer have them on its harness. The harness is only seen as safety item, not as a way to haul gear and a chalk bag….as well as catch a fall.
The court made this conclusion.
Since the harness was undoubtedly meant to bear the weight of a climber, it was reasonably foreseeable that a climber might attempt to attach a safety line to various parts thereof and expect those parts to bear his weight.
Simple statement for the court to make. The harness is meant to catch the wear in a fall; therefore, all parts of the harness should be able to catch the wearer in a fall.
The manufacturers of climbing harnesses make the gear loops appear flimsy so that a climber would know not to tie into a gear loop. Whether this is an effective way to warn people that a gear loop is not meant to catch a fall was determined by the court to be a question of law to be determined by the jury. Consequently, the court had issues and did not reverse the trial court and sending the case back for trial.
The failure to warn argument was then reviewed by the court. The test of failure to warn is “A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known.”
Petzl warned about the gear loop in the manual. There was also a small label with a skull and crossbones on it, which directed the user to read the manual. The flaw in this situation is the harness had been sold to a climbing wall where it would be used by dozens of climbers, none the owner of the harness and none having access to the manual.
An expert witness for the plaintiff testified that the skull and crossbones label was insufficient to give rise to notice to the consumer of the risk of tying into the gear loop. Here again, the question of fact was one that had to be determined by a jury.
What makes this case so difficult to accept is, the gear loops and labels used by Petzl are standard in the industry. We, in the industry are used to the labels and understand them. Again, the test is not of someone in the industry but of a reasonable man walking down any street, in any town USA.
The defendants then argued that the employee of the climbing gym was an intervening person between the defendant’s acts (making and selling the harness) and the injury. However, the judge rejected this argument because the intervening act cannot be a defense if it is foreseeable that someone would tie into a gear loop.
The manufacturer admitted to knowing of other cases in which people tied into the gear loop of harnesses. This knowledge then eliminated the defense that the injury was unreasonably foreseeable. This test looks at whether or not the average person in the community could guess that a person would tie in incorrectly and whether this knowledge should have been known by the manufacture. Since the manufacturer knew of similar situations then it was foreseeable.
One of the issues that jumps out of this case in reading the decision, is the court wanted to use language that assisted the plaintiff or at least was incorrect. A perfect example was calling the belay rope the safety line.
So Now What?
If you are a manufacturer, you must make sure that your warnings are sufficient that people not associated with the industry can understand their meaning. Here the appellate court had probably never worn a harness and could not understand or see the risk the warning label was attempting to identify.
If believe your market is big enough, then selling a harness to beginners (climbing gyms) that is simple and requires no warning labels might work. With no opportunity to tie into anywhere but the one tie point you eliminate this need. However, you have also eliminated part of the market that wants to get a beginning harness that can grow as their experience does. I.e. a harness that has a gear loop.
Another way would be to eliminate the warnings found in the manual and permanently attach them to the harness. A laminated or plastic card could hang from the chalk bag loop and be obvious to any climber. Beginners are not going to worry about 10 grams of weight the warning card would add to the harness. Sell the harness only to climbing gyms or rope’s courses, etc. and supply a dozen cards with each harness. Require the purchaser to put a new card on the harness anytime a harness is found without one.
Another possibility is to create a more direct relationship between the manufacturer and the user. Not the consumer but climbing walls, zip lines, rope’s courses, and guide services, etc. This relationship, if contractual (and in writing) can say that for a discount, the parties will indemnify each other, follow the rules and consider the relationship a commercial transaction, not that of a consumer transaction.
Even though Petzl had the requisite warning label on its harness, and even though it is common knowledge among anyone with any experience as a climber tying into a gear loop is not safe (as the climbing gym employee did), Petzlbecame a party to the lawsuit once an appellate court decided that the warning labels on the harness, which have been used in several other industries, were not adequate to keep the harness manufacture out of court.
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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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Anaya v Town Sports International, Inc., 2007 NY Slip Op 7875; 44 A.D.3d 485; 843 N.Y.S.2d 599; 2007 N.Y. App. Div. LEXIS 10819
Posted: December 30, 2013 Filed under: Climbing Wall, Legal Case, New York | Tags: Climbing Wall, Defective Design, Failure to Warn, Gear Loop, Harness, Inc., Petzl, Petzl USA, Product liability, Sport Rock International, Town Sports International, Warning label Leave a commentTo read an Analysis of this decision see Before a meeting a volunteer leader has no duty to protect the youth. Besides kids throw snowballs.
Joseph Anaya, Plaintiff-Appellant, v Town Sports International, Inc., et al., Defendants, Sport Rock International, Inc., et al. Defendants-Respondents. Index 101027/03
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2007 NY Slip Op 7875; 44 A.D.3d 485; 843 N.Y.S.2d 599; 2007 N.Y. App. Div. LEXIS 10819
October 18, 2007, Decided
October 18, 2007, Entered
COUNSEL: Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for appellant.
Callan, Koster, Brady & Brennan, LLP, New York (Marc R. Wilner of counsel), for Sport Rock International, Inc., respondent.
Goldberg Segalla LLP, Mineola (Joanna M. Roberto of counsel), for Petzl America, Inc., respondent.
JUDGES: Friedman, J.P., Nardelli, Sweeny, McGuire, Malone, JJ.
OPINION
[**485] [***600] Order, Supreme Court, New York County (Leland DeGrasse, J.), entered January 24, 2006, which, to the extent appealed from as limited by the briefs, granted the separate motions of defendants Sport Rock International (Sport Rock) and Petzl America, Inc. (Petzl) for summary judgment dismissing the complaint as against them, unanimously modified, on the law, the motions denied with respect to plaintiff’s claims based on design defect and [***601] failure to warn, and otherwise affirmed, without costs.
Plaintiff sustained severe personal injuries when he fell from a height of approximately 30 feet while descending a rock climbing wall that was operated by defendant Town Sports International, Inc. of West Nyack (TSI). The accident occurred because an employee of TSI tied the safety line plaintiff was using to a non-weight bearing gear loop on the harness plaintiff was wearing; the line should have been tied to the “anchor point” of the harness. As plaintiff descended the wall the gear loop tore away from the harness, causing plaintiff’s fall. The harness was sold to TSI by Sport Rock and manufactured by Petzl.
Plaintiff asserts causes of action for, among other things, negligence and strict products liability. Plaintiff asserts that Sport Rock and Petzl are liable for his injuries because the safety harness was defectively designed and insufficient warnings were provided regarding where on the harness the safety line was supposed to be tied. Sport Rock moved for summary judgment dismissing the complaint and all other claims as asserted against it, and Petzl moved separately for similar relief. Plaintiff cross-moved for a special trial preference and to dismiss the affirmative defenses of Sport Rock and Petzl premised on [**486] the alleged absence of personal jurisdiction over those defendants. Supreme Court granted the motions of Sport Rock and Petzl, and denied plaintiff’s cross motion. Plaintiff appeals, as limited by his brief, from those portions [*2] of the order that granted the motions of Sport Rock and Petzl. 1
1 Plaintiff settled this action with TSI.
Petzl’s argument that plaintiff failed to oppose its motion before Supreme Court and that plaintiff therefore lacks standing to maintain this appeal is without merit. Plaintiff expressly opposed the motions of Sport Rock and Petzl for the reasons stated by TSI in its opposition to the motions.
[HN1] To establish a prima facie case for strict products liability based on defective design, the plaintiff must show that “the product was not reasonably safe and that the defective design was a substantial factor in causing plaintiff’s injury” (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107, 450 N.E.2d 204, 463 N.Y.S.2d 398 [1983]). With respect to the first element — whether the product was not reasonably safe — the proper inquiry is “whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner” (id. at 108). In balancing the product’s risks against its utility and cost, the following factors must be considered: “(1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product – that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) the ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and (7) the manufacturer’s ability to spread any cost related to improving the safety of the design” (id. at 109).
Since the harness was undoubtably meant to bear the weight of a climber, it was reasonably foreseeable that a climber [***602] might attempt to attach a safety line to various parts thereof and expect those parts to bear his weight. In fact, both these defendants admitted that novice climbers had been known to attach safety lines to gear loops and other parts of the harness. Rather than designing the gear loop to be weight bearing, or omitting it from the design, Petzl decided to make it appear flimsy in the expectation that the user would not attempt to attach a line to it. Whether this decision was reasonable in view [**487] of the questionable utility of a gear loop on a harness used for indoor rock climbing and the serious risk posed is a question for the jury (Voss, 59 NY2d at 108-109; see also Denny v Ford Motor Co., 87 NY2d 248, 662 N.E.2d 730, 639 N.Y.S.2d 250 [1995]).
Triable issues of fact also exist regarding plaintiff’s cause of action for strict products liability based on failure to warn. [HN2] “A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known” (Liriano v Hobart Corp., 92 NY2d 232, 237, 700 N.E.2d 303, 677 N.Y.S.2d 764 [1998]). This rule applies with equal force to distributors and retailers (see Godoy v Abamaster of Miami, 302 AD2d 57, 754 N.Y.S.2d 301 [2003]). Foreseeing the potential that harness users might tie safety lines to gear loops, Petzl warned against such conduct. This warning appeared in the manual accompanying the harness and in a technical notice. A small label on the harness contained a “skull and cross-bones” symbol and directed the user to refer to the manual and technical notice. There is expert evidence, however, that these warnings were inadequate because no warning on the harness itself specifically advised against tying a safety line to the gear loop. Thus, the sufficiency of the warnings must be determined by a jury.
Contrary to the assertions of Sport Rock and Petzl, we cannot determine as a matter of law that the conduct of TSI’s employee was a superseding act.
[HN3] Where the acts of a third person intervene between the defendant’s conduct and [*3] the plaintiff’s injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, 414 N.E.2d 666, 434 N.Y.S.2d 166 [1980]).
Here, TSI’s employee testified that she knew the safety line was not to be tied to the gear loop. However, she did not know what purpose the gear loop served, and accidently tied the safety line to it. While it appears that this employee had minimal training on the proper use of the harness and had not read the manual or technical notice, the record does not permit a finding that the employee’s conduct was unforeseeable as a matter of law. The record is replete with evidence indicating the foreseeability of the risk that novice users of the harness (or for that matter other inexperienced persons such as the employee) might mistakenly tie safety lines to gear loops. Had the harness been [**488] designed without a gear loop or with a weight bearing gear loop, or had clearer warnings been on the harness itself, the accident may have been prevented. Accordingly, triable issues of fact exist regarding whether the alleged defective design [***603] of the harness, the alleged inadequate warnings, or both, was a substantial factor in causing plaintiff’s injuries (see id. [“Because [HN4] questions concerning what is foreseeable and what is normal may be the subject of varying inferences … these issues generally are for the fact finder to resolve”]).
Plaintiff’s remaining contentions are without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 18, 2007
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Stage 7 of USA Pro Challenge Decided: Boulder through Golden to Denver. 3 Bike Epicenters in 1 Day
Posted: December 26, 2013 Filed under: Cycling | Tags: Boulder, Colorado, Denver, Golden, Pro Challenge, USA Pro Challenge Leave a comment
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UIAA Holiday Card
Posted: December 24, 2013 Filed under: Youth Camps, Zip Line | Tags: International Mountaineering and Climbing Federation, UIAA, Union Internationale des Associations d'Alpinisme Leave a comment
Approved Bindings for the alpine ski industry 2013-14 Ski Season
Posted: December 23, 2013 Filed under: Skiing / Snow Boarding | Tags: Approved Binding List, Indemnification, NSSRA, Ski Bindings Leave a commentWhat? Yes, if the binding is not on the list, you cannot work on it.
If you work in a ski shop or on a slope, you need to understand the term “approved binding.” This means the binding is still up to date, and the binding manufacturer still wants the binding supported.
It might be better to understand what a non-approved binding is. If the binding is not on the list, it is a binding you as a ski shop cannot touch. There is not indemnification from the binding manufacturer if there is a problem with the binding.
Each ski season you should contact the manufacturers of the bindings you work with to get their approved binding list. You should also double check and have available for your employees the approved binding list. Any binding that you are not familiar with that comes in your shop; you should check to see if is still on the approved list.
If the binding is not on the list, you should follow your shop policies on how to deal with the binding. That, simply put, should inform the owner of the binding that you cannot touch the binding. You cannot perform any work on the binding; you cannot touch the binding.
There are two good locations to find this list:
Play it Again Sports has a list: http://rec-law.us/181AU5c
Gondyline.com http://rec-law.us/16U8zxE
The National Ski & Snowboard Retailers Association (NSSRA) also has a list. However, it is only available to members.
Do Something
Go get the list, download it and make sure your employees know where to find it.
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Colorado Ski Country USA brings back the 5th Grade Beginner Ski & Snowboard Lesson
Posted: December 19, 2013 Filed under: Colorado, Ski Area | Tags: skiing, snowboarding Leave a commentColorado Ski Country USA’s First Class Program Kicks off in January
Complimentary Beginner Ski or Snowboard Lesson for Never-ever 5th Graders Returns
Colorado Ski Country USA (CSCUSA) announced the return of the complimentary lesson component to its popular 5th Grade Passport program: First Class. Launched in 2010, First Class provides one free beginner ski or snowboard lesson, including rental equipment, for 5th Grade Passport holders who are new to both the sports of skiing and snowboarding. These lessons, in coordination with Learn to Ski and Snowboard Month, are provided at CSCUSA resorts during the month of January.
Detailed program information about First Class has been provided to parents of 5th graders who are currently signed up for the Colorado Ski Country 5th Grade Passport, including which of the 17 participating Colorado Ski Country USA member resorts parents can choose from for their child to have their introductory experience on snow.
“Skiing and snowboarding are Colorado’s signature sports, and we want to ensure that every child in Colorado has the opportunity to participate in our great winter pastime,” explained Melanie Mills, CSCUSA’s president and CEO. “The First Class program is so valuable for kids and parents alike because it makes that first ever day on the mountain a safe and fun experience. Proper equipment and professional instruction are paramount for a kid’s first day on the slopes, and First Class assures parents that their “never-evers” are introduced into the sport in a structured, enjoyable environment.”
The Colorado Ski Country USA 5th Grade Passport program provides three free lift tickets at each participating CSCUSA member resort to the state’s 5th graders. The 6th Grade Passport program provides four lift tickets at the same resorts for $99 to the state’s 6th graders.
More information on 2013-14 5th and 6th Grade Passports and First Class is available at http://www.coloradoski.com/passport or by calling 303-866-9707.
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Grand Canyon Private Boaters Association: If you are not a member you should be!
Posted: December 17, 2013 Filed under: Paddlesports | Tags: Boating, Private Boater, Rafting Leave a comment
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Lift tickets are not contracts and rarely work as a release in most states
Posted: December 16, 2013 Filed under: Contract, Ski Area, Skiing / Snow Boarding | Tags: Contract, Lift Ticket, Release, ski area, skiing, snowboarding 2 CommentsNor can they be used to prove assumption of the risk. At best, a lift ticket is another sign informing someone of the risk. If you are relying upon a lift ticket to stop lawsuits, get a release.
In most states where a statute requires language on the back of a lift ticket that warns of the risk, the language is simply that, warning language.
Two decisions have held that a lift ticket is valid to stop a claim at a ski area: Oregon and North Carolina.
These decisions have upheld the use of a lift ticket to bar a claim.
Oregon: Silva v. Mt. Bachelor, Inc., 2008 U.S. Dist. LEXIS 55942
North Carolina: Strawbridge v. Sugar Mountain Resort, 320 F. Supp. 2d 425; 2004 U.S. Dist. LEXIS 14, Strawbridge, v. Sugar Mountain Resort, Incorporated, 152 Fed. Appx. 286; 2005 U.S. App. LEXIS 23459
In most states, the lift ticket is just a warning. To create a contract, a release, the lift ticket would have been a meeting of the minds. The purchaser of the lift ticket would have to understand they are entering a contract and agree to the terms of the contract.
That means the skier or boarder would have to read the back of the lift ticket and say, yes, I agree to the terms of the contract (or “sure.”).
You can’t rely on a lift ticket or any ticket to stop a lawsuit in most states and even in those four states that have held that in these cases, I would not rely on them until additional decisions support the claims.
What do you think? Leave a comment.
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Strawbridge, Jr., v. Sugar Mountain Resort, Inc., 328 F. Supp. 2d 610; 2004 U.S. Dist. LEXIS 18644
Posted: December 16, 2013 Filed under: Legal Case, North Carolina, Ski Area, Skiing / Snow Boarding | Tags: Lift Ticket, Release, skiing, snowboarding Leave a commentStrawbridge, Jr., v. Sugar Mountain Resort, Inc., 328 F. Supp. 2d 610; 2004 U.S. Dist. LEXIS 18644
Vincent F. Strawbridge, Jr., and Rebecca S. Strawbridge, Plaintiffs, vs. Sugar Mountain Resort, Inc.; B. Dale Stancil, Individually; The Sugar Mountain Irrevocable Trust; and The B. Dale Stancil Irrevocable Trust, Defendants.
CIVIL NO. 1:02CV92
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA, ASHEVILLE DIVISION
328 F. Supp. 2d 610; 2004 U.S. Dist. LEXIS 18644
May 28, 2004, Decided
June 28, 2004, Filed
PRIOR HISTORY: Strawbridge v. Sugar Mt. Resort, Inc., 320 F. Supp. 2d 425, 2004 U.S. Dist. LEXIS 14561 (W.D.N.C., 2004)
COUNSEL: For VINCENT F. STRAWBRIDGE, JR., REBECCA S. STRAWBRIDGE, plaintiffs: R. Hayes Hofler, Daniel B. Hill, Hayes, Hofler & Associates, P.A., Durham, NC.
For SUGAR MOUNTAIN RESORT, INC., defendant: Wyatt S. Stevens, Roberts & Stevens, P.A., Robert E. Riddle, Asheville, NC USA.
For B. DALE STANCIL, THE SUGAR MOUNTAIN IRREVOCABLE TRUST, THE B. DALE STANCIL IRREVOCABLE TRUST, defendants: James R. Fox, Jennifer I. Oakes, Bell, Davis & Pitt, P.A., Winston-Salem, NC USA.
JUDGES: LACY H. THORNBURG, UNITED STATES DISTRICT COURT JUDGE.
OPINION BY: LACY H. THORNBURG
OPINION
[*611] ORDER
THIS MATTER is before the Court on motions of Defendant Sugar Mountain, Inc. (“Sugar Mountain”), and Defendants B. Dale Stancil, individually, the Sugar Mountain Irrevocable Trust, and the B. Dale Stancil Irrevocable Trust (“non-resort Defendants”) for reconsideration, the non-resort Defendants’ [**2] request for oral argument, and Plaintiff’s response to these motions.
A. Sugar Mountain’s motion.
Sugar Mountain argues that “there is a difference between contracting against liability for negligence and agreeing to assume certain inherent risks of a particular activity.” Defendant Sugar Mountain Resort, Inc.’s Motion for Reconsideration [Sugar Mountain’s Motion], filed June 9, 2004, at 2. Sugar Mountain further argues that, even if the exculpatory clause Plaintiff signed to rent his ski equipment is unenforceable, he still assumed the risk of suffering an injury caused by a bare spot on the slope. See id., at 4. To support its claim that Plaintiff assumed the risk of falling on a bare spot, Sugar Mountain relies primarily on the statement printed on the back of Plaintiff’s lift ticket warning him of bare spots and other dangers. Sugar Mountain also points to Plaintiff’s extensive skiing experience in support of its claim that he assumed the risk of the injury that he ultimately suffered. See id., at 7.
Sugar Mountain cites some persuasive and some binding authority that appears to support the distinction between agreements to assume inherent [**3] risks and contracts against liability for negligence. Cf., Alston v. Monk, 92 N.C. App 59, 373 S.E.2d 463 (1988) (analyzing the defendants’ assumption of risk claims separately from their waiver claims); Poston v. Skewes, 49 Fed.Appx. 404 (4th Cir. 2002) (explaining that the trial court had properly interpreted Virginia law when it allowed into evidence an “assumption of risk” statement that the plaintiff had signed but redacted language that purported to “release” [*612] the defendants from liability for negligence). The Court will, therefore, assume without deciding that Sugar Mountain’s assumption of risk defense is distinct from the “release” defense the Court has already considered and rejected.
Sugar Mountain concedes that [HN1] the assumption of risk defense “extends only to those risks which are normally incident to the [activity] in which the plaintiff engages.” Sugar Mountain’s Motion, at 5 (citing McWilliams v. Parham, 269 N.C. 162, 166, 152 S.E.2d 117,120 (1967)) (alteration added). Sugar Mountain further concedes that [HN2] “‘extraordinary risks, including additional hazards caused by the negligence of the [contracting [**4] party], or others on the [contracting party’s] premises,’ are not considered assumed risks.” Sugar Mountain’s Motion, at 5 (citing McWilliams, supra, at 166-67, 152 S.E.2d at 120) (alterations in original). [HN3] “Knowledge is the watchword of the defense of assumption of risk; knowledge of the dangers and hazards to be encountered.” Cobia v. Atlantic C.L.R. Co., 188 N.C. 487, 128 S.E. 18, 20 (1924). [HN4] “This doctrine of assumption of risk is based upon knowledge or a fair and reasonable opportunity to know, and usually this knowledge and opportunity must come in time to be of use. Id. (quotations and citations omitted).
Plaintiffs allege that negligence on the part of Sugar Mountain caused their injuries. This Court has held that [HN5] a jury may find negligence from “evidence of a bare spot on a slope, evidence that defendants knew of conditions that may cause bare spots, and evidence that the bare spot was in some way concealed.” Memorandum and Order, filed May 10,2004, at 14. A corollary of that holding is that a jury may find that a concealed bare spot on a ski slope is not a risk that is normally incident to the activity [**5] of skiing when the ski slope operator knows or should have known of the offending spot and is aware of weather conditions that may cause unusual bare spots. Since this Court held that Plaintiffs have forcast evidence of each element listed above, the Court cannot decide, as a matter of law, that the assumption of risk doctrine defeats Plaintiffs’ claims. 1 Quite to the contrary, since Plaintiffs can only prevail if they prove negligence on the part of Sugar Mountain, and since a finding of negligence would mean that Plaintiffs were injured by “additional hazards caused by the negligence of [Sugar Mountain],” the assumption of risk defense cannot aid the Defendants. McWilliams, at 166-67, 152 S.E.2d at 120.
1 The Poston case illustrates this point. There, the Fourth Circuit, in finding that the plaintiff had assumed the risk of an accident, pointed out that the district court found no negligence on the part of the defendants. Poston, supra.
B. The non-resort [**6] Defendants’ motion.
1. B. Dale Stancil.
The non-resort Defendants’ memorandum advances no novel argument for summary judgment as to Stancil. Therefore, for the reasons set forth in the Court’s Memorandum and Order, the Court declines to dismiss Defendant Stancil.
2. The trust entities.
In its Memorandum and Order, the Court found that the evidence would support a finding of derivative liability, but the Court did not specifically examine whether that potential liability extended to the two irrevocable trusts. Now, the Court finds it does not.
As explained in the Memorandum and Order, Stancil and his business partner created the Sugar Mountain Irrevocable Trust in 1979 when they conveyed the land on which the ski resort sits into the trust [*613] for estate planning purposes. The Sugar Mountain Irrevocable Trust has continued to lease the land to Sugar Mountain, Inc., since 1979. The beneficiaries of the Sugar Mountain Irrevocable Trust are the Defendant B. Dale Stancil Irrevocable Trust (“Stancil Trust”), which was established for Stancil’s children, and an irrevocable trust for the children of Stancil’s business partner. Both Defendant trusts are managed by independent trustees. [**7] Memorandum and Order, at 17-18.
Although neither trustee is obligated to give Stancil access to the corpus of the trusts, the Stancil Trust does provide that the Trustee may loan funds to “the Grantor, the Grantor’s affiliated corporations or partnerships, other trusts created by the Grantor, trusts of which this trust is a beneficiary, beneficiaries of this trust or their affiliated corporations or partnerships.” Exhibit 8, B. Dale Stancil Irrevocable Trust (“Stancil Trust”), attached to Brief Opposing Summary Judgment as to Certain Defendants, at 2. The trust further provides that any such loan must be “on an arm’s length basis with good and adequate security and a fair interest rate.” Id. The trustee has, in fact, allowed Stancil to borrow money from the Stancil Trust to finance a real estate investment in Virginia and possibly to invest money in Sugar Mountain, Inc. Stancil makes interest payments to the trust in the sum of roughly $ 100,000 per year but does not make payments on the principal. Exhibit 17, Deposition of B. Dale Stancil, attached to Plaintiff’s Objections to Memorandum and Recommendation, at 44-45, 93-94, 103-04.
Plaintiffs [**8] give two theories on why liability should extend to the trust entities. The first is that, at least with respect to the Sugar Mountain Irrevocable Trust, liability is proper because the trust actually owns the premises on which Plaintiff was injured. However, it is well settled [HN6] in North Carolina that “a landlord who has neither possession nor control of the leased premises is not liable for injuries to third persons.” Vera v. Five Crow Promotions, Inc., 130 N.C. App. 645, 650, 503 S.E.2d 692, 697 (1998) (internal quotations omitted). Plaintiffs state in their objections to the Memorandum and Recommendation that the Sugar Mountain Irrevocable Trust “operated the resort,” but there is no forecast of evidence to support that statement. The original lease, however, states that Sugar Mountain Resort, Inc., agrees “to operate” the resort. Lease Agreement, contained in Appendix to Moving Defendants’ Memorandum in Support of Motion for Summary Judgment, at 4. For that reason, the fact that Sugar Mountain Irrevocable Trust was a landlord to Sugar Mountain, Inc., does not extend the liability of Sugar Mountain, Inc., to either trust entity.
Plaintiffs’ second [**9] argument for holding the trusts liable is that Stancil and the trusts are in an agency relationship. At times, Plaintiffs assert that “Stancil is the agent or servant of the trusts,” and, at other times, Plaintiffs assert that the trusts and the trustees are paid servants of Stancil. Plaintiffs’ Brief Opposing Summary Judgment as to Certain Defendants, at 20-21; Plaintiffs’ Objections to Memorandum and Recommendation, at 57-59. However, neither trust instrument mandates any ongoing obligations between Stancil and the trusts or the trustees. Exhibit 7, Sugar Mountain Irrevocable Trust, attached to Plaintiffs’ Brief Opposing Summary Judgment as to Certain Defendants; Exhibit 8, B. Dale Stancil Irrevocable Trust, supra. Although there is evidence of at least one loan from the Stancil Trust to Stancil, there is no evidence or legal authority to support the finding of an agency relationship, and there is no evidence to support a [*614] finding that the transaction was not performed at arm’s length.
For the reasons discussed above, the Court sees no basis for extending liability to irrevocable trust entities Stancil created over 20 years ago. As such, the two trust Defendants [**10] will be dismissed from this action.
3. Request for oral argument
Because of the extensive briefs filed by the parties, the Court determines there is no need for oral argument.
ORDER
IT IS, THEREFORE, ORDERED that Defendant Sugar Mountain Inc.’s, motion to reconsider is hereby DENIED.
IT IS FURTHER ORDERED that there will be no jury determination of whether Plaintiff Vincent Strawbridge assumed the risk of injury.
IT IS FURTHER ORDERED that the non-resort Defendants’ motion to reconsider is hereby GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that the Plaintiffs’ claims against the B. Dale Stancil Irrevocable Trust and the Sugar Mountain Irrevocable Trust are hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the non-resort Defendants’ request for oral argument is hereby DENIED.
THIS the 28th day of May, 2004.
LACY H. THORNBURG
UNITED STATES DISTRICT COURT JUDGE
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Silva v. Mt. Bachelor, Inc., 2008 U.S. Dist. LEXIS 55942
Posted: December 16, 2013 Filed under: Oregon, Ski Area | Tags: Lift Ticket, ski area, skiing, snowboarding Leave a commentSilva v. Mt. Bachelor, Inc., 2008 U.S. Dist. LEXIS 55942
David J. Silva, Plaintiff, v. Mt. Bachelor, Inc., an Oregon corporation, Defendant.
Civ No. 06-6330-AA
United States District Court for the District of Oregon
2008 U.S. Dist. LEXIS 55942
July 21, 2008, Decided
COUNSEL: [*1] For Plaintiffs: David Jensen, Jensen, Elmore & Stupasky, Eugene, OR.
For Defendant: Andrew C. Balyeat, Jeffrey T. Eager, Balyeat & Eager, Bend, OR.
JUDGES: Ann Aiken, United States District Judge.
OPINION BY: Ann Aiken
OPINION
OPINION AND ORDER
AIKEN, Judge:
Plaintiff filed suit alleging premises liability and negligence arising from a skiing accident. Defendant moves for summary judgment on plaintiff’s claims, arguing that they are barred by a valid release from liability agreed to by plaintiff.
FACTS
Plaintiff is a resident of Idaho and an avid skier who has skied at numerous ski resorts throughout the United States. Plaintiff received vouchers for two days of skiing at Mt. Bachelor and two nights at the Inn of the Seventh Mountain.
On April 16, 2005, plaintiff traded his voucher for an all-day ski pass at Mt. Bachelor. At the ticket windows, Mt. Bachelor posts signs stating “YOUR TICKET IS A RELEASE” and advising skiers that their ski pass contains a release of all claims against Mt. Bachelor. The signs read:
The back of your ticket contains a release of all claims against Mt. Bachelor and its employees or agents. Read the back of your ticket before you ski or ride the lift or use any of the facilities of the area. [*2] If you purchase a ticket for someone else, you must provide this ticket release information to that person or person.
Skiers 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.
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.
Affidavit of Tom Lomax, Ex. 1.
Additionally, the back of plaintiff’s ski pass stated “READ THIS RELEASE AGREEMENT” and contained the following language:
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 [*3] property damages, 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.
Affidavit of Andrew C. Balyeat, Ex. 2, p. 2.
As plaintiff skied in an ungroomed area, he fell and injured his knee.
On December 27, 2006, plaintiff filed this lawsuit. Plaintiff alleges that defendant failed to make the ski area reasonably safe and that defendant’s negligence in failing to do so caused his injuries.
STANDARD
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The materiality of a fact is determined by the substantive law on the issue. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n., 809 F.2d 626, 630 (9th Cir. 1987). The authenticity of a dispute is determined by whether the evidence is such that a reasonable jury could return a verdict for the nonmoving [*4] party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply to evaluating summary judgment motions: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
DISCUSSION
Defendant moves for summary judgment on grounds that plaintiff agreed to release defendant from all liability for damages arising from the use of its facilities. Defendant maintains that the release agreement is valid and enforceable and bars plaintiff’s claims. See Harmon v. Mt. Hood Meadows, Ltd., 146 Ore. App. 215, 932 P.2d 92 (1997); Mann v. Wetter, 100 Ore. App. 184, 785 P.2d 1064 (1990) .
Plaintiff concedes that one party [*5] may contract to limit another party’s liability for negligence. However, plaintiff disagrees that the release on the Mt. Bachelor ski pass is a valid release of liability. Plaintiff maintains that the release is not enforceable, because the parties were not negotiating at arms length in a commercial setting, the release was not make known to or signed by plaintiff, and the terms of the release are equivocal because it purports to cover all claims under any theory of recovery except intentional misconduct.
Plaintiff’s arguments are unavailing. First, no Oregon court has held that a release from liability in a recreational, as opposed to commercial, context offends public policy and is unenforceable. Harmon, 146 Ore. App. at 219 n. 3, 932 P. 2d 92 (“[W]e assume, without deciding, that a release relieving a ski resort solely from the consequences of its own negligence does not offend Oregon public policy.”). Further, the release from liability is not invalid as a contract of adhesion, because plaintiff voluntarily chose to ski at Mt. Bachelor and the ski resort does not provide essential public services. Mann, 100 Ore. App. at 187-88, 785 P.2d 1064.
Second, although plaintiff testified at [*6] his deposition that he did not read the release on the back of his ski pass or the signs at the ticket window, the pass and signs clearly advise skiers of the significance of the release agreement. Further, plaintiff testified that he knew and expected that his lift ticket would contain a release, based on his extensive skiing experience. Balyeat Aff., Ex. 1, pp. 14-15. Plaintiff also admitted that he understood the terms of the release, and plaintiff cites no case that requires a recreational release agreement to be signed. Id. Ex. 1, p. 15. Therefore, I find no genuine issue of fact exists as to whether the release and its terms were made known plaintiff.
Finally, the Oregon Court of Appeals has specifically held that a plaintiff must establish overbreadth of a release agreement as applied to the specific claim alleged:
Most simply, the party must show that, as applied, the contractual term is unenforceable on grounds of public policy. Here, plaintiff does not contend that Oregon public policy precludes a ski resort from limiting its liability for negligence; thus, regardless of whether defendants’ release might be unenforceable as to other plaintiffs asserting other claims, it is [*7] not unenforceable as applied to plaintiff.
Harmon, 146 Ore. App. at 221-22 (emphasis in original).
Here, plaintiff asserts negligence claims against defendant and concedes that a defendant may limit its liability for negligence. Therefore, the fact that the release agreement purports to cover other theories of liability does not preclude enforcement of the release in this case. As such, plaintiff’s claims are barred.
CONCLUSION
Defendant’s motion for summary judgment (doc. 13) is GRANTED. This case is DISMISSED.
IT IS SO ORDERED.
Dated this 21 day of July, 2008.
/s/ Ann Aiken
Ann Aiken
United States District Judge
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People for Bikes is Growing and Making Cycling Better
Posted: December 10, 2013 Filed under: Cycling | Tags: bicycle, Cycling, People for Bikes Leave a comment
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Recreation Law 