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The safety precautions undertaken by the defendant in this mountain bike race were sufficient to defeat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality.

Tour of the Canyonlands was an 18-mile mountain bike race near Moab, Utah. Six miles of the course were on roads. The course was an open course meaning, there might be automobile traffic on the roads; the roads would not be closed to traffic.
Two plaintiffs’ struck a truck on the road, killing one of the mountain bikers.

Milne v. USA Cycling Inc., et. al., 575 F.3d 1120; 2009 U.S. App. LEXIS 17822

State: Utah, United States Court of Appeals for the Tenth Circuit

Plaintiff: Robert J. Milne, an individual; Timothy K. Sorrow, individually and as personal representative on behalf of his deceased son, Samuel B. Hall,

Defendant: USA Cycling Inc., a Colorado corporation, d/b/a National Off-road Bicycle Association; Cycle Cyndicate Inc.,

Plaintiff Claims: negligence, gross negligence, and wrongful death

Defendant Defenses: release, failure to state a claim to prove gross negligence

Holding: For the Defendant

Year: 2009

This is an attempt to recover damages by parents for the injuries they suffer when a son is hurt or dies. It probably involves as many emotional issues as it does legal ones such as how and why did my son die, why didn’t they do more to keep my son alive and possibly even some desire to protect others from the same
fate.

Two mountain bikers entered the Tour of the Canyonlands mountain bike race. Both had entered the race before and were classified as expert racers. They both signed a release prior to the race and had been told the first six miles of the course would be an open course.

An “open course” is one that is not closed to automobile traffic. Cycling on an “open course,” whether on a mountain bike or road bike, you will be encountering cars and be passed by cars. Approximately 25% of all mountain bike races are open course and a majority of road bike races in the US.

The race organizers had put up signs before the racing telling motorists that there was going to be a race. The organizers had volunteers along the route and first aid people to assist riders. They had made the effort to notify all campers on the race route about the race. The defendant driving the truck involved in the collision stated he was not notified about the race, but other people camping with him stated they had been notified.

The accident occurred when one racer attempted to pass another racer on the open part of the course while passing the automobile coming from the opposite direction. The automobile was a Ford Excursion pulling a 30’ trailer. The mountain bikers tangled, and one of the plaintiffs’s crashed into the truck.

Mr. Konitshek testified that, when he saw the oncoming bikers, he veered as far right in his lane of travel as possible, and remained on the right side of the road the entire time. He was going about 5 miles per hour when one of the bikers hit his left sideview mirror, causing it to bang into his window and shatter.

Mr. Hall had attempted to pass both himself and Mr. Milne. Mr. Byrd was immediately behind Mr. Milne, so Mr. Hall passed him first. Mr. Byrd testified that Mr. Hall passed very closely and, because of his proximity and his speed–Mr. Hall was riding about 25 miles per hour at that time–Mr. Casey could feel the wind coming off him as he passed. Then, as Mr. Hall began to pass Mr. Milne, their handlebars locked together, causing them to veer left and strike Mr. Konitshek’s camper. It is not entirely clear what happened next, but at least one racer testified that he saw the trailer run over Mr. Hall.

The release stopped the claims based on simple negligence and wrongful death of the plaintiffs. That left the claims for gross negligence. The Federal District Court (trial court) dismissed the plaintiff’s claims because the plaintiff had not pled any facts to prove their claim of gross negligence.

On the plaintiff’s gross negligence claims, the court determined that the undisputed facts showed that defendants had taken a number of steps to protect the racers’ safety, and even if those steps were taken negligently, they were not grossly negligent.

There was also an issue of the plaintiff’s expert witness whom the trial court had prevented from testifying because the trial court found him to not have any experience as a mountain bike race expert.

The plaintiff’s appealed the trial court’s decision.

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

The appellate court had a long discussion on the courts process to dismiss cases based on motions for summary judgment. The court then started into the analysis of the facts in this case and how they applied to the law.

Gross negligence in Utah is a failure on the part of the defendant to observe even slight care. “Under Utah law, “[g]ross negligence is the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.” The plaintiff to prove the defendant was grossly negligent must proof “conduct substantially more distant from the appropriate standard of care than does ordinary negligence.”

The facts argued by the plaintiff can then only be interpreted in one way for a court to determine gross negligence cannot be proved. However, even if there are different ways of viewing the facts, gross negligence claims can be beat if there is evidence the defendant did show care or was not lacking care.

However, appeals courts have affirmed grants of summary judgment on gross negligence claims where the undisputed evidence showed that the defendants took precautionary measures and did not ignore known and obvious risks.

In this case, the court could point out numerous instances where the defendant was not careless. “… the plaintiffs have fallen short of producing evidence upon which a jury could conclude that the defendants failed to exercise “even slight care” in organizing and administering this race.

The court also looked at the knowledge of the racers and the fact they assumed the risk of the sport and injuries they encountered.

Mountain bike racing is an inherently dangerous sport, so the defendants cannot be considered grossly negligent merely because they organized a race that placed the racers at risk of injury and even death. Rather, the court must look at the specific steps the defendants took to ensure the racers’ safety in order to determine whether a jury could decide that they
were grossly negligent.

Although the issue of assumption of the risk was reviewed by the court and it obviously factored into the court’s analysis, it was not stated by the court as a reason for its decision.

The plaintiff argued the driver’s statements showed the defendant not done anything. However, the court seemed to discount the driver’s statements and found everyone else did know about the race. A defendant in the case looking not to lose a lawsuit would be more inclined to state he had not been notified.

Mr. Konitshek claimed that the organizers’ efforts to warn people in the area of the upcoming race were ineffective, because he did not know about the race until moments before the accident. Mr. Konitshek’s complaints about the sufficiency of the race organizers’ warnings do not rise to the level of creating a material issue of fact with regard to gross
negligence for two reasons. First, even if the race organizers’ warnings were imperfect, that does not negate the fact that they made rather substantial efforts to warn people, and their failure to reach every person in the area is insufficient to show gross negligence. Second, although Mr. Konitshek testified that he would have changed his plans if he had known about the race in advance, the plaintiffs presented no reason for this court to think that most drivers would change their plans to avoid a bicycle race on a 6-mile stretch of open road.

Utah requires a high disregard of safety issues to constitute gross negligence. Since automobile accidents were rare in mountain bike racing, this being the only one in the ten years of running this event, automobile accidents were not considered a serious threat to the participants. The issues were brought up by the plaintiff’s expert witness whom the court dismissed in one paragraph.

Thus, the organizers’ failure to shut down the road, mark and enforce a center line on the road, more closely monitor vehicular traffic, or more thoroughly warn other area drivers of the upcoming race cannot, as a matter of law, amount to gross negligence in light of the other safety steps taken by the organizers of this race.

Nor is gross negligence proved by 20/20 hindsight.

An examination of cases in other jurisdictions shows that courts have been reluctant to find that race organizers have been grossly negligent for failing to take every precaution that 20/20 hind-sight might counsel.

The court found the plaintiff’s had not presented evidence that could prove to a jury that the race organizers were grossly negligent and the actions of the race organizers in attending to the safety issues discounted or eliminated the plaintiff’s gross negligence claim.

We therefore agree with the district court’s determination that the plaintiffs in this case have failed to provide evidence upon which a reasonable jury could conclude that the race organizers were grossly negligent.

The court then went on to support the trial courts exclusion of the plaintiff’s expert witness because the expert witness did not have sufficient experience in mountain bike racing. 

There was a concurring opinion in this case. A concurring opinion is one where a justice sitting on the appeal agrees with the outcome of the decision but for a different reason than the majority of the justices. In this case, the concurring judge felt the plaintiff’s expert witness statements were enough to beat the gross negligence claim.

In this case, he would have excluded the plaintiff’s expert witness testimony, but would have used his testimony where he stated the defendants exercised some degree of care for the participants as a reason to dismiss the gross negligence claim.

The dismissal of the claims of the plaintiff by the trial court was upheld.

So Now What?

I am seeing case after case where gross negligence claims are made to defeat a release. Twenty years ago, few cases pleaded a claim for gross negligence, and now every case does. As such part of your preparation for any activity, trip or program is to make sure you do not do anything that could support a gross negligence claim.

Gross negligence claims rarely proved at trial, extremely rare. As such their main reason they are pled is to get passed the motion for summary judgment, which increases the cost of continuing the case substantially. Therefore, any settlement offer will be increased significantly. A gross negligence claim hanging over the head of a defendant is also a real threat as some insurance companies will not pay to defend such a claim judgment based on gross negligence are not dischargeable in Bankruptcy.

Planning what safety precautions you should undertake should first start with understanding what your industry does. Know how other races are put on and what precaution to take is the first step. Then looking at your course, your participants or your ability to respond, you should modify the safety program to meet those differences. 

Finally, have a release and fully inform every one of the risks. Most importantly inform them of all risks, maybe even repeatedly, that are different from everyone else or that substantially increase the risk. Assumption of the Risk is the second most-used defense to negligence claims in recreation cases after a release. Always use both.

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

What do you think? Leave a comment.

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Milne v. USA Cycling Inc., et. al., 575 F.3d 1120; 2009 U.S. App. LEXIS 17822

Milne v. USA Cycling Inc., et. al., 575 F.3d 1120; 2009 U.S. App. LEXIS 17822

Robert J. Milne, an individual; Timothy K. Sorrow, individually and as personal representative on behalf of his deceased son, Samuel B. Hall, Plaintiffs-Appellants, v. USA Cycling Inc., a Colorado corporation, d/b/a National Off-road Bicycle Association; Cycle Cyndicate Inc., a Colorado Corporation; Eric Jean, an individual, Defendants-Appellees.

No. 07-4247

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

575 F.3d 1120; 2009 U.S. App. LEXIS 17822

August 10, 2009, Filed

PRIOR HISTORY: [**1]

Appeal from the United States District Court for the District of Utah. (D.C. No. 2:05-CV-00675-TS).

Milne v. USA Cycling, Inc., 489 F. Supp. 2d 1283, 2007 U.S. Dist. LEXIS 42579 (D. Utah, 2007)

COUNSEL: Steve Russell (Jordan Kendall with him on the briefs) of Eisenberg & Gilchrist, Salt Lake City, Utah, for Plaintiffs-Appellants.

Allan L. Larson (Richard A. Vazquez with him on the briefs) of Snow, Christensen, & Martineau, Salt Lake City, Utah, for Defendants-Appellees.

JUDGES: Before McCONNELL, EBEL, and GORSUCH, Circuit Judges. GORSUCH, Circuit Judge, concurring in part and concurring in the judgment.

OPINION BY: EBEL

OPINION

[*1122] EBEL, Circuit Judge.

This diversity jurisdiction case involves Utah state law claims of negligence, gross negligence, and wrongful death based on a tragic accident that occurred during a bicycle race called the “Tour of Canyonlands” near Moab, Utah. During the race, one or more of the racers collided with an SUV and trailer driving in the opposite direction. One racer was killed, and another was badly injured. The injured rider and the decedent’s mother–in her own capacity and on behalf of her son’s estate–filed suit against the race’s organizers and the entities responsible for promoting and overseeing the race.

The district court granted defendants’ motion to strike plaintiffs’ expert’s second [**2] affidavit, and granted summary judgment for the defendants on all claims. On appeal, the plaintiffs only challenge the district court’s decision to exclude their expert’s opinion and to grant summary judgment for the defendants on the plaintiffs’ claims of gross negligence.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

I. BACKGROUND 1

1 Because this case comes to us on defendants’ motion for summary judgment, we construe all facts in plaintiffs’ favor. See Beardsley v. Farmland Co-Op, Inc., 530 F.3d 1309, 1313 (10th Cir. 2008) ( [HN1] “This court reviews the district court’s summary judgment decision de novo, viewing the evidence in the light most favorable to the non-moving party . . . .” (quoting Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 679-80 (10th Cir. 2007)) (ellipses in original).

The “Tour of the Canyonlands” (“TOC”) is a cross-country mountain bike race [*1123] through the canyons outside Moab, Utah. The race begins on six miles of an “open course” dirt road, where racers share the road with automobile traffic, and continues for another nineteen miles on rugged off-road paths. On April 25, 2005, two racers–Samuel B. Hall and Robert J. Milne–were racing the TOC when they [**3] struck a Ford Excursion SUV, and the trailer it was pulling, on the six-mile open course portion of the race. Mr. Hall died at the scene from severe head trauma. Mr. Milne was seriously injured, but survived the accident.

Following the accident, Plaintiff-Appellant Timothy Sorrow brought negligence, gross negligence, and wrongful deaths claims personally and on behalf of the estate of her deceased son, Mr. Hall, against the people and entities responsible for organizing the race. Plaintiff-Appellant Robert J. Milne brought claims of negligence and gross negligence on his own behalf against the same defendants.

The three Defendants-Appellees were responsible for organizing, promoting, and overseeing the TOC race on April 25, 2005. U.S.A. Cycling Inc., d/b/a the National Off-Road Bicycle Association (“NORBA”), oversaw the race and drafted the rules governing the race, Cycle Cyndicate organized and promoted the race, and Eric Jean–the president and CEO of Cycle Cyndicate–played a large role in administering and supervising the race.

A. Open Course Mountain Bike Racing

Although a portion of this race took place on an open road, the race was governed exclusively by the mountain bike racing [**4] rules developed by NORBA. These rules differ significantly from road racing rules. For example, road racers must obey a “center-line rule,” and may be disqualified if they cross over the line painted in the middle of the road. Mountain bike racers, on the other hand, will not be disqualified for crossing the center-line. This distinction is based at least in part on the fact that, unlike the roads used for road racing, open-course mountain bike races often take place on dirt roads that do not have a clearly marked center line. Thus, a center-line rule would be difficult, if not impossible, to enforce.

Despite the fact that a mountain bike racer may not be disqualified for crossing the center line, there was evidence that the race organizers told the racers to obey a center-line rule. Even where no center-line rule is in effect, however, racers are expected to be aware of their surroundings, and to veer right if they see oncoming traffic.

Open-course bicycle races are apparently not uncommon in the mountain bike racing world and are especially common in Utah. Mr. Milne testified that about 25% of the mountain bike races he participated in were “open course” races. The TOC itself has taken [**5] place in part on an open course since at least 1998.

Automobile-bicycle accidents are very uncommon at TOC. Mr. Jean stated that throughout the more than ten-year history of the race, with races in many of those years having nearly 500 participants, he is aware of only one accident involving a bicyclist and an automobile–the accident that led to this case. Perhaps because of the low frequency of vehicular accidents, NORBA has no rules dictating that race organizers must regulate traffic on open-course trails to avoid automobile-bicycle [*1124] collisions. There was some evidence that, despite the fact that NORBA has no such requirement, Mr. Jean requested permission to close the road to traffic on the day of the race. Whether or not he made those efforts, it is clear that the permit obtained for the race stated that the race could not stop traffic for more than 15 minutes at a time. 2

2 The race organizers obtained a permit from the Bureau of Land Management (“BLM”) for [**6] the race. However, the record indicates that there was a conflict at the time between the BLM and some of the County governments regarding who had control over the roads in the area. This court expresses no opinion on that conflict.

B. The Racers

Both Mr. Hall and Mr. Milne were classified as “expert” racers, and had extensive mountain bike racing experience. They had raced the TOC before, and were familiar with the course. Before each of these races, they knowingly signed liability release forms, which provided that the parties had waived all claims against the race organizers, including claims premised on the organizers’ negligence. The releases also specifically mentioned that racers were assuming the risk of collision with vehicles. Those warnings, in combination with the race organizers’ pre-race announcements that the first six miles would be on an open course shared with other vehicles, make it clear that Mr. Hall and Mr. Milne knew they could encounter vehicles during their race.

C. Safety Precautions Taken by the Race Organizers

The race organizers took a number of safety precautions both before and during the race. For example, the race organizers posted a sign warning people [**7] in the area of the upcoming race, although that sign had been knocked down at least once during the week the leading up to the race.

On the day of the race, the organizers posted, about a mile and half from the starting line, some attendants whose job it was to warn drivers that a race was taking place, that they might encounter some temporary road closures, and that they would be sharing the road with hundreds of cyclists. Some race organizers also testified that they approached people camped in the area to warn them that a race would be taking place that day. Mr. Konitshek, the driver of the SUV involved in the accident, testified that no one ever came to his campground to warn of the race that morning, despite the fact that his campground was clearly visible from the road. However, the other members of his party testified that the race organizers warned them about the race as they drove away from their campground.

The race organizers also arranged for 25 “course marshals” to help supervise the race. Some of those marshals were posted near intersections or sharp turns in order to mitigate some of the risks associated with the automobile traffic the racers might encounter. However, [**8] no one was assigned to the area right near the accident site, which was relatively straight and wide. Further, even though some course marshals had been assigned to areas between the starting line and the place of the accident, some witnesses testified that they did not notice anyone directing traffic in that area. In addition to the course marshals, Mr. Jean had a few people available to administer first aid to injured riders. Mr. Jean himself also carried a backpack with some medical equipment.

Finally, the race organizers made significant efforts to inform the racers that they might encounter vehicles during the race. In order to ride, race participants had to sign a liability release waiver that specifically mentioned the potential for vehicular [*1125] accidents. Further, before the race began, the race organizers announced that the TOC was an open course race, and that racers might encounter automobile traffic.

D. The Accident

Mr. Konitshek was driving a 2001 Ford Excursion with a 30-foot trailer about five miles from the starting line when he noticed that a group of bikers were approaching his car from the opposite direction. The bikers were spread out too wide for their lane of travel. [**9] That portion of the road was relatively wide, open, and fast. The visibility there was also relatively good. Although the view was partially blocked by some rocks, Mr. Konitshek’s SUV and trailer were visible to racers from at least 150 feet away. Mr. Konitshek testified that, when he saw the oncoming bikers, he veered as far right in his lane of travel as possible, and remained on the right side of the road the entire time. 3 He was going about 5 miles per hour when one of the bikers hit his left sideview mirror, causing it to bang into his window and shatter.

3 There was conflicting evidence on whether Mr. Konitshek or the racers had crossed the center line of the road. Mr. Konitshek was adamant that he had remained on his side. However, one of the riders witnessing the accident testified that the riders remained on their side of the road, although he then recanted his testimony to some extent, stating that it was hard to tell whether the riders and/or the truck had remained on their respective sides of the road. Another rider testified at his deposition that he was certain that Mr. Konitshek’s SUV extended beyond the center line. Still another testified that the SUV certainly remained [**10] on its side of the road the entire time. For purposes of this appeal, we will assume the facts most favorable to Plaintiffs’ argument.

Casey Byrd, a rider who was just behind Mr. Hall and Mr. Milne when the accident occurred, testified that right before the accident, Mr. Hall had attempted to pass both himself and Mr. Milne. Mr. Byrd was immediately behind Mr. Milne, so Mr. Hall passed him first. Mr. Byrd testified that Mr. Hall passed very closely and, because of his proximity and his speed–Mr. Hall was riding about 25 miles per hour at that time–Mr. Casey could feel the wind coming off him as he passed. Then, as Mr. Hall began to pass Mr. Milne, their handlebars locked together, causing them to veer left and strike Mr. Konitshek’s camper. It is not entirely clear what happened next, but at least one racer testified that he saw the trailer run over Mr. Hall.

E. The District Court’s Decision

The district court granted summary judgment for the defendants on all claims. On the plaintiff’s gross negligence claims, the court determined that the undisputed facts showed that defendants had taken a number of steps to protect the racers’ safety, and even if those steps were taken negligently, [**11] they were not grossly negligent. The district court also struck plaintiffs’ expert’s second affidavit, finding that plaintiffs’ witness was not qualified to testify as an expert on mountain bike races. This appeal, challenging the district court’s grant of summary judgment on plaintiffs’ gross negligence claims and the court’s decision to strike plaintiffs’ expert, timely followed.

II. Discussion

A. Federal Law Dictates Summary Judgment Standard

Before turning to the facts of this case, this court must address whether Utah’s summary judgment rules preclude this court from upholding the district court’s grant of summary judgment. [HN2] Under federal law, a defendant may be granted summary judgment whenever plaintiffs fail adequately to “support one of the elements of [*1126] their claim upon which they ha[ve] the burden of proof.” Jensen v. Kimble, 1 F.3d 1073, 1079 (10th Cir. 1993).

[HN3] Utah’s approach to summary judgment is generally parallel to the federal courts’ approach. See, e.g., Burns v. Cannondale Bicycle Co., 876 P.2d 415, 418-20 (Utah Ct. App. 1994) (affirming summary judgment for defendants because plaintiff failed to bring evidence supporting one of the elements regarding which it had the burden [**12] of proof). However, Utah has a special rule for summary judgment in negligence cases that differs significantly from federal law. Under Utah law, “[s]ummary judgment in negligence cases, including gross negligence cases, is inappropriate unless the applicable standard of care is fixed by law.” Pearce v. Utah Athletic Foundation, 2008 UT 13, 179 P.3d 760, 767 (Utah 2008) (emphasis added) (internal quotation omitted). In other words, Utah courts would prevent either party to a negligence dispute from obtaining summary judgment where the standard of care applicable to that dispute has not been “fixed by law.” See Berry v. Greater Park City Co., 2007 UT 87, 171 P.3d 442, 449 (Utah 2007) (explaining that Utah courts will not grant summary judgment in a gross negligence case where the applicable standard of care has not been fixed by law because “[i]dentification of the proper standard of care is a necessary precondition to assessing the degree to which conduct deviates, if at all, from the standard of care–the core test in any claim of gross negligence”); but see RJW Media, Inc. v. CIT Group/Consumer Finance, Inc., 202 P.3d 291, 296, 2008 UT App 476 (Utah Ct. App. 2008) (affirming grant of summary judgment for defendant in a [**13] negligence case where the standard of care had not been “fixed by law” but the defendant had presented uncontested evidence of the appropriate standard of care).

In Pearce, 2008 UT 13, 179 P.3d 760, the most recent Utah Supreme Court case to consider this issue, the plaintiff brought gross negligence claims arising out of injuries that occurred during a bobsled ride. The Utah court reversed the lower court’s grant of summary judgment for the defendants, concluding that summary judgment was inappropriate because the applicable standard of care had not been “fixed by law.” The court held that the generally applicable “reasonably prudent person” standard was insufficiently specific to constitute a standard of care “fixed by law.” Id. at 768 n.2. Rather, for the standard of care in that case to be “fixed by law,” a statute or judicial precedent must articulate “specific standards for designing, constructing, and testing a bobsled run for the public or for operating a public bobsled ride.” Id.; see also Berry, 171 P.3d at 449 (denying motion for summary judgment in negligence case involving a skiercross course because the applicable standard of care was not “fixed by law”); Wycalis v. Guardian Title of Utah, 780 P.2d 821, 825 (Utah. Ct. App. 1989) [**14] (stating that “the applicable standard of care in a given case may be established, as a matter of law, by legislative enactment or prior judicial decision”). Since no statute or precedent provided a standard of care for bobsled rides, the Utah court denied the defendants’ motion for summary judgment. Pearce, 179 P.3d at 768.

Applying Utah law to this case would probably require that we reverse the district court’s grant of summary judgment. It is undisputed that no Utah precedent or legislative enactment specifically establishes the standard of care for running mixed-course bicycle races. Thus, under Utah law, the standard of care in this case is not “fixed by law,” and summary judgment would be inappropriate.

[HN4] Under federal law, on the other hand, a defendant need not establish that the standard of care specific to the factual [*1127] context of the case has been “fixed by law” in order to be granted summary judgment. See Gans v. Mundy, 762 F.2d 338, 342 (3rd Cir. 1985) (holding that defendant moving for summary judgment in a legal malpractice claim need not present expert testimony establishing a standard of care even though a plaintiff in that position would need to do so, because the case [**15] law establishing the plaintiff’s duty to provide expert testimony “cannot fairly be characterized as applying to a defendant’s motion under Rule 56″) (emphasis in original); see also id. at 343 (“[T]he party moving for summary judgment has the ultimate burden of showing the absence of a genuine issue as to any material fact. But once the appellees averred facts and alleged that their conduct was not negligent, a burden of production shifted to the appellant to proffer evidence that would create a genuine issue of material fact as to the standard of care.”) (citations omitted); see generally Young v. United Auto. Workers Labor Employment and Training Corp., 95 F.3d 992, 996 (10th Cir. 1996) (“A party who moves for summary judgment under Rule 56 is not required to provide evidence negating an opponent’s claim. Rather, the burden is on the nonmovant, who must present affirmative evidence in order to defeat a properly supported motion for summary judgment.”) (citations and quotations omitted).

On the contrary, [HN5] federal courts will sometimes grant summary judgment to defendants on negligence claims precisely because of the plaintiff’s failure to present evidence establishing a standard of [**16] care as part of its burden of proof on an element of plaintiff’s case. See, e.g., Briggs v. Washington Metro. Area Transit Auth., 481 F.3d 839, 841, 375 U.S. App. D.C. 343 (D.C. Cir. 2007) (affirming grant of summary judgment for defendants on a negligence claim where plaintiff, who under state law had the burden to provide expert testimony on the standard of care, failed to “offer creditable evidence sufficient to establish a controlling standard of care”); Keller v. Albright, 1 F. Supp. 2d 1279, 1281-82 (D. Utah 1997) (granting defendant’s motion for summary judgment on plaintiff’s legal malpractice claim asserted under Utah law because the plaintiff failed to provide expert testimony regarding the standard of care, and the case did not involve circumstances “within the common knowledge and experience of lay jurors”) (citation and quotation omitted), aff’d, No. 97-4205, 1998 U.S. App. LEXIS 7134, 1998 WL 163363 (10th Cir. Apr. 8, 1998) (unpublished) (affirming “for substantially those reasons set out in the district court’s [opinion]”). Thus, even when Utah substantive law was involved, the federal district court of Utah and the Tenth Circuit have held that the federal courts may grant a defendant summary judgment on a negligence [**17] claim even if the parameters of the standard of care in the relevant industry have not been previously established by precedent or statute. 4 See also Noel v. Martin, No. 00-1532, 21 Fed. Appx. 828, 836 *7 (10th Cir. Oct. 19, 2001) (unpublished) (upholding summary judgment for defendants in a legal malpractice case where the district court properly dismissed plaintiff’s only expert on the issue of the standard of care).

4 Admittedly, there is no indication in Keller v. Albright, 1 F. Supp. 2d 1279, that the plaintiff there argued that the Utah standard for granting summary judgment in a negligence claim should apply.

In Foster v. Alliedsignal, Inc., 293 F.3d 1187 (10th Cir. 2002), this court addressed a closely analogous set of facts involving a conflict between federal and state law standards for granting summary judgment. Foster involved a retaliatory discharge case brought pursuant to Kansas law. Id. at 1190-91. Under Kansas law, a plaintiff can prevail at trial if she establishes [*1128] her case with “clear and convincing evidence.” Id. at 1194 (internal quotation omitted). However, Kansas law provides that “a plaintiff in a retaliation case . . . . can successfully oppose a motion for summary [**18] judgment by a preponderance of the evidence.” Id. at 1194 (internal quotation and citation omitted). In Foster, this court rejected the plaintiff’s efforts to have that lower evidentiary standard apply at the summary judgment stage in federal court. Id. at 1194-95. Instead, this court held that the Supreme Court’s opinion in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), [HN6] required that courts “view the evidence through the prism of the substantive evidentiary burden.” Id. at 254; see also Silkwood v. Kerr-McGee Corp., 769 F.2d 1451, 1454-55 (10th Cir. 1985) (stating, in the context of a motion for judgment notwithstanding the verdict, that “the question of the sufficiency of the evidence needed to go to the jury in a diversity case is a matter of federal law”); Bank of Cali., N.A. v. Opie, 663 F.2d 977, 979 (9th Cir. 1981) (“[F]ederal law alone governs whether evidence is sufficient to raise a question for the trier-of-fact.”). Applying that standard to the case before it, this court in Foster held that, at summary judgment, the plaintiff “must set forth evidence of a clear and convincing nature that, if believed by the ultimate factfinder, would establish that plaintiff was [**19] more likely than not the victim of illegal retaliation by her employer.” Foster, 293 F.3d at 1195. See also Conrad v. Bd. of Johnson County Comm’rs, 237 F. Supp. 2d 1204, 1266-67 (D. Kan. 2002) (holding that, for state law retaliatory discharge claims, the “clear and convincing standard is applied at the summary judgment stage–at least when the claim is brought in a federal court sitting in diversity”). Thus, although the state law dictated that a plaintiff alleging retaliatory discharge could avoid summary judgment under a preponderance of the evidence standard, [HN7] federal law required that the substantive standard applied at trial (i.e., clear and convincing evidence) governs summary judgment determinations. See Hanna v. Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965); McEwen v. Delta Air Lines, Inc., 919 F.2d 58, 60 (7th Cir. 1990) (“Federal courts may grant summary judgment under Rule 56 on concluding that no reasonable jury could return a verdict for the party opposing the motion, even if the state would require the judge to submit an identical case to the jury.”); 10A Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure § 2712 (3d ed. 1998) (“[I]n diversity-of-citizenship [**20] actions questions relating to the availability of summary judgment, such as whether there is a disputed issue of fact that is sufficient to defeat the motion, are procedural and therefore governed by Rule 56, rather than by state law.”).

The circumstances of this case are very similar to what we addressed in Foster. Like the evidentiary rule in Foster, [HN8] Utah’s rule foreclosing summary judgment in cases where the standard of care has not been fixed by law applies exclusively at summary judgment. This is clear because Utah law provides that, at trial, the plaintiff has the burden of demonstrating the appropriate standard of care. See Webb v. Univ. of Utah, 2005 UT 80, 125 P.3d 906, 909 (Utah 2005) (“To establish a claim of negligence, the plaintiff must establish . . . that the defendant owed the plaintiff a duty [and] that the defendant breached that duty . . . .”) (citations and quotations omitted); Sohm v. Dixie Eye Ctr., 166 P.3d 614, 619, 2007 UT App 235 (Utah Ct. App. 2007) (“To sustain a medical malpractice action, a plaintiff must demonstrate . . . the standard of care by which the [physician’s] conduct is to be measured . . . .” (quoting Jensen v. IHC Hosps., Inc., [*1129] 2003 UT 51, 82 P.3d 1076, 1095-96 (Utah 2003)) (alteration [**21] in original)); see also Model Utah Jury Instructions, Second Edition, CV301B (2009), http://www.utcourts.gov/resources/muji/ (stating that “to establish medical malpractice” a plaintiff “has the burden of proving,” inter alia, “what the standard of care is”); id. at CV302 (putting the same burden of proof on a plaintiff attempting to prove nursing negligence). By allowing the plaintiff to avoid summary judgment in cases where the standard of care has not been fixed by law, Utah has created a rule very similar to Kansas’s rule allowing plaintiffs to avoid summary judgment under a lesser standard of proof than they would carry at trial. We are, therefore, bound to treat Utah’s unique summary judgment rule in the same way that we treated the rule in Foster, and conclude that, although we will look to Utah law to determine what elements the plaintiffs must prove at trial to prevail on their claims, see Oja v. Howmedica, Inc., 111 F.3d 782, 792 (10th Cir. 1997) (stating that “in a diversity action we examine the evidence in terms of the underlying burden of proof as dictated by state law”), we will look exclusively to federal law to determine whether plaintiffs have provided enough evidence [**22] on each of those elements to withstand summary judgment. 5 As we discuss in the following section, this approach leads us to concur with the district court’s decision granting summary judgment for the defendants.

5 Even if the defendants have some burden to establish that the race was run in accordance with the standard of care in order to be granted summary judgment, they have met that burden controlling. The defendants put on evidence from a number of experienced biking participants that this race was carefully run in accordance with the standard of care they have come to expect in mountain-bike races. Once the testimony of plaintiffs’ expert Sean Collinsworth is excluded, as we hold later was appropriate, plaintiffs put on no conflicting evidence from any witness qualified to articulate a proper standard of care for a mountain bike race. Further, under Utah law, it would probably be unnecessary for defendants to present expert testimony to establish compliance with the standard of care in this case. Compare Collins v. Utah State Dev. Ctr., 992 P.2d 492, 494-95, 1999 UT App 336 (Utah Ct. App. 1999) (holding that expert testimony was not necessary in case involving claim that a center working with the [**23] developmentally disabled was negligent for allowing a resident to ride a swing without any safety devices designed to ensure that she would not fall off), and Schreiter v. Wasatch Manor, Inc., 871 P.2d 570, 574-75 (Utah Ct. App. 1994) (holding that expert testimony was not necessary in a case involving allegations that a senior living center was negligent for failing to install a fire sprinkler system), with Macintosh v. Staker Paving and Const. Co., 2009 UT App 96, 2009 WL 953712, *1 (Utah Ct. App. 2009) (unpublished) (holding that expert testimony was needed to establish the standard of care in a case involving traffic control at a construction site because of the complex rules governing traffic control in that context); see generally Preston & Chambers, P.C. v. Koller, 943 P.2d 260, 263 (Utah Ct. App. 1997) (“Expert testimony is required where the average person has little understanding of the duties owed by particular trades or professions, as in cases involving medical doctors, architects, and engineers.”) (citations and quotations omitted). In any event, plaintiffs have cited no law establishing that Utah would require an expert in this case, and have not addressed this question in their [**24] briefs, so this issue is not before us on appeal. Thus, even if the defendants have the burden at summary judgment to establish that there is no genuine dispute of fact that their conduct satisfied the applicable standard of care, we hold that on this summary judgment record, defendants satisfied that burden.

B. Plaintiffs Failed to Provide Evidence of Gross Negligence

1. Standard of Review

[HN9] “This court reviews the district court’s summary judgment decision de novo, viewing the evidence in the light most favorable to the non-moving party . . . .” Beardsley v. Farmland Co-Op, Inc., 530 F.3d 1309, 1313 (10th Cir. 2008) (quoting Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 679-80 [*1130] (10th Cir. 2007)) (ellipses in original). “Summary judgment is appropriate if the record evidence shows there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1255 (10th Cir. 2005) (citing Fed. R. Civ. P. 56(c)). This court will grant summary judgment for a defendant if the plaintiff fails adequately “to support one of the elements of their claim upon which they ha[ve] the burden of proof.” Jensen, 1 F.3d at 1079. [**25] A plaintiff “cannot avoid summary judgment merely by presenting a scintilla of evidence to support her claim; she must proffer facts such that a reasonable jury could find in her favor.” Turner v. Public Serv. Co. of Colo., 563 F.3d 1136, 1142 (10th Cir. 2009) (citation omitted).

2. Analysis

The parties agree that, under Utah law, the liability releases signed by Mr. Milne and Mr. Hall preclude the plaintiffs from bringing ordinary negligence claims against the defendants. See Pearce, 179 P.3d at 765 (stating that [HN10] “people may contract away their rights to recover in tort for damages caused by the ordinary negligence of others”); see also id. at 766 (holding that “recreational activities do not constitute a public interest and that, therefore, preinjury releases for recreational activities cannot be invalidated under the public interest exception”). However, the plaintiffs argue–and, on appeal, the defendants do not contest–that, under Utah law, a liability release will not prevent a plaintiff from bringing claims of gross negligence. Cf. Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, 1065 (Utah 2001) (stating in dicta that a liability release “is always invalid if it applies to harm [**26] wilfully inflicted or caused by gross or wanton negligence”) (quoting 6A Arthur L. Corbin, Corbin on Contracts, § 1472, at 596-97 (1962)). Thus, the only merits issue raised on appeal is whether plaintiffs have offered enough evidence in support of their claims of gross negligence to withstand a motion for summary judgment. 6

6 Aside from her negligence and gross negligence claims, Plaintiff Sorrow also brought wrongful death claims relating to Mr. Hall’s death. However, the appellants have not adequately addressed those claims on appeal, so they will be deemed to have been waived. See United States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004) ( [HN11] “The failure to raise an issue in an opening brief waives that issue.”).

[HN12] Under Utah law, “[g]ross negligence is the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.” Moon Lake Elec. Ass’n, Inc. v. Ultrasystems W. Constructors, Inc., 767 P.2d 125, 129 (Utah Ct. App. 1988) (quoting Atkin Wright & Miles v. Mountain States Tel. & Tel. Co., 709 P.2d 330, 335 (Utah 1985)) (emphasis added); see also Pearce, 179 P.3d at 767 (same). Thus, “the task [**27] confronting a plaintiff who claims injury due to a defendant’s gross negligence is markedly greater than that of a plaintiff who traces his injury to ordinary negligence. Gross negligence requires proof of conduct substantially more distant from the appropriate standard of care than does ordinary negligence.” Berry, 171 P.3d at 449.

[HN13] “Whether an actor’s conduct constitutes negligence is generally a factual question left to a jury. The question should only be answered by the court in rare cases where the evidence is susceptible to only one possible inference.” Roberts v. Printup, 422 F.3d 1211, 1218 (10th Cir. 2005) (citations and quotations omitted). However, appeals courts have affirmed grants of summary judgment on gross negligence claims where the undisputed evidence showed that the defendants [*1131] took precautionary measures and did not ignore known and obvious risks. Cf. Milligan v. Big Valley Corp., 754 P.2d 1063, 1069 (Wyo. 1988) (affirming summary judgment for defendants on “willful and wanton misconduct” claim, holding that the defendants “did not act in utter disregard of” plaintiffs’ safety in organizing a ski race where the race organizers had taken a number of safety precautions, [**28] plaintiffs presented no evidence that there was a preexisting requirement to take additional precautions, and the racers had been notified in advance of the dangers of the race); Santho v. Boy Scouts of Am., 168 Ohio App. 3d 27, 2006 Ohio 3656, 857 N.E.2d 1255, 1262-63 (Ohio Ct. App. 2006) (affirming directed verdict on claim of recklessness arising from an ice skating race in part because race organizers took some safety precautions and there was no evidence that organizer had knowingly disregarded any specific dangers or contravened any industry standards).

Moon Lake Elec. Ass’n, Inc., 767 P.2d at 129. In this case, the plaintiffs have fallen short of producing evidence upon which a jury could conclude that the defendants failed to exercise “even slight care” in organizing and administering this race.

Mountain bike racing is an inherently dangerous sport, so the defendants cannot be considered grossly negligent merely because they organized a race that placed the racers at risk of injury and even death. Rather, the court must look at the specific steps the defendants took to ensure the racers’ safety in order to determine whether a jury could decide that they were grossly negligent.

As discussed above, the undisputed evidence [**29] shows that the race organizers took a number of steps to warn of, and protect against, the risk of an automobile accident during the race. The race organizers posted a sign warning people in the area of the upcoming race, posted attendants near the starting line to warn drivers about the race taking place that day, and approached people camped in the area to warn them that the road would be clogged with bikers that morning.

The race organizers also provided 25 course marshals, some of which were assigned to areas like intersections and sharp turns specifically because of the unique risks of automobile traffic in those areas. No one was assigned to the area right near the accident, but that choice was not grossly negligent in light of the fact that the stretch of road where the accident occurred was relatively straight and wide. The race organizers also had some first aid personnel standing by, in addition to Mr. Jean, who carried a backpack with some medical supplies.

Finally, the racers were warned–both in writing and verbally–that they might encounter traffic during the race. The racers’ decision to compete on a course that they knew they would be sharing with automobiles strongly [**30] undercuts their ability to claim after the fact that it was grossly negligent for the race organizers to conduct an open course race. Cf. Walton v. Oz Bicycle Club of Wichita, No. 90-1597-K, 1991 U.S. Dist. LEXIS 17655, 1991 WL 257088, *4 (D. Kan. Nov. 22, 1991) (granting defendants summary judgment on negligence claim arising from plaintiff striking an automobile during a bicycle race organized by the defendants in part because “the fact that the course was open to normal traffic was explicitly made known to the participants”).

Mr. Konitshek claimed that the organizers’ efforts to warn people in the area of the upcoming race were ineffective, because he did not know about the race until moments before the accident. Mr. Konitshek’s complaints about the sufficiency of the race organizers’ warnings do not rise to the level of creating a material issue of [*1132] fact with regard to gross negligence for two reasons. First, even if the race organizers’ warnings were imperfect, that does not negate the fact that they made rather substantial efforts to warn people, and their failure to reach every person in the area is insufficient to show gross negligence. Second, although Mr. Konitshek testified that he would have changed [**31] his plans if he had known about the race in advance, the plaintiffs presented no reason for this court to think that most drivers would change their plans to avoid a bicycle race on a 6-mile stretch of open road.

[HN14] Utah requires a very high level of disregard for safety in order to constitute gross negligence. See Pearce, 179 P.3d at 767; Atkin Wright & Miles, 709 P.2d at 335; Moon Lake Elec. Ass’n, Inc., 767 P.2d at 129. The undisputed steps that defendants took to enhance the safety of the TOC would prevent any reasonable juror from finding gross negligence under Utah substantive law. Many of the precautions discussed above were specifically designed to prevent accidents with automobiles. Further, there was no evidence that automobile accidents posed a particularly serious risk in this case. On the contrary, the race had been conducted on an open course for over a decade, and this is the first instance of an accident involving a racer and a vehicle. Thus, the organizers’ failure to shut down the road, mark and enforce a center line on the road, more closely monitor vehicular traffic, or more thoroughly warn other area drivers of the upcoming race cannot, as a matter of law, amount to [**32] gross negligence in light of the other safety steps taken by the organizers of this race. Cf. Holzer v. Dakota Speedway, Inc., 2000 SD 65, 610 N.W.2d 787, 793-94 (S.D. 2000) (affirming summary judgment for defendants on reckless conduct claim relating to harm caused to a pit crew member during an automobile race in part because the allegedly reckless conduct that led to the harm in that case had been present during races for three years prior to this accident, and had never before caused anyone any harm).

An examination of cases in other jurisdictions shows that [HN15] courts have been reluctant to find that race organizers have been grossly negligent for failing to take every precaution that 20/20 hindsight might counsel. See Milligan, 754 P.2d at 1069 (affirming summary judgment for defendants on “willful and wanton misconduct” claim arising out of a ski race where the race organizers had taken a number of safety precautions, plaintiffs presented no evidence that there was a preexisting requirement to take additional precautions, and the racers had been notified in advance of the dangers of the race); Santho, 857 N.E.2d at 1262-63 (affirming directed verdict on claim of recklessness arising from an [**33] ice skating race in part because race organizers took some safety precautions and there was no evidence that organizer had knowingly disregarded any specific dangers or contravened any industry standards); Holzer, 610 N.W.2d at 793-94 (affirming summary judgment for defendants on reckless conduct claim relating to harm caused to a pit crew member during an automobile race in part because plaintiff failed to show that, at the time of the accident, the defendants “knew or had reason to know of an unreasonable risk of harm” to the defendant); Walton, 1991 U.S. Dist. LEXIS 17655, 1991 WL 257088 at *4 (granting defendants summary judgment on negligence claim arising from plaintiff striking an automobile during a bicycle race organized by the defendants in part because “the fact that the course was open to normal traffic was explicitly made known to the participants”).

We therefore agree with the district court’s determination that the plaintiffs in this case have failed to provide evidence upon which a reasonable jury could conclude [*1133] that the race organizers were grossly negligent. 7 See Turner, 563 F.3d at 1142 (stating that, [HN16] to avoid summary judgment, a plaintiff “must proffer facts such that a reasonable jury could [**34] find in her favor”).

7 Because we decide this case on the grounds that plaintiffs have failed to present evidence of gross negligence, we do not reach the defendants’ separate argument that, even if they were grossly negligent, their negligence could not have proximately caused the harms complained of in this case.

C. District Court did not Abuse its Discretion by Excluding Plaintiffs’ Expert

1. Standard of Review

[HN17] “Like other evidentiary rulings, [the court] review[s] a district court’s decision to exclude evidence at the summary judgment stage for abuse of discretion.” Sports Racing Servs. v. Sports Car Club of Am.., 131 F.3d 874, 894 (10th Cir. 1997) (citations omitted). “[A] district court abuses its discretion when it renders an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.” Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1163 (10th Cir. 2000) (citations and quotations omitted).

[HN18] When testing the admissibility of expert testimony, courts must first determine whether an expert is “qualified by ‘knowledge, skill, experience, training, or education’ to render an opinion.” Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001) [**35] (quoting Fed. R. Evid. 702). Second, if the court determines that a witness is qualified, it must then “determine whether her opinions [a]re ‘reliable.'” Id.

The district court struck the second affidavit of plaintiffs’ expert Sean Collinsworth, concluding that he was “not sufficiently qualified to render expert testimony on the applicable standards of care for mountain bike racing, particularly regarding the TOC[, and] that any such testimony would be speculative and not sufficiently reliable . . . .” (Appx. at 9.)

2. Analysis

Plaintiffs rely heavily on their expert’s testimony to support their claim that the race organizers were grossly negligent. However, plaintiffs’ expert, Sean Collinsworth, admittedly had no experience in organizing, supervising, or studying mountain bike races and, therefore, was not qualified to offer expert testimony on the standard of care for mountain bike races. At his deposition, Mr. Collinsworth was asked, “As a matter of fact–just so we’re clear, you’re not an expert on mountain bike racing . . . Is that a fair statement?” (Appx. at 641.) He answered, “Yes, it is.” (Id.) Nor was he even an experienced mountain bike rider. He had only participated in one [**36] or two mountain bike races, and those were more than 15 years ago. He had never published any articles about bicycle racing of any sort, let alone mountain bike racing. He testified that, as a police officer, he investigated hundreds of vehicle-bicycle collisions, but there was no indication that any of those took place on a dirt road or in the course of a race.

Although Mr. Collinsworth had experience organizing and supervising paved road bike races, the district court reasonably concluded that his experience was insufficient to qualify him to testify about mountain bike races. The facts of this case make it clear that the rules and practices that prevail at mountain bike races–even the on-the-road portion of mountain bike races–are different from the rules and practices that prevail at traditional road races. Most importantly, road racers are always required to obey a center-line [*1134] rule, while mountain bikers racing on dirt roads will generally cross the center-line when there is no oncoming traffic, but are expected to veer right if they see any traffic approaching. Furthermore, the conditions of a road race on paved streets with clearly marked center lines differ significantly from [**37] the conditions of the open-course portion of the TOC, which took place on a dirt road with no clearly marked center line. Given the differences between road races and mountain bike races, we conclude that the district court’s finding that Mr. Collinsworth was unqualified to offer expert testimony on the standard of care for mountain bike races was not “arbitrary, capricious, whimsical, or manifestly unreasonable.” Atlantic Richfield Co., 226 F.3d at 1163; cf. Ralston, 275 F.3d at 970-71 (upholding district court’s determination that a board certified orthopaedic surgeon was not qualified to testify about an orthopaedic device that she had never worked with or studied); Bertotti v. Charlotte Motor Speedway, Inc., 893 F. Supp. 565, 569-70 (W.D.N.C. 1995) (striking expert testimony regarding design of go-kart track where expert had experience in automobile racing, but not go-kart racing).

Even if Mr. Collinsworth was qualified to offer an expert opinion on the standard of care for mountain bike races, the district court correctly determined that his testimony in this case was unreliable. [HN19] “To determine whether an expert opinion is admissible, the district court performs a two-step analysis. [**38] First, the court must determine whether the expert is qualified by ‘knowledge, skill, experience, training, or education’ to render an opinion. See Fed. R. Evid. 702. Second, if the expert is sufficiently qualified, the court must determine whether the expert’s opinion is reliable . . . .” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). “In reviewing whether an expert’s testimony is reliable, the trial court must assess the reasoning and methodology underlying the expert’s opinion.” United States v. Rodriguez-Felix, 450 F.3d 1117, 1123 (10th Cir. 2006) (citations and quotations omitted). Mr. Collinsworth’s opinions in this case were not based on a study of other similar races, an analysis of precautionary measures used in mountain bike races and the risks and benefits of such measures, or any other empirical or quantitative studies. Instead, he relied almost exclusively on his experience in paved road racing–experience that the district court reasonably determined was inapplicable to the context of mountain bike racing–to form his conclusions about the standard of care that should have been used in this case. Mr. Collinsworth’s conclusions about the safety [**39] precautions that should have been taken in this case are, therefore, mere speculation, and [HN20] “[i]t is axiomatic that an expert, no matter how good his credentials, is not permitted to speculate.” Goebel v. Denver and Rio Grande Western R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000). Without their expert’s testimony, the plaintiffs’ claims fall apart. See Bertotti, 893 F. Supp. at 570 (granting summary judgment for defendants on plaintiffs’ claim that defendants were grossly negligent in designing and maintaining a go-kart track where the only evidence plaintiffs provided in support of their claims of gross negligence was inadmissible expert testimony). 8

8 The district court’s holding on this matter was limited to Mr. Collinsworth’s second affidavit because the defendants did not also move to strike plaintiffs’ expert’s initial report or his deposition testimony. However, the district court’s ruling clearly indicated that it would not allow this expert to testify as an expert on any of the issues in this case. Therefore, we do not consider either of Mr. Collinsworth’s affidavits or his deposition testimony in deciding the merits of plaintiffs’ claims.

[*1135] III. Conclusion

For the foregoing reasons, [**40] we AFFIRM the district court’s decisions to strike the plaintiff’s expert’s second affidavit and to grant summary judgment for the defendants.

CONCUR BY: GORSUCH (In Part)

CONCUR

GORSUCH, Circuit Judge, concurring in part and concurring in the judgment.

I join all but Section II.C of Judge Ebel’s fine opinion. That section concerns the admissibility of testimony by the plaintiffs’ expert, Sean Collinsworth. The majority upholds the district court’s decision to exclude Mr. Collinsworth’s testimony on the ground that he wasn’t an expert in the relevant field. I have my doubts. Mr. Collinsworth may not be a professional mountain bike racer, but he does have substantial experience in organizing and conducting traffic control operations for bicycle racing and similar events — and the adequacy of the defendants’ traffic control operations lie at the heart of this case.

Still, I would affirm the district court’s exclusion of Mr. Collinsworth for a different reason. The only question in this case is gross negligence — namely, whether defendants took any precautions against the accident that took place. See, e.g., Pearce v. Utah Athletic Found., 2008 UT 13, 179 P.3d 760, 767 (Utah 2008) (Gross negligence is “the failure to [**41] observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.”) (emphasis added); cf. Berry v. Greater Park City Co., 2007 UT 87, 171 P.3d 442, 449 (Utah 2007) (“Gross negligence requires proof of conduct substantially more distant from the appropriate standard of care than does ordinary negligence.”). Mr. Collinsworth’s proffered testimony faults the sufficiency of the defendants’ precautions, but doesn’t dispute that the defendants did exercise some degree of care, however slight, in preparing for and managing this race. His testimony, thus, might well have been relevant to a negligence claim, but it doesn’t illuminate the plaintiffs’ gross negligence claim. And a district court is not obliged to entertain evidence, expert or otherwise, irrelevant to the claims before it. See Fed. R. Evid. 402 (“Evidence which is not relevant is not admissible.”). With this minor caveat, I am pleased to join.


Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.

Spectators are always the biggest risk of many outdoor recreational activities. Even if they are behind fences or lines, the creep closer to the event and if a competitor leaves the track or run, it is the event host who might pay for the damages to the spectators.

Ochall et al., v. McNamer et al., 2016-Ohio-8493; 2016 Ohio App. LEXIS 5337

State: Ohio, Court of Appeals of Ohio, Tenth Appellate District, Franklin County

Plaintiff: Andrea Ochall et al.,

Defendant: William M. McNamer et al.,

Plaintiff Claims: negligence, recklessness, negligent and/or reckless design, construction, operation and maintenance, failure to warn or instruct, negligent infliction of emotional distress, negligent entrustment, negligent supervision, vicarious liability, and loss of consortium

Defendant Defenses: Assumption of the Risk

Holding: for the Defendants

Year: 2016

This court was almost tedious in its review of the facts and the application of the law to the facts in this case. This case is another one outside of the normal scope of this review; however, it covers assumption of the risk in infinite detail under Ohio’s law and deals with claims of spectators. Spectators are present at most sporting events and in some cases assume the risk, like the baseball rule at baseball games and sometimes do not.

The defendant land owner’s kids built  a go-kart track. The decision involves a go-kart track in a homeowner’s back yard. The track was just a simple asphalt track. There were no barriers, no bleachers, nothing else except one bench. The land owner worked for a paving company so the track was paved. There was also a paved driveway from the barn where the go-karts were kept to the track. The track was built for no other purpose than for the use and enjoyment of the landowners and people they might invite over.

The track owner’s next-door neighbors used the track a lot and owned a go-kart that was stored with the landowner’s go-karts. However, the neighbors never used the track without asking permission before hand.

One day, the neighbors wanted to invite their friends to the track. Those friends became the plaintiffs.

Everyone took turns driving go-karts around the track, including the plaintiff. When not driving the go-karts, most of the people seemed to congregate on the asphalt drive between the track and the barn. The plaintiff argued this was a safe environment and the place to stand. There were no barriers between this or any place around the track and the track.

Various times during the day, different people drove off the track. After going off the track people simply drove back on the track and kept racing.

When not racing, the plaintiff was taking pictures. Taking pictures obscured the plaintiff’s view of what was going on sometimes.

During one race, the headband of one of the go-kart drivers slid down over her eyes. She grabbed the headband and through it off. While doing so she drove off the track striking the plaintiff.

The last picture the plaintiff took was the driver throwing her headband off.

The plaintiff’s sued the paving company the landowner worked for, as well as the landowner. The paving company was dismissed earlier on its motion and was not part of this discussion.

The plaintiff’s sued the landowner and the neighbors who invited them. The trial court dismissed the plaintiff’s claims based on various motions filed by the different defendants. The plaintiff appealed. The arguments presented in the various motions were boiled down to two and discussed without regard to the plaintiffs and all defendants even though they filed separate motions.

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

The appellate court first looked at assumption of the risk and whether it applied to this case. Assumption of the risk means the defendant owes the plaintiff no duty. Therefore, there is no negligence. Ohio recognizes three types of assumption of the risk: express, primary and secondary (implied).

Ohio law recognizes three categories of assumption of the risk as defenses to a negligence claim: express, primary, and implied or secondary.” “Express assumption of the risk applies when parties expressly agree to release liability.” “Implied assumption of risk is defined as plaintiff’s consent to or acquiescence in an appreciated, known or obvious risk to plaintiff’s safety.” “Under this approach to assumption of risk, defendant owes to plaintiff some duty, but it is plaintiff’s acquiescence in or appreciation of a known risk that acts as a defense to plaintiff’s action.”

Primary assumption of the risk is the defense that is applied to people who voluntarily engage in sports or recreational activities.

Under the doctrine of primary assumption of the risk, a plaintiff who voluntarily engages in a recreational activity or sporting event assumes the inherent risks of that activity and cannot recover for injuries sustained in engaging in the activity unless the defendant acted recklessly or intentionally in causing the injuries.”

The argument for this is some sports or recreational activities cannot be played without risk. If the risk is removed from the sport, then the value in playing or the sport disappears. Another baseball example is the batter assumes the risk of being hit by a badly thrown pitch. If you remove that risk, the batter has nothing to swing at and there is no game of baseball.

By participating in an activity, the plaintiff “tacitly consent[s]” to the risk of injury inherent in the activity. Id. The test requires that: “(1) the danger is ordinary to the game, (2) it is common knowledge that the danger exists; and (3) the injury occurs as a result of the danger during the course of the game.”

Ohio law applies the doctrine of primary assumption of the risk to participants and spectators alike [emphasize added].

Thus, courts apply the doctrine of primary assumption of the risk to cases involving sporting events and recreational activities, and generally extend the doctrine to relieve liability of owners, operators, and sponsors of recreational activities. The doctrine applies regardless of whether the activity was engaged in by children or adults, or was organized, unorganized, supervised, or unsupervised. The doctrine also applies to spectators and participants alike.

Assumption of the risk when applied to a sport or recreational activity is not dependent upon the plaintiff’s knowledge and appreciation of the risks of the sport or activity. Normally to assume the risk a person must know and understand the risk as required in primary assumption of the risk. In sporting or recreational activities, knowledge of the risk is immaterial. Whether a participant assumes the risk is solely based on the risks of the sport, not what the participant knows.

Furthermore, when considering primary assumption of the risk, “the injured plaintiff’s subjective consent to and appreciation for the inherent risks are immaterial to the analysis.” (Noting that the plaintiff’s subjective consent to the inherent risks of an activity are immaterial, because “[t]hose entirely ignorant of the risks of the activity, still assume the risk by participating in the activity”). Indeed, “primary assumption of risk requires an examination of the activity itself and not plaintiff’s conduct.”

Those risks that apply are the ones directly associated with the activity. Consequently, a court must proceed with caution when examining the activity and the risks because assumption of the risk is a complete bar because no negligence can be proved. Was the risk that injured the plaintiff a risk of the sport and if so, was that risk increased by the activity of the defendant. If the risks are part and parcel of the sport, then the defendant does not owe a duty to the plaintiff.

[O]nly those risks directly associated with the activity in question are within the scope of primary assumption of risk.'” “The affirmative defense of primary assumption of the risk completely negates a negligence claim because the defendant owes no duty to protect the plaintiff against the inherent risks of the recreational activity in which the plaintiff engages.”

The doctrine of applying primary assumption of the risk to sports and recreational activities was created to ensure the sport was played vigorously and freely without fear of reprisal.

The “goal” of the primary assumption of the risk doctrine “is to strike a balance between encouraging vigorous and free participation in recreational or sports activities, while ensuring the safety of the players.” that the “overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature”);…

That doctrine then defines primary assumption of the risk when applied to a sport as:

…where injuries stem from ‘conduct that is a foreseeable, customary’ part of the activity, the defendant ‘cannot be held liable for negligence because no duty is owed to protect the victim from that conduct.’

The test is then applied with a three-part test.

Under the three-part test, a danger ordinary to a game is a danger which is customary to the game. (observing that “[f]alling is an ordinary danger of ice-skating,” and that “[c]olliding with the perimeter boards is an ordinary danger of ice rink skating”). When a danger is a foreseeable part of a game, there will be common knowledge that the danger exists.

Risks that are “foreseeable, common, and customary risks of the activity” are therefore assumed by participants whether they knew of the risks or not. The Ohio Supreme Court further defined the definition to mean “‘[t]o be covered under the doctrine, the risk must be one that is so inherent to the sport or activity that it cannot be eliminated.’”

Looking at the risks of go-karting the court found that it was an inherent risk of the sport for a go-kart to leave the track. (Since go-karts had been leaving the track all day, this seems pretty implicit and also gives the plaintiff notice of the risk, although not required by the definition of primary assumption of the risk.)

Pursuant to our de novo review, we have determined that an inherent risk of go-karting is the risk that a go-kart will deviate from its intended course upon the track and strike any object, which may be present around the track. As such, absent evidence of reckless or intentional conduct, primary assumption of the risk applies to the facts of this case and defeats appellants’ negligence claims. Accordingly, we have reached the same result as the trial court, albeit for different reasons.

Primary assumption of the risk barred the claims of the plaintiffs.

The court then looked at whether the actions of the driver who left the track and struck the plaintiff where reckless which would defeat the defense of assumption of the risk. The court looked at the definition of recklessness under Ohio’s law.

An actor’s conduct is reckless when the actor “‘does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another,'” but also “‘that such risk is substantially greater than that which is necessary to make his conduct negligent.

That conduct must be measured against how the sport is played.

What constitutes an unreasonable risk under the circumstances of a sporting event must be delineated with reference to the way the particular game is played, i.e., the rules and customs that shape the participants’ ideas of foreseeable conduct in the course of a game.”

Thus, “[i]f the rules of a sport allow conduct intended to harm another player, as they do in boxing or football, for example, it follows that those same rules allow behavior that would otherwise give rise to liability for recklessness.”

The plaintiff argued the defendants were reckless in failing to inform the plaintiff of the rules of the track. The court found there were no rules and there was no obligation to create them. The track was a backyard track built by the songs of the landowner for their enjoyment. There were no rules nor was there a requirement for the landowner to create rules for the use of the track.

Additionally, there is no duty to reduce or eliminate the risks of a recreational activity. The only duty is to not increase the risk of the activity. Consequently, the land owners did not owe a duty to create rules for the track or to inform the spectators of any rules if they were created.

Courts from other jurisdictions, however, have held that “operators, sponsors and instructors in recreational activities posing inherent risks of injury have no duty to eliminate those risks, but do owe participants the duty not to unreasonably increase the risks of injury beyond those inherent in the activity

The son of the landowner who built the track stated he had a ruled that spectators should stay in the barn. However, he had never enforced the rule. The court found that rule of no real value and no duty to create, enforce it or tell the plaintiff about it.

Accordingly, as the organizer of the go-karting event that day, the McNamers owed appellants the duty to not increase the risk of harm beyond the risks inherent in the activity. Failing to inform appellants about Brian McMillen’s rule did not increase the risks inherent in the activity of go-karting, as it did not increase the risk that go-karts would crash into one another, or that a driver would lose control of their go-kart and deviate from the track. Accordingly, the McNamers did not have a duty to inform the Ochalls about Brian McMillen’s rule. Construing the evidence in appellants favor, we find no evidence demonstrating that the McNamers intentionally failed to inform the Ochalls about Brian’s rule when they had a duty to do so. Accordingly, appellants have failed to demonstrate that the McNamers were reckless by failing to inform the Ochalls about Brian McMillen’s rule.

There was a bench located near the track. The defendant land owner’s son argued it was for racers to sit on between races to rest. The plaintiff argued it was there for spectators and built to entice the plaintiff to stand near it where she was injured. However, the court did not agree with this argument either.

However, there is no evidence indicating that the McMillens placed the bench there to “entice” people to congregate in that area. More importantly, the bench did not conceal any danger from appellants. The bench did not obscure appellants’ ability to see the barrier-less nature of the track or the go-karts driving off the track. There also was no evidence indicating that Mrs. Ochall ever sat on the bench; rather, the evidence indicated that Mrs. Ochall “moved around quite a bit to take photographs.”

The plaintiff’s then argued it was reckless of the defendants to conceal the dangers of the track by failing to warn them of the risks or educating them of the dangers. However, they could not tie these arguments, failing to warn, to the injury received by the plaintiff. The court found even if they had been informed of the risks, it would not have changed anything; the plaintiff would still have probably been injured.

Another recklessness claim was directed at the adults in charge of the minor driver who injured the plaintiff when she drove off the track. However, again, they could not relate those claims to the cause of the accident.

Indeed, appellants fail to make any connection between Doe’s allegedly aggressive driving and the accident. The record indicates only that it was an unfortunate slip of Doe’s headband, and Doe’s attendant need to remove her hand from the wheel in order to remove the headband from her face, which caused the accident. There is nothing in the record indicating that Doe’s alleged aggressive driving caused the accident.

Finally, the plaintiff claimed the minor driver was reckless in how she drove.

Finally, Doe’s act of removing her headband from her line of vision did not amount to reckless conduct. Doe did not remove the headband with any conscious choice of action, or with knowledge that doing so would cause her go-kart to jerk, veer off the track, and strike Mrs. Ochall.

This argument failed because reckless conduct is a conscious act. There was no conscious decision to drive off the track. The decision was to remove the headband when it was blinding her.

…reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man

The court could not find in the plaintiff’s recklessness arguments, a proximate cause or a relationship in the arguments that might have or would have changed the way things happened.

However, every tragic accident does not result in tort liability. Because Mrs. Ochall primarily assumed the risk of injury when she stood 10 to 12 feet away from the McMillens’ go-kart track, and no defendant engaged in reckless or intentional misconduct, the trial court properly granted the defendants’ motions for summary judgment. Having overruled appellants’ first and second assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas. As we have overruled the appellants’ assignments of error, the McMillens withdraw their assignment of error on cross-appeal.

The appellate court agreed with the trial court, and the case was dismissed.

So Now What?

The first issue is assumption of the risk applies to spectators. Spectators have always been the unknown possible lawsuit at events. Spectators usually pay to see the event so recreational use statutes provide no protection. They do not sign releases because they are not participating. However, based on this definition of assumption of the risk and the idea that a spectator should assume the risk because they watch the sport, a spectator is prevented from sung when injured under Ohio Law.

The second issue is the clear definitions of assumption of the risk defined in this.

On a side note, the plaintiff hired an expert witness who opined that the landowner should have built a small elevated wooden platform for spectators to stand on next to the track.

Hawn stated that a “reasonable solution to the safety issue for persons afoot” was to construct “a small elevated wooden platform (~7-8 inches in height) on the infield side of the start/finish/staging area.” Hawn concluded that the “failure to either provide a safe observation location or to otherwise dictate, communicate and enforce safety rules to protect guests from the potential hazard associated with spectating was unreasonable and made this an unsafe environment for persons afoot.”

The expert also opined that the spectator’s area should have been relocated to the inside of the track and elevated. (So you have a group of people above the track level all turning around together to watch the race……)

Can you see what would happen at backyard playgrounds, sandboxes and every other play or recreational device in backyards? Sand boxes would have to come with sneeze guards you see on salad bars so sand could not accidentally be thrown in a grandparent’s face.

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

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Valentino v. Philadelphia Triathlon, LLC, 2016 PA Super 248; 2016 Pa. Super. LEXIS 663

Valentino v. Philadelphia Triathlon, LLC, 2016 PA Super 248; 2016 Pa. Super. LEXIS 663

Michele Valentino, as Administratrix of the Estate of Derek Valentino, Deceased, and Michele Valentino, in her Own Right, Appellant v. Philadelphia Triathlon, LLC, Appellee

No. 3049 EDA 2013

SUPERIOR COURT OF PENNSYLVANIA

2016 PA Super 248; 2016 Pa. Super. LEXIS 663

November 15, 2016, Decided

November 15, 2016, Filed

PRIOR HISTORY:  [*1] Appeal from the Order Entered September 30, 2013. In the Court of Common Pleas of Philadelphia County. Civil Division at No(s): April Term, 2012 No. 1417.

Valentino v. Phila. Triathlon, LLC, 2015 PA Super 273, 2015 Pa. Super. LEXIS 862 (Pa. Super. Ct., 2015)

JUDGES: BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, PANELLA, SHOGAN, LAZARUS, OLSON and OTT, JJ. OPINION BY OLSON, J. Gantman, P.J., Bender, P.J.E., Bowes, Shogan and Ott, JJ., join this Opinion. Ford Elliott, P.J.E., files a Concurring and Dissenting Opinion in which Panella and Lazarus, JJ. join.

OPINION BY: OLSON

OPINION

OPINION BY OLSON, J.:

Appellant, Michele Valentino (in her own right and as administratrix of the estate of Derek Valentino), appeals from an order entered on September 30, 2013 in the Civil Division of the Court of Common Pleas of Philadelphia County granting summary judgment on behalf of Philadelphia Triathlon, LLC (Appellee). After careful consideration, we affirm.

In 2010, Appellee organized an event known as the Philadelphia Insurance Triathlon Sprint (the Triathlon). Three events comprised the Triathlon: a one-half mile swim, a 15.7 mile bicycle race, and a three and one-tenth mile run. Trial Court Opinion, 8/14/14, at 2. The swimming portion of the competition occurred in the Schuylkill River in Philadelphia, Pennsylvania. [*2]

To compete in the Triathlon, each participant was required to register for the event. As part of the registration process, participants paid a fee and electronically executed a liability waiver form.1 Each participant also completed and submitted a registration form to obtain a number and a bib to wear on the day of the race. Mr. Valentino electronically registered as a participant in the Triathlon on January 24, 2010.

1 Among other things, the lengthy form stated that Mr. Valentino “underst[ood] and acknowledge[d] the physical and mental rigors associated with triathlon,” “realize[d] that running, bicycling, swimming and other portions of such [e]vents are inherently dangerous and represent[ed] an extreme test of a person’s physical and mental limits,” and, “underst[ood] that participation involves risks and dangers which include, without limitation, the potential for serious bodily injury, permanent disability, paralysis and death [as well as] dangers arising from adverse weather conditions, imperfect course conditions, water, road and surface hazards, equipment failure, inadequate safety measures, participants of varying skill levels, situations beyond the immediate control of [Appellee], and other presently unknown risks and dangers[.]” Appellee’s Motion [*3]  for Summary Judgment Ex. G, 8/5/13. The form further provided that Mr. Valentino “underst[ood] that these [r]isks may be caused in whole or in part by [his] actions or inactions, the actions or inactions of others participating in the [e]vent, or the acts, inaction or negligence of [Appellee]” and that he “expressly assume[d] all such [r]isks and responsibility for any damages, liabilities, losses or expenses” that resulted from his participation in the event. Id. The liability waiver form also included a provision stating as follows: “[Mr. Valentino] further agree[s] that if, despite this [a]greement, he, or anyone on [his] behalf, makes a claim of [l]iability against [Appellee], [he] will indemnify, defend and hold harmless [Appellee] from any such [l]iability which [it] may [] incur[] as the result of such claim.” Id.

In block capital lettering above the signature line, the liability waiver provided that Mr. Valentino’s acceptance of the agreement confirmed that he read and understood its terms, that he understood that he would surrender substantial rights (including the right to sue), and that he signed the agreement freely and voluntarily. Id. Lastly, the form states that acceptance of the agreement constituted “a complete and unconditional release of all liability [*4]  to the greatest extent allowed by law.” Id.

On June 26, 2010, at approximately 8:30 a.m., Mr. Valentino entered the Schuylkill River to begin the first part of the Triathlon. He never completed the swimming portion of the competition or any other part of the race. The following day, on June 27, 2010, divers retrieved his body from the Schuylkill River.

Appellant (Mr. Valentino’s widow) filed her original complaint on April 12, 2012, asserting wrongful death and survival claims against various defendants, including Appellee. Thereafter, she amended her complaint on June 22, 2012. All of the defendants filed preliminary objections on June 22, 2012. On July 27, 2012, the trial court sustained the defendants’ preliminary objections and struck all references in Appellant’s amended complaint that referred to outrageous acts, gross negligence, recklessness, and punitive damages. The court concluded that these allegations were legally insufficient since the alleged facts showed only ordinary negligence. In addition, the court struck paragraphs 22(a), (c), (e), and (m) in the amended complaint on grounds that those averments lacked sufficient specificity. The defendants answered the amended complaint [*5]  and raised new matter on August 9, 2012.

Shortly after discovery commenced, the defendants moved for summary judgment in December 2012. The trial court denied that motion on January 29, 2013. Eventually, Appellant stipulated to the dismissal of all defendants except Appellee. At the completion of discovery, Appellee again moved for summary judgment on August 5, 2013. The trial court granted Appellee’s motion on September 30, 2013.2 Appellant sought reconsideration but the trial court denied her request. Appellant then filed a timely notice of appeal on October 23, 2013. Pursuant to an order of court, Appellant filed a concise statement of errors complained of on appeal in accordance with Pa.R.A.P. 1925(b). Subsequently, the trial court explained its reasons for sustaining Appellee’s preliminary objections in an opinion issued on March 18, 2014. In a separate opinion issued on August 14, 2014, the trial court set forth its rationale for granting Appellee’s motion for summary judgment.3

2 Because the trial court previously sustained preliminary objections to Appellant’s claims of outrageous acts, gross negligence, recklessness, and punitive damages, we read the trial court’s summary judgment order as dismissing [*6]  claims of ordinary negligence that comprised Appellant’s survival and wrongful death actions. In reaching this decision, the court relied upon the liability waiver executed by Mr. Valentino.

3 This Court filed its decision in Pisano v. Extendicare Homes, Inc., 2013 PA Super 232, 77 A.3d 651 (Pa. Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (Pa. 2014), cert. denied, 134 S. Ct. 2890, 189 L. Ed. 2d 838 (2014) on August 12, 2013, holding that  [HN1] a non-signatory wrongful death claimant was not bound by an arbitration agreement signed by a decedent. Owing to our decision in Pisano, the trial court in its Rule 1925(a) opinion urged this Court to vacate the order granting summary judgment as to Appellant’s wrongful death claims.

On December 30, 2015, a divided three-judge panel of this Court affirmed, in part, and reversed, in part, the rulings issued by the trial court. Specifically, the panel unanimously affirmed the trial court’s order sustaining Appellee’s preliminary objections. In addition, the panel unanimously agreed that: (1) the completion of discovery and the further development of the factual record defeated application of the coordinate jurisdiction rule and eliminated factual issues surrounding Mr. Valentino’s execution of the liability waiver; (2) Appellant’s failure to state viable claims involving recklessness, outrageousness, and intentional [*7]  misconduct on the part of Appellee mooted Appellant’s argument that a contractual waiver of such claims would be ineffective; and, (3) there was no basis to consider the sufficiency of the testimony of Appellant’s expert since the trial court did not address that issue. Citing Pisano, however, two of the three members of the petite panel concluded that the liability waiver executed by Mr. Valentino did not apply to Appellant because she was not a signatory to the agreement.4 Consequently, this Court vacated summary judgment in favor of Appellee as to Appellant’s wrongful death claims.5 Thereafter, both Appellant and Appellee requested reargument en banc. By order filed on March 11, 2016, this Court granted en banc reargument and withdrew our opinions of December 30, 2015. We now address the following questions:

1. Whether the [trial c]ourt erred in sustaining the [p]reliminary [o]bjections [] where, when the material facts set forth in the [a]mended [c]omplaint, as well as all reasonable inferences deducible therefrom, are accepted as true, it cannot be said with certainty that [Appellee’s] actions were not sufficiently reckless, outrageous and/or egregious to warrant an award of punitive damages?

2. Whether the [trial c]ourt erred [*8]  in sustaining the [p]reliminary [o]bjections [] and striking paragraph[s] 22(a), (c), (e), and (m) of the [a]mended [c]omplaint where these averments, and the [a]mended [c]omplaint in general, were sufficiently specific to enable [Appellee] to respond and prepare a defense?

3. Whether the [trial c]ourt erred in granting [Appellee’s] second [m]otion for [s]ummary [j]udgment where the issue of waiver and release was previously decided in the [o]rder of January 29, 2013 that denied [Appellee’s] first [m]otion for [s]ummary [j]udgment, and the [c]ourt was precluded by the coordinate jurisdiction rule from revisiting the question?

4. Whether the [trial c]ourt erred in granting [Appellee’s] [m]otion for [s]ummary [j]udgment where, when the record is viewed in the light most favorable to [Appellant], questions of fact remain as to whether the purported release in question was effectively executed by the decedent and, if it was, whether it was enforceable?

5. Whether the [trial c]ourt erred in granting [Appellee’s] [m]otion for [s]ummary [j]udgment where the report issued by Mark Mico fully and adequately addressed the questions of duty, breach of duty and causation and, in addition, he was fully qualified to render opinions in these regards?

Appellant’s Substituted Brief at 7-8.

4 Distinguishing the arbitration clause at issue in Pisano, the dissent found that Appellant’s claims were subject [*9]  to the liability waiver under which Mr. Valentino expressly assumed the risk of participating in the Triathlon since Appellant’s wrongful death action required her to demonstrate that Mr. Valentino’s death resulted from tortious conduct on the part of Appellee.

5 Our ruling did not purport to alter the trial court’s reliance on the liability waiver as grounds for entering summary judgment as to Appellant’s survival claims.

In the first issue, Appellant asserts that the trial court erred in sustaining the preliminary objections and striking all references to outrageous acts, gross negligence, and reckless conduct. Appellant also asserts that the trial court erred in dismissing her claims for punitive damages. The basis for these contentions is that, when the allegations set forth in the amended complaint are taken as true, the pleading asserts a claim that, “[Appellee] intentionally created a situation where swimmers [went] into a river with inadequate supervision and no reasonable means of rescue if they got into trouble.” Appellant’s Substituted Brief at 22 (emphasis in original).

The standard of review we apply when considering a trial court’s order sustaining preliminary objections is [*10]  well settled:

 [HN2] [O]ur standard of review of an order of the trial court overruling or [sustaining] preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.

 [HN3] Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom.  [HN4] Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

HRANEC Sheet Metal, Inc. v. Metalico Pittsburgh, Inc., 2014 PA Super 278, 107 A.3d 114, 118 (Pa. Super. 2014).

[HN5] In Pennsylvania, “[p]unitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” Hutchison v. Luddy, 582 Pa. 114, 870 A.2d 766, 770 (Pa. 2005), quoting, Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (Pa. 1984).  [HN6] “As the name suggests, [*11]  punitive damages are penal in nature and are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton or reckless conduct.” Hutchison, 870 A.2d at 770.  [HN7] To support a claim for punitive damages, the plaintiff must show that the defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that the defendant acted, or failed to act, in conscious disregard of that risk. Id. at 772.  [HN8] “Ordinary negligence, involving inadvertence, mistake or error of judgment will not support an award of punitive damages.” Hutchinson v. Penske Truck Leasing Co., 2005 PA Super 179, 876 A.2d 978, 983-984 (Pa. Super. 2005), aff’d, 592 Pa. 38, 922 A.2d 890 (Pa. 2007).

Appellant’s amended complaint alleges that Mr. Valentino died while swimming in the Schuylkill River during the Triathlon. The amended complaint alleges further that Appellee was inattentive to the needs of the contestants, failed to inspect or maintain the event course, failed to warn of or remove dangerous conditions, failed to properly plan or organize the event, failed to follow safety standards, and failed to properly train and supervise its employees. These allegations, however, averred nothing more than ordinary negligence arising from inadvertence, mistake, or error in judgment; they do not support a claim involving outrageous [*12]  behavior or a conscious disregard for risks confronted by Triathlon participants. Hence, the trial court correctly dismissed Appellant’s allegations of outrageous and reckless conduct and properly struck her punitive damage claims.

In the second issue, Appellant asserts that the trial court erred in sustaining the preliminary objections and striking paragraphs 22(a), (c), (e), and (m) from her amended complaint. Appellant maintains that these averments are sufficiently specific to enable Appellee to respond to Appellant’s allegations and to formulate a defense in this case.

Contrary to Appellant’s argument, we agree with the trial court’s assessment that the challenged portions of the amended complaint are too vague and ambiguous to satisfy the requirements found in Pa.R.C.P. 1019. [HN9]  Under Rule 1019, “[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019.  [HN10] “Pennsylvania is a fact-pleading state; a complaint must not only give the defendant notice of what the plaintiff’s claim is and the grounds upon which it rests, but the complaint must also formulate the issues by summarizing those facts essential to support the claim.” Feingold v. Hendrzak, 2011 PA Super 34, 15 A.3d 937, 942 (Pa. Super. 2011).

The challenged provisions of [*13]  Appellant’s amended complaint referred only to “dangerous conditions” (¶ 22(a)), “warnings” (¶ 22(c)), “failures to reasonably plan, operate, supervise, and organize the event” (¶ 22(e)), and “failures to employ adequate policies, procedures, and protocols in conducting the event” (¶ 22(m)) as the basis for her claims. Upon review, we concur in the trial court’s determination that this boilerplate language was too indefinite to supply Appellee with adequate information to formulate a defense.

Appellant cites the decision of the Commonwealth Court in Banfield v. Cortes, 922 A.2d 36 (Pa. Cmwlth. 2007) as supportive of her contention that the amended complaint set forth material facts with sufficient specificity. Banfield, however, is distinguishable. In that case, a group of electors filed suit alleging that the Secretary of the Commonwealth, in certifying the use of certain electronic systems in elections, failed to adopt uniform testing procedures that addressed the security, reliability, and accuracy of voting systems. The Secretary requested an order directing the plaintiffs to re-plead their allegations with greater specificity. In rejecting this request, the Commonwealth Court explained that in challenging the adequacy of the testing [*14]  features inherent in the newly adopted electronic voting systems, the plaintiffs provided sufficient facts to enable the Secretary to prepare a defense. Id. at 50.

Here, in contrast, Appellant referred vaguely, and without elaboration, to unspecified dangerous conditions, indefinite warnings, and generic failures to reasonably plan and employ adequate policies in carrying out the Triathlon. Moreover, even if Appellee possessed some knowledge of the facts around which Appellant’s allegations centered, this alone would not relieve Appellant of her duty to allege material facts upon which she based her claims. See Gross v. United Engineers & Constructors, Inc., 224 Pa. Super. 233, 302 A.2d 370, 372 (Pa. Super. 1973). Thus, Appellant’s reliance on Banfield is unavailing and we conclude that the trial court committed no error in striking paragraphs 22(a), (c), (e), and (m) from the amended complaint.

The final three claims challenge the entry of summary judgment in favor of Appellee. Our standard of review over such claims is well settled.

 [HN11] Th[e] scope of review of an order granting summary judgment is plenary. Our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or clearly abused its discretion.  [HN12] Summary judgment is [*15]  appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. When the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment.

Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 1221-1222 (Pa. 2002).

Appellant advances several arguments in support of her contention that the trial court erred in granting summary judgment. First, Appellant asserts that the coordinate jurisdiction rule precluded the trial court from addressing Appellee’s motion since a prior summary judgment motion was denied. Second, Appellant contends that genuine issues of material fact regarding whether Mr. Valentino actually executed a liability waiver form barred the entry of summary judgment in Appellee’s favor. Appellant next maintains that a plaintiff cannot contractually waive liability for reckless or intentional conduct and that, as a result, the liability waiver executed in this case is incapable of extinguishing [*16]  such claims. Appellant also asserts that, pursuant to our prior decision in Pisano, a decedent’s liability waiver is ineffective as to non-signatory third-party wrongful death claimants. Lastly, Appellant claims that the trial court erred in granting summary judgment because she offered the testimony of a qualified expert to address lingering questions of Appellee’s duty, breach of duty, and injury causation. We address these contentions in turn.

We begin with Appellant’s claim alleging that the coordinate jurisdiction rule precluded consideration of Appellee’s motion for summary judgment since the trial court denied a prior summary judgment motion.  [HN13] The coordinate jurisdiction rule holds that, “upon transfer of a matter between trial judges of coordinate jurisdiction, a transferee trial judge may not alter resolution of a legal question previously decided by a transferor trial judge.” Zane v. Friends Hospital, 575 Pa. 236, 836 A.2d 25, 29 (Pa. 2003). An exception to this rule applies, however, “when there has been a change in the controlling law or where there was a substantial change in the facts or evidence.” Id. We agree with the trial court that the completion of discovery and the development of a more complete record defeated application of [*17]  the coordinate jurisdiction rule in this case. Hence, this contention merits no relief.

Appellant next advances a claim asserting that genuine issues of fact surrounding Mr. Valentino’s execution of the liability waiver preclude summary judgment in favor of Appellee. In developing this contention, Appellant draws our attention to differences between the version of the liability waiver introduced in support of Appellee’s first motion for summary judgment and the version submitted in support of its second motion. Appellant’s Substituted Brief at 37-41. Appellant notes that the second version was two and one-half pages in length while the first version was only two pages. Appellant also notes that the second version bore the date “2011” while the event occurred in 2010. Lastly, the second version included the words “Yes, I agree to the above waivers” above the signature line while the first version did not.

There is ample support for the trial court’s finding that Mr. Valentino executed the liability waiver when he electronically registered for the Triathlon. See Trial Court Opinion, 8/14/14, at 4 (“In the second motion for summary judgment, it is undisputed that a waiver was among the [*18]  decedent’s possessions, prior to being discovered in the Schuykill River.”). The record shows that Appellee retained the services of ACTIVE Network (ACTIVE) to implement the online registration process for the Triathlon. ACTIVE implemented the required specifications for online registration, including guidelines for specific waiver and assumption of the risk language, supplied by Appellee and USA Triathlon (USAT), the national governing body of the sport of triathlon. USAT sanctioned the Triathlon because Appellee followed USAT registration guidelines.

Appellee also demonstrated that no one could participate in the Triathlon without registering online, a process that could not be completed without the execution of a liability waiver. It is not disputed that Mr. Valentino registered online by completing the required process. He paid his registration fee with a credit card issued in his name and for which he retained exclusive possession.

Appellee also offered the affidavit of Eric McCue, the general manager of ACTIVE, to explain why the appearance of the liability waiver varied between the submission of the first and second motions for summary judgment. According to Mr. McCue’s affidavit, [*19]  “ACTIVE’s computer system condenses older registration and waiver documents for storage purposes, making any printed version of the older retained registration and waiver documents appear smaller than when they were viewed online by the reader/registrant.” Appellee’s Motion for Summary Judgment Ex. L at ¶ 9, 8/5/13. Mr. McCue also stated that “the reader/registrant would view the online registration for the subject event exactly as it appears on Exhibit B [of Appellee’s August 5, 2013 motion for summary judgment] on his or her computer screen.” Id. at ¶ 10. Appellant offered no evidence to dispute Mr. McCue’s affidavit testimony.

Lastly, Appellee relied upon the deposition testimony of witnesses to demonstrate that Mr. Valentino executed the liability waiver during the electronic registration process. At her deposition, Appellant admitted she had no reason to believe that Mr. Valentino did not read and understand the liability waiver or that he did not sign it during the registration process. In addition, Appellee pointed to the deposition testimony of Andrea Pontani, Mr. Valentino’s friend. Ms. Pontani testified that Appellant and Mr. Valentino were aware of the liability waiver because [*20]  they spoke with her about it before the competition, stating that Mr. Valentino signed the form and presented it in order to obtain his competitor’s bib during the registration process on the day of the event. Based upon the forgoing, we agree with the trial court that Appellant presented no evidence raising a genuine issue of fact as to whether Mr. Valentino executed the liability waiver at issue in this case.

We turn next to Appellant’s position that, even if Mr. Valentino executed the liability waiver, the agreement is unenforceable with regard to claims asserting reckless or intentional conduct. Here, however, we have previously affirmed the trial court’s determination that Appellant did not state viable claims involving reckless or intentional conduct. See infra. As such, Appellant’s contention cannot serve as a basis for disturbing the trial court’s summary judgment order, which dismissed allegations of ordinary negligence comprising Appellant’s wrongful death and survival actions.6

6 Appellant does not challenge the substantive validity of the liability waiver as a bar to her claims of ordinary negligence. Consequently, we need not address the validity of the exculpatory provisions [*21]  in the context of this case.

Appellant forwards a claim that our decision in Pisano bars Appellee’s reliance on a liability waiver to defend wrongful death claims asserted by a non-signatory statutory claimant. See Appellant’s Substituted Brief at 45-47; see also Trial Court Opinion, 8/14/14, at 5. In Pisano, a nursing home resident signed a contract agreeing to submit all claims against the home to binding arbitration. When the resident died, the administrator of the resident’s estate asserted wrongful death claims against the home and the home invoked the arbitration clause. The trial court denied the home’s petition to compel arbitration. On appeal, this Court affirmed, concluding that the arbitration clause was not binding against wrongful death claimants who did not sign the agreement because they possessed a separate and distinct right of action. Pursuant to this holding, Appellant maintains that since she did not sign the liability waiver executed by her late husband, the contractual waiver cannot be asserted as a bar to her wrongful death claims. We disagree.

The statute authorizing wrongful death claims in Pennsylvania provides as follows:

§ 8301. Death action

(a)General rule.– An [*22]  action may be brought [for the benefit of the spouse, children or parents of the deceased], under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injured individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.

42 Pa.C.S.A. § 8301 (emphasis added) (sometimes referred to as “Wrongful Death Act”). Eight decades ago, our Supreme Court interpreted a prior, but similar, version of the statute. The Court made clear that the statute contemplated that a claimant’s recovery required a tortious act on the part of the defendant:

[W]e have held that  [HN14] a right to recover must exist in the party injured when he died in order to entitle[] those named in the act to sue. We have therefore held, in order that the death action impose no new and unjust burden on the defendant, that where the deceased would have been barred by contributory negligence, or by the statute of limitations, the parties suing for his death [*23]  are likewise barred. We have announced the principle that the statutory action is derivative because it has as its basis the same tortious act which would have supported the injured party’s own cause of action. Its derivation, however, is from the tortious act, and not from the person of the deceased, so that it comes to the parties named in the statute free from personal disabilities arising from the relationship of the injured party and tort-feasor.

Kaczorowski v. Kalkosinski, 321 Pa. 438, 184 A. 663, 664 (Pa. 1936) (internal citations omitted; emphasis added).

Our decision in Pisano limited a decedent’s authority to diminish or alter a non-signatory third-party claimant’s procedural election to pursue a claim in the forum of his or her choice. That decision, however, did not purport to undermine the fundamental principle that  [HN15] both an estate in a survival action, and a statutory claimant in a wrongful death action, shoulder the same burden of proving that tortious conduct on the part of the defendant caused the decedent’s death. Under Pisano,  [HN16] “wrongful death actions are derivative of decedents’ injuries but are not derivative of decedents’ rights.” Pisano, 77 A.3d at 659-660. Thus, while a third party’s wrongful death claim is not derivative of the decedent’s right of action, [*24]  a wrongful death claim still requires a tortious injury to succeed.

As suggested above,  [HN17] Pennsylvania case law has long held that a wrongful death claimant’s substantive right to recover is derivative of and dependent upon a tortious act that resulted in the decedent’s death. Our reasoning in Sunderland v. R.A. Barlow Homebuilders, 2002 PA Super 16, 791 A.2d 384 (Pa. Super. 2002), aff’d, 576 Pa. 22, 838 A.2d 662 (Pa. 2003) illustrates this point:

 [HN18] A wrongful death action is derivative of the injury which would have supported the decedent’s own cause of action and is dependent upon the decedent’s cause of action being viable at the time of death. [Moyer v. Rubright, 438 Pa. Super. 154, 651 A.2d 1139, 1143 (Pa. Super. 1994)].  [HN19] “As a general rule, no action for wrongful death can be maintained where the decedent, had he lived, could not himself have recovered for the injuries sustained.” Ingenito v. AC & S, Inc., 430 Pa. Super. 129, 633 A.2d 1172, 1176 (Pa. Super. 1993). Thus, although death is the necessary final event in a wrongful death claim, the cause of action is derivative of the underlying tortious acts that caused the fatal injury. Id.

Sunderland, 791 A.2d at 390-391 (emphasis added; parallel citations omitted).

Applying these settled principles in the present case, we conclude that  [HN20] a decedent may not compromise or diminish a wrongful death claimant’s right of action without consent. Nevertheless, a third-party wrongful death claimant is subject to substantive defenses supported by the decedent’s [*25]  actions or agreements where offered to relieve the defendant, either wholly or partially, from liability by showing that the defendant’s actions were not tortious. Here, Mr. Valentino, in registering online for the Triathlon, executed a detailed liability waiver under which he expressly assumed the risk of participating in the Triathlon and agreed to indemnify Appellee for liability stemming from his involvement in the event. The valid liability waiver executed by Mr. Valentino was available to support Appellee’s claim that Mr. Valentino knowingly and voluntarily assumed the risk of taking part in the competition and that, therefore, Appellee’s actions were not tortious. Since Appellant’s wrongful death claims required her to establish that Appellee’s conduct was tortious, the trial court did not err in granting summary judgment in favor of Appellee.

Appellant construes Pisano as holding that a wrongful death claimant’s rights are wholly separate, in all contexts and for all purposes, from not just the “rights” of a decedent but also the injuries sustained by a decedent. This reading of Pisano conflates the concept of a right of action under Pennsylvania’s Wrongful Death Act, referring [*26]  to the non-derivative right of a statutory claimant to seek compensation, with the principle that a claimant’s substantive right to obtain a recovery always remains, even in the wake of Pisano, “depend[ant] upon the occurrence of a tortious act.” Pisano, 77 A.3d at 654 (emphasis added). The issue in Pisano was whether a wrongful death claimant should be bound by an arbitration clause that he did not sign. This is a uniquely procedural issue that differs greatly from the enforcement of a valid liability waiver such as the one at issue in the present case. An arbitration clause dictates the forum where a litigant may present his claim. The terms of such a clause do not fix substantive legal standards by which we measure a right to recovery. Because the decedent signatory agreed to submit his claim to arbitration, his claim is subject to the compulsory provisions of the agreement.  [HN21] A non-signatory wrongful death claimant, on the other hand, cannot be compelled to present his claim to an arbitrator since he has not consented to arbitration and since he possesses an independent, non-derivative right to air his claim in the forum of his choice.

A liability waiver, however, operates quite differently from an arbitration clause. [*27]  By executing a liability waiver, the decedent signatory acknowledges and assumes identified risks and pledges that the defendant will not be held liable for resulting harms. If the decedent executes the waiver in a knowing, intelligent, and voluntary manner (as here), the waiver is deemed valid and it shifts the risk of loss away from the defendant and onto the decedent. In effect, an enforceable waiver under which the decedent assumes specified risks transforms the nature of the defendant’s conduct vis-à-vis the decedent from tortious to non-tortious. Since Pisano retains the requirement that the decedent’s death result from a tortious act, even non-signatory wrongful death claimants remain subject to the legal consequences of a valid liability waiver.

Appellant also overinflates the importance of the presence of a wrongful death claimant’s signature when evaluating the enforceability of a liability waiver. Under Pisano, a wrongful death claimant possesses an independent, non-derivative right of action that cannot be subject to compulsory arbitration in the absence of consent. Thus, to enforce an arbitration clause in the wrongful death context, the claimant’s signature is necessary [*28]  to demonstrate that she agreed to submit her claim to binding arbitration. The same is not true for a liability waiver, however. As explained above,  [HN22] a valid waiver signed only by the decedent transfers the risk of harm from the defendant to the decedent, effectively rendering the defendant’s conduct non-tortious. Since the wrongful death claimant’s substantive right of recovery presupposes tortious conduct on the part of the defendant, the claimant’s signature on the waiver is unnecessary.

Although we have uncovered no recent Pennsylvania case law that discusses the application of a valid waiver in a subsequent wrongful death action, several decisions from California are instructive on this point. These cases illustrate that,  [HN23] while a valid waiver does not bar a wrongful death claim, it can support a defense asserting that the alleged tortfeasor owed no duty to the decedent:

 [HN24] Although a wrongful death claim is an independent action, wrongful death plaintiffs may be bound by agreements entered into by decedent that limit the scope of the wrongful death action. Thus, for example, although an individual involved in a dangerous activity cannot by signing a release extinguish his heirs’ wrongful [*29]  death claim, the heirs will be bound by the decedent’s agreement to waive a defendant’s negligence and assume all risk.

Ruiz v. Podolsky, 50 Cal. 4th 838, 114 Cal. Rptr. 3d 263, 237 P.3d 584, 593 (Cal. 4th 2010). Hence,  [HN25]

where a decedent executes a valid waiver:

the express contractual assumption of the risk, combined with the express waiver of defendants’ negligence, constitute[s] a complete defense to the surviving heirs’ wrongful death action. This is different than holding th[at the wrongful death] action is barred.

Scroggs v. Coast Community College Dist., 193 Cal.App.3d 1399, 1402, 239 Cal. Rptr. 916 (Cal. App. 4th Dist. 1987); Eriksson v. Nunnink, 233 Cal. App. 4th 708, 183 Cal. Rptr. 3d 234 (Cal. App. 4th Dist. 2015); Madison v. Superior Court 203 Cal.App.3d 589, 250 Cal. Rptr. 299 (Cal. App. 2nd Dist. 1988).

These cases align with Pennsylvania law in a way that the decisional law of other states does not. For example, in Gershon v. Regency Diving Center, Inc., 368 N.J. Super. 237, 845 A.2d 720 (N.J. Super. 2004), the Appellate Division of the New Jersey Superior Court rejected the rationale in Madison and the other California cases, noting that the California approach was “internally inconsistent” since it allowed claimants to file a lawsuit that ultimately would not succeed. This reasoning constitutes a one-dimensional view of the issue. Take, for example, a case in which the decedent executes a valid liability waiver, as here. Thereafter, the defendant raises a successful assumption of the risk defense against the decedent’s estate in a survival action. Under the holding in Gershon, the defendant cannot raise the defense in a companion wrongful death action. [*30]  Gershon thus trades one “inconsistency” for another since it allows a wrongful death action to proceed in the face of a valid waiver that precludes a related survival action. Since the same underlying conduct by the defendant is the focus of scrutiny in this hypothetical situation, it is entirely consistent to reject a wrongful death claim where a valid waiver precludes recovery in a related survival action.7

7 This Court recently required consolidation of related wrongful death and survival actions since wrongful death beneficiaries cannot be compelled to arbitrate wrongful death claims. Taylor v. Extendicare Health Facilities, Inc., 2015 PA Super 64, 113 A.3d 317 (Pa. Super. 2015), appeal granted, 122 A.3d 1036 (Pa. 2015). However, our Supreme Court overruled our decision in Taylor, concluding that the Federal Arbitration Act, 9 U.S.C. § 2, preempted application of Pa.R.C.P. 213(e) (requiring consolidation of survival and wrongful death actions at trial) and required arbitration of survival claims where a valid and enforceable arbitration clause exists. Taylor v. Extendicare Health Facilities, Inc., 2016 Pa. LEXIS 2166, 2016 WL 5630669 (Pa. 2016).

Our conclusion that Appellee may rely on a liability waiver signed only by the decedent to defeat Appellant’s wrongful death claims is undiminished by Pennsylvania case law holding that a settlement and release agreement does not bind non-signatories. See, e.g., Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (Pa. 1989). In Buttermore [*31] , James Buttermore sustained injuries in an automobile accident. Eventually, he resolved his claims against the tortfeasor in exchange for the sum of $25,000.00 and executed a release and settlement agreement in which he agreed to release any and all persons from liability, whether known or unknown. Later, Buttermore and his wife initiated an action against Aliquippa Hospital and certain physicians claiming that treatment he received aggravated the injuries he sustained in the accident. The defendants moved for summary judgment on the strength of the release. Our Supreme Court held that the release barred Buttermore’s claims against all tortfeasors, including those who were unnamed. The Court further held, however, that Buttermore’s wife had an independent cause of action for loss of consortium, which was not barred by the release since she did not sign the agreement.

A pair of examples illustrates the distinction between the situation in Buttermore and the situation presently before us. In the first example, the driver of car A operates his vehicle on a public highway. He is injured after a rear-end collision caused by the driver of car B. Litigation ensues between the two drivers and, [*32]  eventually, the driver of car A resolves his claims against the driver of car B for the sum of $30,000.00. At that time, the driver of car A executes a release and settlement agreement, releasing all persons from liability — whether known or unknown — for claims stemming from injuries and losses he sustained in the accident. His spouse does not sign the release. As in Buttermore, the release signed by the driver of car A bars all claims he initiates in the future but does not bar loss of consortium claims or wrongful death claims (should he succumb to his injuries) brought by his spouse, who possesses independent causes of action. In this scenario, the execution of the release manifests the driver of car A’s agreement to forgo all future claims but does not establish his assumption of the risk of operating his vehicle. Nothing in the release suggests that the driver of car A intended to shift the risk of loss away from the driver of car B and onto himself. Indeed, the execution of the release after the injury-causing accident leaves no room for the inference that he assumed this risk of negligence on the part of the driver of car B. Since nothing in the release precludes a finding [*33]  that the driver of car B acted tortiously, the release has no preclusive effect on the spouse’s right to seek damages in the context of a subsequent loss of consortium or wrongful death action.

In the second example, the driver of car A decides to participate in a demolition derby. As a condition of entry, he voluntarily executes a liability waiver under which he assumes the risk of participation in the event and waives all potential claims against other participants and event organizers. Again, the spouse of the driver of car A does not sign the liability waiver. During the demolition derby, the driver of car A sustains injuries and eventually dies as a result of a collision with another participant. In this scenario, loss of consortium and wrongful death claims asserted by the spouse of the driver of car A are subject to the liability waiver. This is because the driver of car A expressly manifested his intent to assume the risk of participating in the demolition derby, thereby shifting the risk of loss or injury away from other participants and event organizers. Unlike the release and settlement agreement in the first example that said nothing about assumption of the risk or any other [*34]  substantive basis to oppose tort liability, the liability waiver in this hypothetical supports a complete bar to financial responsibility for injury and losses and bears directly on the formula by which we assess whether a defendant acted tortiously in causing damages. Because even non-signatory wrongful death claimants bear the burden of proving that tortious conduct caused the decedent’s death, their claims are subject to liability waivers under which the deceased assumed the risk of engaging in a particular activity.8 As the circumstances before us more closely reflect this second example, the instant appeal calls for application of the principles alluded to in prior Pennsylvania cases and specifically articulated in the California line of authority. See infra. Thus, we are not persuaded that Pennsylvania case law construing the applicable scope of release and settlement agreements undermines our conclusion that Appellant’s wrongful death claims are subject to the liability waiver signed by Mr. Valentino.

8  [HN26] Although strictly construed, Pennsylvania law recognizes the enforceability of valid liability waivers, particularly in cases where the injured party elects to engage in activities [*35]  that entail an obvious risk of injury or loss. See, e.g., Hinkal v. Pardoe, 2016 PA Super 11, 133 A.3d 738 (Pa. Super. 2016) (en banc) (gym membership), appeal denied, 2016 Pa. LEXIS 1407, 2016 WL 3910827 (Pa. 2016). We would substantially reduce the utility of liability waivers if we were to hold that they are enforceable only against signatories, but not against non-signatory wrongful death claimants. Moreover, it would be extremely impractical to expect defendants to acquire signatures from all such potential plaintiffs. Indeed, it should almost go without saying that event organizers and hosts of activities that entail a risk of injury would likely cease operations if valid liability waivers could not be enforced against non-signatory statutory claimants such as Appellant.

For related reasons, we conclude that the decision in Brown v. Moore, 247 F.2d 711 (3rd Cir. 1957), cert. denied, 355 U.S. 882, 78 S. Ct. 148, 2 L. Ed. 2d 112 (1957) is also unpersuasive. In that case, Brown, a neurotic, entered a sanitarium for treatment which included electrical shock therapy. While in the sanitarium, Brown fell down a flight of stairs. After the fall, sanitarium employees picked Brown up by his extremities, causing paralysis. Upon entry into the sanitarium, Brown and his wife signed a release relieving the sanitarium and its employees from liability for injuries resulting from his mental health [*36]  treatment, including electro-shock therapy or similar treatments. As Brown’s widow and the executrix of his estate, Brown’s wife brought claims under the Wrongful Death Act on behalf of herself and her three minor children, as well as a Survival Act claim. The court’s opinion in Brown suggested that the release was sufficient to alleviate the defendants’ liability under the Survival Act and to defeat Brown’s widow’s claims under the Wrongful Death Act since the decedent and Brown’s wife signed the agreement. Nevertheless, the court opined that Brown’s children could recover on their wrongful death claims since they were non-signatories. We find it significant, however, that immediately before reaching this conclusion, the court concluded that Brown’s treatment following his fall down the stairs was unrelated to his treatment for his mental health issues, which was the subject of his release. In essence, then, the court held that while Brown may have assumed the risk of electro-shock therapy or similar treatments, he did not assume the risk of faulty medical treatment for injuries sustained during his fall. Accordingly, Brown does little to support Appellant’s claim before us.9

9 As our [*37]  analysis suggests,  [HN27] courts must exercise great care and caution to differentiate between an agreement that addresses only the procedural rights of a signatory (i.e., an arbitration agreement) or a signatory’s right to pursue further claims (i.e., a release and settlement agreement) from an agreement that goes further and unambiguously manifests a signatory’s intent to assume the risk of involvement in a particular event or activity (i.e., a liability waiver). This is because the former binds only the parties to the agreement while the latter extends to non-signatory third-parties. We accord broader reach to liability waivers under which the signatory assumes a particular risk because, where valid, such agreements support a complete bar to tort liability and therefore form an important part of the assessment of whether tortious conduct brought about injury, loss, or death. A court’s examination of this issue necessarily will involve the nature and purpose of the agreement, as expressed in the exculpatory language of the instrument, together with the circumstances under which the parties entered the contract. The analysis should not be limited simply to the label applied to the agreement [*38]  and, occasionally, will ask whether the signatory expressly assumed the precise risk that resulted in his injury. In Brown, for example, we doubt whether the release should have been given preclusive effect at all since the precise injury sustained in that case fell outside the scope of the exculpatory waiver.

The learned Dissent rejects the conclusion that assumption of the risk and the liability waiver support the trial court’s entry of summary judgment in favor of Appellee. The Dissent instead argues that, “Pisano is clear that a wrongful death action is an independent cause of action, created by statute, and is not derivative of the decedent’s rights at the time of death.” Dissenting Opinion at 8. This position overlooks settled Supreme Court precedent and over eight decades of Pennsylvania case law holding that wrongful death actions are derivative of “the same tortious act which would have supported the injured party’s own cause of action.” Kaczorowski, 184 A. at 664 (noting that wrongful death action would be barred by affirmative defenses such as contributory negligence or statute of limitations); see also Sunderland, 791 A.2d at 390-391; Moyer, 651 A.2d at 1143; Ingenito, 633 A.2d at 1176. Not only does the Dissent ignore binding Pennsylvania precedent, the premise of the Dissent’s [*39]  conclusion is unavailing.

Citing Pisano, the Dissent asserts that Appellant is not “bound” by the liability waiver executed by Mr. Valentino and, therefore, the agreement does not bar her from bringing a wrongful death action. Respectfully, these contentions miss the point. First, Appellant filed a wrongful death action in the venue of her choosing and no one asserts that the liability waiver precluded her from doing so. Second, since it is undisputed that Mr. Valentino knowingly and voluntarily executed the liability waiver, the issue of whether Appellant was “bound” by the waiver agreement is irrelevant to whether Appellee was entitled to an order granting summary judgment as to the negligence claims asserted in Appellant’s wrongful death action. We explain.

The record undeniably contains a valid waiver agreement. As such, the agreement itself constitutes tangible and, indeed, overwhelming proof that Mr. Valentino intelligently and willingly assumed the risk of participating in the Triathlon. This is so regardless of whether Appellant was “bound” by the agreement. The law is clear that a wrongful death claimant’s recovery must derive from a tortious actious act. Sunderland, 791 A.2d at 390-391. As even the Dissent [*40]  concedes, “[a] wrongful death claimant [must] prove negligence.” Dissenting Opinion at 8, fn.6. The law is also clear that [HN28]  the doctrine of assumption of the risk is a function of the duty analysis required in any negligence action and that summary judgment may be entered where the record discloses an absence of general issues of material fact. Thompson v. Ginkel, 2014 PA Super 125, 95 A.3d 900, 906-907 (Pa. Super. 2014), appeal denied, 630 Pa. 745, 108 A.3d 36 (Pa. 2015). Since assumption of the risk serves as a complete bar to tort recovery, Pa.R.C.P. 1035.2(2) permitted Appellee to seek summary judgment based upon Mr. Valentino’s voluntary and knowing assumption of the hazards attendant to triathlon participation. See Staub v. Toy Factory, Inc., 2000 PA Super 87, 749 A.2d 522, 527 (Pa. Super. 2000).10

10 In Staub, this Court explained:

 [HN29] For summary judgment purposes, affirmative defenses are generally decided under Pa.R.Civ.P. 1035.2(1), where it is the moving party’s burden to establish the defense as a matter of law. Under [Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (Pa. 1993) and Hardy v. Southland Corp., 435 Pa. Super. 237, 645 A.2d 839 (Pa. Super. 1994), appeal denied, 539 Pa. 679, 652 A.2d 1324 (Pa. 1994)], however, assumption of risk is now considered part of a “no-duty” analysis. As such, the doctrine now falls under the second type of summary judgment motion, described in Pa.R.Civ.P. 1035.2(2). Under Rule 1035.2(2), a party may obtain summary judgment by pointing to the adverse party’s lack of evidence on an essential element of the claim. . . .  [HN30] One of the essential elements of a negligence claim is that [*41]  the defendant owes the plaintiff a duty of care. Under Rule 1035.2(2), the defendant’s method for pointing to a lack of evidence on the duty issue is to show that the plaintiff assumed the risk as a matter of law. This process will entail gathering and presenting evidence on the plaintiff’s behavior, and attempting to convince the court that the plaintiff knew the risk and proceeded to encounter it in a manner showing a willingness to accept the risk. Thus, for all practical purposes, the process for showing “no-duty” assumption of the risk under Rule 1035.2(2) is indistinguishable from showing assumption of the risk as an affirmative defense under Rule 1035.2(1).

Staub, 749 A.2d at 527. For purposes of proving negligence, the only legal duty referred to in this case is the one allegedly owed by Appellee to Mr. Valentino. The Dissent identifies no source and no proof of a separate and independent legal duty owed by Appellee to Appellant.

More broadly, we note that the Dissent places great weight on its contention that Appellant’s wrongful death action is not derivative of Mr. Valentino’s injuries. Notwithstanding, even a brief review of Appellant’s amended complaint and the submissions of the parties reveals that all of the allegations of negligence [*42]  underpinning Appellant’s wrongful death claims involve legal duties, alleged breaches, proximate causation, and harms that focus exclusively upon Mr. Valentino. Thus, in substantive terms, the conclusion that Appellant’s wrongful death claims are derivative of the injuries sustained by Mr. Valentino is inescapable.

In this case, Appellant does not dispute that the liability waiver constituted an express assumption of the risk by Mr. Valentino. This confirms that Appellee owed no legal duty to Mr. Valentino and, therefore, Appellee cannot be found to be negligent. It follows, then, that the waiver agreement not only defeated the negligence claims asserted in the context of Appellant’s survival action, but also the negligence claims asserted in the context of Appellant’s wrongful death action. Appellee’s right to summary judgment simply did not depend upon Appellant’s execution of the agreement.11

11 The Dissent also makes the point that wrongful death claims are intended to compensate for the loss of the decedent. Wrongful death claims, however, were not intended to place new and unjust burdens on defendants and compensation is due only when tortious conduct results in death. In the present [*43]  case, the trial court properly entered summary judgment because Appellant cannot demonstrate that Appellee was negligent, as Appellee owed no duty to Mr. Valentino. Thus, the goal of compensation does not support reversal of the trial court’s order. This holding does not “eviscerate” but wholly aligns with our Wrongful Death Statute, which imposes liability only where the defendant’s tortious conduct causes death. Compare Dissenting Opinion at 5.

We turn now to Appellant’s claim that the trial court erred in granting summary judgment because she offered the testimony of a qualified expert to address lingering questions of Appellee’s duty, breach of duty, and injury causation. Here, Appellant relies on Mark Mico, an experienced triathlete, race director, and race management consultant. Mr. Mico concluded that Appellee’s negligence caused Mr. Valentino to drown in the Schuylkill River. Among other things, Mr. Mico stated in his report that Appellee failed to provide a sufficient number of lifeguards and allowed too many swimmers into the water during wave launches. He also stated that contestants were not permitted to wear buoyant wetsuits and that Appellee failed to provide to lifeguards [*44]  appropriate instruction and training in open water safety. Mr. Mico opined that swimmers were given black swimming caps that offered poor visibility in open water. Finally, Mr. Mico stated that most lifeguards were familiar only with conditions in swimming pools, not open water.

In this case, the trial court granted summary judgment in favor of Appellee based upon the liability waiver executed by Mr. Valentino. The trial court did not consider the contents of Mr. Mico’s report and did not discuss the issue in its Rule 1925(a) opinion. Nonetheless, since our scope of review is plenary, we may and must examine Mr. Mico’s report to determine if it precludes the entry of summary judgment based on the liability waiver. We conclude that it does not.

Assuming for purposes of argument that Mr. Mico’s expert report establishes a prima facie case of negligence, the liability waiver operated to release Appellee from liability for negligence, and Appellant does not challenge the validity of the release on that basis. Furthermore, Mr. Mico’s conclusory opinion that Appellee’s “conduct was to such a degree of carelessness that it amounts to reckless disregard for the safety of its participants[,]” does not permit [*45]  Appellant to avoid the liability waiver. Report of Michael Mico, 6/30/13, at unnumbered 7. As we previously determined, the trial court properly held that the facts alleged in the amended complaint did not support claims that Appellee acted outrageously, recklessly, or intentionally, and dismissed such claims with prejudice. Expert opinion to the contrary cannot alter that legal assessment. In particular, Mr. Mico’s report did not identify specific actions or omissions that rose to the level of reckless disregard.  [HN31] Reckless disregard requires a different state of mind and a substantially greater knowledge of impending risks than ordinary negligence, not simply a higher degree of carelessness, a distinction the expert failed to appreciate.12 See Tayar v. Camelback Ski Corp., 616 Pa. 385, 47 A.3d 1190, 1200 (Pa. 2012) ( [HN32] “Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.”) Consequently, nothing in Mr. Mico’s expert report alters our determination that the liability waiver is dispositive of Appellant’s wrongful death and survival claims.

12 Section 500 of the Restatement (Second) of Torts defines reckless disregard of safety as follows:

 [HN33] The actor’s [*46]  conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Restatement (Second) of Torts § 500.

In sum,  [HN34] Pennsylvania law distinguishes a wrongful death claimant’s non-derivative right to bring an action from her derivative right to recover damages based upon a defendant’s tortious conduct. This distinction allows a defendant, like Appellee, to assert an express, contractual assumption of risk based upon a valid liability waiver against a wrongful death claimant, even where the claimant does not sign the liability waiver agreement. Applying these settled principles to the case at hand, the order granting summary judgment in favor of Appellee fully comports with prevailing Pennsylvania law. Thus, we affirm the court’s summary judgment order dismissing Appellant’s wrongful death and survival claims.

Order affirmed.

Gantman, P.J., Bender, P.J.E., Bowes, Shogan [*47]  and Ott, JJ., join this Opinion.

Ford Elliott, P.J.E., files a Concurring and Dissenting Opinion in which Panella and Lazarus, JJ. join.

Judgment Entered.

Date: 11/15/2016

Because I conclude that Derek Valentino’s release agreement did not bind appellant and did not preclude her from bringing a wrongful death action, I must respectfully dissent from that part of the Majority’s Opinion. I join the Opinion in all other respects.

While the Majority attempts to distinguish Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (Pa. 1989), and Brown v. Moore, 247 F.2d 711 (3rd Cir. 1957), cert. denied, 355 U.S. 882, 78 S. Ct. 148, 2 L. Ed. 2d 112 (1957), I find those cases to be instructive. In Buttermore, James Buttermore was involved in an automobile accident, sustaining injuries. Buttermore, 561 A.2d at 734. He signed a release in settlement of his claim against the tortfeasor for the sum of $25,000, agreeing to release from liability any and all persons, known or unknown. Id. Subsequently, Buttermore and his wife instituted suit against Aliquippa Hospital and the treating physicians alleging that the treatment he received aggravated the injuries he sustained in the accident, worsening his condition. Id. at 734-735. The defendants moved for summary judgment on the basis of Buttermore’s release. Id. at 735.

After first holding that the release applied to all tortfeasors, including the defendants, [*48]  whether specifically named or not, the court in Buttermore turned to the matter of Buttermore’s wife’s loss of consortium claim: “That is not to say, however, that parties may bargain away the rights of others not a party to their agreement. That question rises here because a spouse not a party to the agreement seeks to sue in her own right for loss of consortium.” Id. at 735. The Buttermore court held that the wife had an independent cause of action for loss of consortium regardless of her husband’s release and settlement agreement: “The question is, does the wife, not a signatory to the agreement, have an independent right to sue for the injury done her. We answer that she does.” Id. at 736. See also Pisano v. Extendicare Homes, Inc., 2013 PA Super 232, 77 A.3d 651, 658 (Pa.Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (Pa. 2014), cert. denied, 134 S.Ct. 2890,     U.S.    , 189 L. Ed. 2d 838 (2014), citing Pennsylvania Railroad Co. v. Henderson, 51 Pa. 315, 317, 23 Legal Int. 284, 13 Pitts. Leg. J. 561 (1866) (“This suit is brought by the widow, and her right of action cannot be affected by any discharge or release of [husband] in his lifetime.”).

Similarly, in Brown v. Moore, the plaintiff, the widow and executrix of George Brown, brought a cause of action under the Wrongful Death Act for the benefit of herself and her three minor children, as well as a Survival Act claim. Id. at 714. Brown, a neurotic, was admitted to a sanitarium for treatment including electrical shock therapy, [*49]  following which he fell down a flight of stairs. Id. at 715. After the fall, Brown was picked up by his extremities, with his head hanging down, resulting in paralysis. Id. Brown had signed a release agreeing to release the sanitarium and its employees from liability for any injury resulting from his treatment as a neurotic while at the sanitarium, including electro-shock therapy or treatment of a similar nature. Id. at 722. After concluding that Brown’s treatment following his fall down the stairs was unrelated to his treatment as a neurotic by electro-shock therapy or other similar therapeutic means, the Brown court stated,

[S]ince this case may well come before the reviewing Court we point out that even if the release were deemed sufficient to relieve the defendants of liability under the Pennsylvania Survival Act is [sic] could scarcely relieve them of liability under the Pennsylvania Wrongful Death Act for that Act provides benefits not only for the widow of a deceased person but also for his children. Even assuming that the release was effective as to the plaintiff, who executed it as did Brown, nonetheless Brown’s children would be entitled to a recovery.

Id. (emphasis added).1

1 Brown was disapproved of by [*50]  Grbac v. Reading Fair Co., 688 F.2d 215 (3rd Cir. 1982). However, Grbac was criticized by this court in Pisano:

In Grbac, the court of appeals held that a liability release executed by decedent was binding on the widow’s wrongful death claim. Id. at 217-218. Erroneously following the Pennsylvania Supreme Court’s holding in [Hill v. Pennsylvania Railroad Company, 178 Pa. 223, 35 A. 997, 39 Week. Notes Cas. 221 (Pa. 1896)], the court of appeals misinterpreted Pennsylvania law in holding that a “wrongful death action is purely derivative” in Pennsylvania. Id. at 217. The Grbac Court cites no further cases in support of its holding, and no binding Pennsylvania authority exists with a similar holding. In fact, the limited authority on this subject indicates the opposite conclusion of Grbac.

Pisano, 77 A.3d at 658.

Relying on California law, including Madison v. Superior Court, 203 Cal.App.3d 589, 250 Cal. Rptr. 299 (Cal.App. 2 Dist. 1988), the Majority concludes that even if appellant can bring the wrongful death action, appellee had no duty to the decedent because of his complete waiver. According to the Majority, the decedent agreed to waive liability and assume all risks inherent to the dangerous activity of sprint triathlon; therefore, appellee owed the decedent no duty to protect him from injury. Therefore, even assuming appellant can sue for wrongful death, she cannot possibly recover where appellee has a complete defense based on the decedent’s assumption of the risk. [*51]

I view the Madison line of cases as creating a distinction without a difference, i.e., a wrongful death claimant can bring suit but will inevitably lose on summary judgment because of the decedent’s waiver of liability, to which the wrongful death claimant was not a party. Such a holding would effectively eviscerate the Pennsylvania wrongful death statute which creates an independent and distinct cause of action, not derivative of the decedent’s rights at time of death.2 I believe the better approach is outlined by the New Jersey Superior Court in Gershon v. Regency Diving Center, Inc., 368 N.J. Super. 237, 845 A.2d 720 (N.J.Super. 2004), which explicitly rejected Madison and its progeny, aptly describing Madison’s holding as “paradoxical” and “internally inconsistent.” Id. at 725.3

2 The Pisano court explained that a wrongful death action is “derivative” of the original tort in the same way that a loss of consortium claim is derivative, in that both arise from an injury to another person. Pisano, 77 A.3d at 659. However, unlike, e.g., a stockholder’s derivative lawsuit or a subrogation action, loss of consortium and wrongful death claims are separate and distinct causes of action. Id. at 660.

3 “Although we acknowledge that the pronouncements of sister states are not binding authority on our courts, such decisions may be [*52]  considered as persuasive authority.” Shedden v. Anadarko E&P Co., L.P., 2014 PA Super 53, 88 A.3d 228, 233 n.3 (Pa.Super. 2014), affirmed, 136 A.3d 485 (Pa. 2016).

In Gershon, the decedent was a scuba diver and signed up for advanced diving training. Id. at 723. As a condition of his participation, he executed a release agreement. Id. The decedent expressly waived liability, including for wrongful death, and assumed all risk. Id. The lower court held that while the exculpatory release signed by the decedent barred any survivorship claim which could have been asserted by his estate, it did not preclude an independent wrongful death action where the decedent’s heirs had not signed the agreement. Id. at 724. Relying on Madison, supra, the defendant, Regency Diving Center, argued that the release operated as a complete bar to all claims. Id.

On appeal, the Superior Court of New Jersey, Appellate Division, affirmed, holding that the decedent did not have the legal authority to bargain away his heirs’ statutory right to bring a wrongful death action:

The release agreement here was signed by decedent and defendants. It can therefore only bind these parties. On its face the release only manifests decedent’s intention to waive defendants’ duty of care pertaining to his personal safety. In order for such a waiver to also apply to decedent’s [*53]  heirs, the agreement must manifest the unequivocal intention of such heirs to be so bound. The public policy underpinning the Wrongful Death Act requires that we narrowly construe any attempt to contractually limit or, as in this case, outright preclude recovery. Decedent’s unilateral decision to contractually waive his right of recovery does not preclude his heirs, who were not parties to the agreement and received no benefit in exchange for such a waiver, from instituting and prosecuting a wrongful death action.

Id. at 727.

The Gershon court also rejected the Madison line of cases as against the public interest4 intended to be protected by the Wrongful Death Act:

[T]he intended beneficiaries of the Act are deprived of their statutorily authorized remedy merely to provide defendants with an environment from which to operate their business, apparently free from the risk of litigation. Such a prospect would directly undermine the remedial purpose of the Act. Stated differently, even if decedent had the legal authority to bargain away the statutory right of his potential heirs, society’s interest in assuring that a decedent’s dependents may seek economic compensation in a wrongful death action outweighs [*54]  decedent’s freedom to contract.

Id. at 728.5

4 As in New Jersey, in Pennsylvania, exculpatory agreements are not favored by the law and must not contravene public policy. Id. at 726-727; Tayar v. Camelback Ski Corp., Inc., 616 Pa. 385, 47 A.3d 1190 (Pa. 2012).

5 As in New Jersey, in Pennsylvania, the purpose of the wrongful death statute is to create a right of recovery for economic loss caused by the death of a family member, including children who were dependent upon the decedent for economic support. See Pisano, 77 A.3d at 658-659 (“In contrast [to a survival action], wrongful death is not the deceased’s cause of action. An action for wrongful death may be brought only by specified relatives of the decedent to recover damages in their own behalf, and not as beneficiaries of the estate. . . . This action is designed only to deal with the economic effect of the decedent’s death upon the specified family members.”) (citations omitted); see also Amato v. Bell & Gossett, 2015 PA Super 83, 116 A.3d 607, 625 (Pa.Super. 2015), appeal granted in part on other grounds, 130 A.3d 1283 (Pa. 2016) (“The purpose of the Wrongful Death Statute . . . is to compensate the decedent’s survivors for the pecuniary losses they have sustained as a result of the decedent’s death. This includes the value of the services the victim would have rendered to his family if he had lived. A wrongful death action does not compensate the decedent; [*55]  it compensates the survivors for damages which they have sustained as a result of the decedent’s death.” (citations omitted)).

The Majority contends that allowing third-party claims including wrongful death where the decedent expressly assumed the risk of injury would expose insurers to increased liability, and that it is impractical to expect defendants to obtain releases from all potential plaintiffs. The court in Gershon addressed those concerns as follows:

We recognize that our decision today may prevent insurance carriers from obtaining complete releases from all possible wrongful death claims, except perhaps by the inclusion in any such agreement of all persons who subsequently are determined to be wrongful death beneficiaries under N.J.S.A. 2A:31-4. The policy favoring settlement and finality of claims, cannot defeat statutory rights created for the protection of survivors of one wrongfully killed.

Id. at 728-729, quoting Alfone v. Sarno, 87 N.J. 99, 432 A.2d 857 (N.J. 1981) (citations omitted).6

6 Presumably, there are still triathlons, road races, and similar events held in the State of New Jersey, despite the decision in Gershon. A wrongful death claimant would still have to prove negligence. I would also note that these liability waivers are contracts of adhesion, [*56]  and a participant cannot compete without executing the waiver and agreeing to assume all risk.

Following Pisano, I conclude that Derek Valentino’s release agreement did not bind appellant and did not preclude her from bringing a wrongful death action. Pisano is clear that a wrongful death action is an independent cause of action, created by statute, and is not derivative of the decedent’s rights at time of death. Furthermore, I reject the Majority’s position that the decedent’s waiver of liability and assumption of the risk can be used as a complete defense to appellant’s claims. The release agreement was only between the decedent and appellee and has no effect on the decedent’s non-signatory heirs including appellant.

For these reasons, I would remand the matter for further proceedings, including for the trial court to consider the issue of Mr. Mico’s expert report. As such, I am compelled to respectfully dissent.

Panella and Lazarus, JJ. join this Concurring and Dissenting Opinion.

 


Barnes and a. v. New Hampshire Karting Association, Inc, 128 N.H. 102; 509 A.2d 151; 1986 N.H. LEXIS 254

Barnes & a. v. New Hampshire Karting Association, Inc, 128 N.H. 102; 509 A.2d 151; 1986 N.H. LEXIS 254

John E. Barnes & a. v. New Hampshire Karting Association, Inc. & a.

No. 85-204

Supreme Court of New Hampshire

128 N.H. 102; 509 A.2d 151; 1986 N.H. LEXIS 254

May 12, 1986

COUNSEL: David J. KillKelley, of Laconia, by brief and orally, for the plaintiffs.

Sulloway Hollis & Soden, of Concord (Edward M. Kaplan and Robert J. Lanney on the brief, and Mr. Kaplan orally), for the defendants.

JUDGES: King, C.J.  All concurred.

OPINION BY: KING

OPINION

[*104]   [**152]  The plaintiffs, John E. and Virginia A. Barnes, sued the New Hampshire Karting Association (NHKA), David E. Whitesell, Midway Raceway, Inc. d/b/a Bryar Motorsport Park (Bryar), the World Karting Association (WKA) and International Insurance Company (International) for damages arising from injuries sustained by John Barnes (Barnes, or the plaintiff) in an Enduro kart collision at Bryar in 1981.  Defendants Whitesell, NHKA, WKA and Bryar moved for summary judgment, claiming that the release executed by Barnes barred him from seeking recovery.  Following a hearing, the Master (Louie C. Elliott, Jr., Esq.) recommended that the defendants’ motion for summary judgment be granted as to all counts asserted by John Barnes against Whitesell, NHKA, WKA and Bryar.  The master recommended denial of the motion for summary judgment as to the [***2]  claims asserted by Virginia Barnes and ruled that the release did not bar claims against International.  The Superior Court (DiClerico, J.) approved the master’s recommendations.  We affirm.

On August 29, 1981, before entering the pit area at the Bryar Motorsport Park, John Barnes signed a “pit pass” containing the release at issue.  The pass comprised three parts; the participant was given the top portion, which stated “THE HOLDER ACKNOWLEDGES SIGNING WAIVER & RELEASE FROM LIABILITY BEFORE ENTERING TRACK AREA.” The middle section, which each participant was required to sign in order to receive a number for the race, provided:

“RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT

IN CONSIDERATION of being permitted to enter for any purpose any RESTRICTED AREA (herein defined as including but not limited to, the racing surface, pit areas, infield, burn out area, approach area, shut down area, and all walkways, concessions and other areas appurtenant to  [*105]  any area where any activity related to the event shall take place), or being permitted to compete, officiate, observe, work for, or for any purpose participate in any way in the event, EACH OF THE UNDERSIGNED [***3]  . . .

  1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT [**153] TO SUE . . . from all liability to the undersigned . . . for any and all loss or damage, and any claim or demands therefor on account of injury to the person or property or resulting in death of the undersigned, whether caused by the negligence of the releases [sic] or otherwise while the undersigned is in or upon the restricted area, and/or competing, officiating in, observing, working for, or for any purpose participating in the event;

. . .

  1. HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE due to the negligence of releasees or otherwise while in or upon the restricted area and/or while competing, officiating, observing, or working for or for any purpose participating in the event.

EACH OF THE UNDERSIGNED expressly acknowledges and agrees that the activities of the event are very dangerous and involve the risk of serious injury and/or death and/or property damage.  . . .

THE UNDERSIGNED HAS READ AND VOLUNTARILY SIGNS THE RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT, and further agrees that no oral representations, statements of inducements [sic]  [***4]  apart from the foregoing written agreement have been made.”

The master found that Barnes did not read the release portion before signing the pit pass on this occasion or on the previous occasions he had raced at the track. Nonetheless, Barnes admitted that he had read the top portion and understood that the document he was signing was “[s]ome sort of waiver or release.”

Barnes proceeded to take a practice run.  As he rounded a blind turn, his kart collided with a disabled kart on the track. No flagman was present to warn drivers of hazards out of view beyond that turn.  John Barnes and his wife, Virginia, sued the defendants for injuries and loss of consortium, respectively, alleging liability for ordinary and gross negligence.

[*106]  The question presented for review is whether the plaintiff’s causes of action are barred by the release and waiver of liability and indemnity agreement he signed.  Barnes contends that the release does not bar his claims because it violates public policy, is ambiguous, and does not apply to risks not inherent in the sport, which were not within the contemplation of the parties.  He further argues that the release does not cover gross negligence,  [***5]  and that it is void because it involves an illegal tying arrangement.

[HN1] Exculpatory agreements call into conflict two tenets of the law.  First, a party should be liable for the consequences of the negligent breach of a duty owed another.  As this court stated in a recent case involving an amusement ride accident, the owner of a place of public amusement “must exercise that degree of care which, under the same or similar circumstances, would be exercised by an ordinarily careful or prudent individual.” Siciliano v. Capitol City Shows, Inc., 124 N.H. 719, 730, 475 A.2d 19, 25 (1984). Failure to do so will result in liability for injuries proximately caused by the breach of duty.

Contraposed against this basic rule of tort law is the principle that,  [HN2] as a matter of efficiency and freedom of choice, parties should be able to contract freely about their affairs.  ABA Special Committee on the Tort Liability System, Towards a Jurisprudence of Injury: The Continuing Creation of a System of Substantive Justice in American Tort Law § 5-27 (Nov. 1984); Morrow v. Auto Championship Racing Ass’n, Inc., 8 Ill. App. 3d 682, 685, 291 N.E.2d 30, 32 (1972). Under this rule, parties may bargain [***6]  for various levels of risk and benefit as they see fit.  Thus, a plaintiff may agree in advance that the defendant has no legal duty toward him and thereby assume the risk of injury arising from the defendant’s conduct.  See W. Keeton, D. Dobbs, R. Keeton, D. Owen,  [**154]  Prosser and Keeton on the Law of Torts § 68, at 480-81 (5th ed. 1984) (hereinafter cited as Prosser & Keeton).

In New Hampshire, exculpatory contracts are generally prohibited.   [HN3] A defendant seeking to avoid liability must show that the exculpatory agreement does not contravene public policy; i.e., that no special relationship existed between the parties and that there was no other disparity in bargaining power. Where the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service, the defendant cannot by contract rid itself of its obligation of reasonable care.  Restatement (Second) of Torts § 496B, comment g (1965); Restatement of Contracts § 575 (1932); see Wessman v. Railroad, 84 N.H. 475, 152 A. 476 (1930).

[*107]  Courts have refused to uphold such agreements because one party is at an obvious disadvantage in bargaining power. Prosser [***7]  & Keeton, supra § 68, at 482.

“The disparity in bargaining power may arise from the defendant’s monopoly of a particular field of service, from the generality of use of contract clauses insisting upon assumption of risk by all those engaged in such a field, so that the plaintiff has no alternative possibility of obtaining the service without the clause; or it may arise from the exigencies of the needs of the plaintiff himself, which leave him no reasonable alternative to the acceptance of the offered terms.”

Restatement (Second) of Torts § 496B, comment j (1965).  Cf.  Cailler v. Humble Oil & Refining Co., 117 N.H. 915, 919, 379 A.2d 1253, 1256 (1977). Where there is a disparity in bargaining power, the plaintiff may not be deemed to have freely chosen to enter into the contract; accordingly, courts refuse to enforce the agreement.  See Shaer Shoe Corporation v. Granite State Alarm, Inc., 110 N.H. 132, 135, 262 A.2d 285, 287 (1970).

[HN4] Once an exculpatory agreement is found unobjectionable as a matter of public policy, it will be upheld only if it appears that the plaintiff understood the import of the agreement or that a reasonable person in his position [***8]  would have known of the exculpatory provision.  Furthermore, the plaintiff’s claims must have been within the contemplation of the parties at the time of the execution of the agreement.  Arnold v. Shawano County Agr. Society, 106 Wis. 2d 464, 470, 317 N.W.2d 161, 164 (1982), aff’d, 111 Wis. 2d 203, 330 N.W.2d 773 (1983). The parties need not, however, have contemplated the precise occurrence that resulted in the plaintiff’s injuries.  They may adopt language to cover a broad range of accidents, as they did in this case by specifying injuries involving negligence on the part of the defendants.

Nonetheless, since the terms of the contract are strictly construed against the defendant, the contract must clearly state that the defendant is not responsible for the consequences of his negligence.  Prosser & Keeton, supra § 68, at 483-84.  As long as the language of the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence, the agreement will be upheld.  Cf.  Commercial Union Assurance Co. v. Brown Co., 120 N.H. 620, 623, 419 A.2d 1111, 1113 (1980).

[*108]  As a preliminary [***9]  matter, we note that the plaintiff’s failure to read the entire release does not preclude enforcement of the agreement.  Barnes testified that he was in a line of people waiting to pay money and obtain numbers for the race and that the workers wanted to “get [them] on [their] way.” There was no evidence, however, that Barnes was denied the opportunity to read the body of the release.  “[H]aving failed to avail himself of that opportunity, yet gaining the admission to which his signature was a condition precedent, he cannot now complain that he had no notice of the import of the paper . . . he signed.” Lee v. Allied Sports Associates, Inc., 349 Mass. 544, 550, 209 N.E.2d 329, 332 (1965).

[**155]  With these principles in mind, we now consider whether the release bars the plaintiff’s claims in this case.  The first question is whether the release is contrary to public policy. The defendants do not fall within any of the commonly-recognized classes of persons charged with a duty of public service. The record indicates that the 1981 Enduro kart races at Bryar were organized by the NHKA, which is associated with the WKA and which manages its races in accordance with WKA [***10]  rules and regulations.  Although the defendants serve a segment of the public, we cannot say that Enduro kart racing is affected with a public interest.  Provision of racing facilities is not a service of great importance to the public, nor is racing a matter of practical necessity.  Winterstein v. Wilcom, 16 Md. App. 130, 138, 293 A.2d 821, 825 (1972).

Moreover, there was no substantial disparity in bargaining power among the parties, despite the fact that Barnes was required to sign the release in order to use the racetrack. The plaintiff was under no physical or economic compulsion to sign the release.  Since the defendants’ service is not an essential one, the defendants had no advantage of bargaining strength over Barnes or others who sought to participate in Enduro kart racing. Cailler, 117 N.H. at 919, 379 A.2d at 1256; Schlessman v. Henson, 83 Ill. 2d 82, 86-87, 413 N.E.2d 1252, 1254 (1980). Barnes wished to compete and voluntarily agreed not to hold others liable for his injuries.  Hence, we conclude that the release was not barred by public policy and may be upheld.

The plaintiff cites a number of cases from other jurisdictions that hold on public policy grounds [***11]  that an exculpatory agreement does not release defendants from liability for gross negligence. These cases are inapposite because New Hampshire law does not distinguish causes of action based on ordinary and gross negligence. “[T]he doctrine of definitive degrees of negligence is not recognized as a part of our common law.  . . .” Lee v. Chamberlin, 84 N.H. 182, 188,  [*109]  148 A. 466, 469 (1929). The plaintiff advances no reasons for abandoning this rule and we decline to create an exception to allow him to pursue his claims of gross negligence.

We now examine the language of the release to determine the extent of its coverage.  Barnes contends that the accident did not occur in a “restricted area” because, although he was on the racing surface, the area did not become restricted until numbers were given and racing had begun, and he was merely taking a practice lap at the time of the accident.  In interpreting this contract, we will give language used by the parties its common meaning, Murphy v. Doll-Mar, Inc., 120 N.H. 610, 611-12, 419 A.2d 1106, 1108 (1980), and will give the contract itself the meaning that would be attached to it by a reasonable person.  [***12]  Kilroe v. Troast, 117 N.H. 598, 601, 376 A.2d 131, 133 (1977).

The first paragraph of the release states that the release is given “IN CONSIDERATION of being permitted to enter for any purpose any RESTRICTED AREA . . . or being permitted to compete . . . or for any purpose participate in any way in the event . . . .” The agreement defines “restricted area” as including “the racing surface, pit areas, infield, burn out area, approach area, shut down area, and all walkways, concessions and other areas appurtenant to any area where any activity related to the event shall take place.” Finally, the agreement states that the defendants are released “from all liability to the undersigned . . . whether caused by the negligence of the releases [sic] or otherwise while the undersigned is in or upon the restricted area, and/or competing . . . or for any purpose participating in the event.”

We find that participation in practice laps on the racing surface comes within the terms of the release.  The restricted areas are defined in terms of physical spaces, not in terms of function, and the reference to “enter[ing] for any purpose” contemplates that the racing surface is a restricted area [***13]   [**156]  during practice runs and during the actual race.  Although the plaintiff testified that he had practiced on occasion without signing a release, he signed the release prior to taking a practice lap on the day in question.  One can contemplate that racers are exposed to a variety of hazards while in the racing arena regardless of whether the actual race is taking place.  We believe that the practice run taken by Barnes in preparation for the race later that day may reasonably be construed as part of “participat[ion] in the event.” We therefore uphold the master’s conclusion that the language of the agreement was not ambiguous and that the release applied to practice laps.

[*110]  Barnes contends that the release is unenforceable because it involves an illegal tying arrangement. He asserts that, in violation of RSA 417:4, XIII, the pit pass and certain insurance coverage were offered at a single price, without an option to take one “product” and not the other.   [HN5] RSA 417:4, XIII provides that it is an unfair method of competition and an unfair and deceptive act and practice in the business of insurance to:

“Arrang[e] or participat[e] in any plan to offer [***14]  or effect in this state as an inducement to the purchase or rental by the public of any property or services, any insurance for which there is no separate charge to the insured.  . . .”

Although it appears that no separate charge was made for the insurance, we find that the insurance was not offered as an inducement to the purchase of the pit pass or the use of the Bryar Motorsport Park.

Affirmed.

 


185 Mile Running Race release was clear and under Washington, law was sufficient to beat a Public Policy & ambiguous argument by plaintiff

Decision clearly sets forth the requirements for the plaintiff to prove her claims which she failed to do.

Johnson et al., v. Spokane to Sandpoint, LLC, et al., 176 Wn. App. 453; 309 P.3d 528; 2013 Wash. App. LEXIS 1696

State: Washington, Court of Appeals of Washington, Division Three

Plaintiff: Robin Johnson and Craig Johnson

Defendant: Spokane to Sandpoint, LLC, et al.

Plaintiff Claims: Negligence & Gross Negligence

Defendant Defenses: Release

Holding: for the defendant

Year: 2013

The plaintiff, an attorney signed up for the Spokane to Sandpoint race. The race is a team race run over two days and nights. The race is 185 miles long and an open course, meaning there is traffic on the course.

Spokane to Sandpoint promotes a long-distance relay race from the Spokane area to Sandpoint, Idaho, involving teams running a 185-mile course over two days, day and night. The course is open, meaning it is not closed to public traffic.

The racers sign up online and sign an electronic release. The racers also receive a race handbook. The handbook explains the race and includes sections on crossing roads, highways and train tracks.

The plaintiff was crossing a highway, and she was hit by a car. The driver of the car stated the plaintiff walked out in front of her without looking. The plaintiff settled with the driver before this appeal.

As Ms. Johnson was crossing U.S. Route 2, Madilyn Young was driving about 63 miles per hour southbound in the outside lane on U.S. Route 2, approaching the Colbert Road intersection. Ac-cording to Ms. Young’s statement to the police, she saw Ms. Johnson crossing the northbound lanes of U.S. Route 2 and saw her continue into the southbound lanes without looking for cars. Ms. Young was unable to stop in time to avoid a collision. Ms. Johnson suffered severe injuries.

The defendant filed a motion for summary judgment, which was granted and this appeal followed.

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

The appellate court first looked at the requirements for the plaintiff to survive and proceed to trial.

To prevail on a negligence claim against Spokane to Sandpoint, the Johnsons must establish Spokane to Sandpoint owed them a duty. Whether such a duty exists is a question of law. Id. The parties may, subject to certain exceptions, expressly agree in advance that one party is under no obligation of care to the other, and shall not be held liable for ordinary negligence.

The court then looked at the requirements for releases to be valid under Washington’s law. (Of note, the court calls the exculpatory clause a waiver clause. However, the court refers to the agreement as a release.)

The function of a waiver provision is “to deny an injured party the right to recover damages from the person negligently causing the injury.” The general rule in Washington is that a waiver provision is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous.

Under Washington’s law, releases are valid, unless they violate public policy. There are six different factors identified as attributable to public policy in Washington.

Six factors are considered in determining whether exculpatory agreements violate public policy. The court considers whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or agents.

The court then went through all six factors and eliminated them all in one paragraph.

First, 185-mile relay races are not regulated; second, Spokane to Sandpoint is not performing an important public service such as a school; third, not all members of the public participate in relay races, unlike schools; fourth, Spokane to Sandpoint had no control over how Ms. Johnson ran or when she decided to cross U.S. Route 2; fifth, there was no inequality of bargaining since Ms. Johnson could have easily chosen not to participate and could have selected a different event; and sixth, while Spokane to Sandpoint set up the course, it did not control in what manner Ms. Johnson ran the race.

Generally, Washington law looks at whether the issues that identify a public policy issue are those that affect the majority of the public in Washington. The court also found that other Washington decisions have found that recreational activities were not a public interest.

The second issue was the plaintiff’s claim the defendant was grossly negligent. Like most states, a release in Washington will not stop a claim for gross negligence. Gross negligence is greater than ordinary negligence and is care appreciably less than care required in an ordinary negligence claim.

“Gross negligence” is “negligence substantially and appreciably greater than ordinary negligence,” i.e., “care substantially or appreciably less than the quantum of care inhering in ordinary negligence.” (“gross negligence” is “the failure to exercise slight care”). A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply “substantial evidence” that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. To meet this burden of proof on summary judgment, the plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises to the level of gross negligence.

The court then went through the facts and found that nothing required the defendant to do more than what the defendant did. Consequently, since there was no duty to do more, there was no breach of a duty, let alone acts, which were substantially below the duty.

The final argument the plaintiff argued was the release was ambiguous and not conspicuous. Here again, Washington’s law set forth the requirements for ambiguous and conspicuous quite clearly.

Factors in deciding whether a waiver and release provision is conspicuous include whether the waiver is set apart or hidden within other provisions, whether the heading is clear, whether the waiver is set off in capital letters or in bold type, whether there is a signature line below the waiver provision, what the language says above the signature line, and whether it is clear that the signature is related to the waiver.

The requirements basically require the release to be seen by the signor and not hidden. The exculpatory provisions must be evident, conspicuous and not hidden. The language must stand out so it is easily recognized with capital letters and/or bold type and there must be a signature line below the exculpatory provisions so that you can see your signature is related to the exculpatory provisions.

In this case, the release provisions were found not to be ambiguous. Additionally, the plaintiff admitted in her deposition that she understood from a legal perspective that the release would release her from claiming damages for any injuries.

The appellate court agreed with the trial court and affirmed the decision.

So Now What?

This decision is refreshing because it clearly sets out the requirements needed to prove a release valid and invalid. The definition of gross negligence also easily defined to that you can understand your duties and a substantial breach of your duties leading to a gross negligence claim.

Also of note, which the court pointed out was the information provided to the plaintiff and other racers in the racer handbook. Although not an express assumption of risk agreement, the handbook was still proof, the plaintiff assumed the risk, even though that issue was not argued. The risks of the race were set forth as well as the steps taken by the defendant to protect the runners in the handbook.

Again, the more information you provide to your clients, the more information you give them the better your chances of winning if your release fails.

What do you think? Leave a comment.

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Johnson et al., v. Spokane to Sandpoint, LLC, et al., 176 Wn. App. 453; 309 P.3d 528; 2013 Wash. App. LEXIS 1696

Johnson et al., v. Spokane to Sandpoint, LLC, et al., 176 Wn. App. 453; 309 P.3d 528; 2013 Wash. App. LEXIS 1696

Robin Johnson et al., Appellants, v. Spokane to Sandpoint, LLC, et al., Respondents.

No. 31042-6-III

COURT OF APPEALS OF WASHINGTON, DIVISION THREE

July 23, 2013, Filed

NOTICE: Order Granting Motion to Publish September 10, 2013.

SUBSEQUENT HISTORY: Reported at Johnson v. Spokane to Sandpoint, LLC, 175 Wn. App. 1054, 2013 Wash. App. LEXIS 1835 (2013)

Ordered published by Johnson v. Spokane to Sandpoint, LLC, 2013 Wash. App. LEXIS 2129 (Wash. Ct. App., Sept. 10, 2013)

PRIOR HISTORY: [***1]

Appeal from Spokane Superior Court. Docket No: 10-2-05387-0. Date filed: 07/09/2012. Judge signing: Honorable Gregory D Sypolt.

SUMMARY:

WASHINGTON OFFICIAL REPORTS SUMMARY Nature of Action: A participant in a long-distance relay race who was struck by a moving vehicle sought damages for personal injury from the race promoter.

Nature of Action: A participant in a long-distance relay race who was struck by a moving vehicle sought damages for personal injury from the race promoter.

Superior Court: The Superior Court for Spokane County, No. 10-2-05387-0, Gregory D. Sypolt, J., on July 9, 2012, entered a summary judgment in favor of the race promoter.

Court of Appeals: Holding that a preinjury release and waiver signed by the runner precluded her recovering for ordinary negligence, the court affirms the judgment.

HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES

[1] Negligence — Duty — Necessity. The threshold question in a negligence action is whether the defendant owed a duty of care to the plaintiff.

[2] Negligence — Duty — Question of Law or Fact — In General. For purposes of a negligence cause of action, the existence of a duty of care is a question of law.

[3] Torts — Limitation of Liability — Validity — In General. Subject to certain exceptions, parties may expressly agree in advance that one is under no obligation of care to the other and shall not be liable for ordinary negligence.

[4] Torts — Limitation of Liability — Purpose. The function of a contractual waiver of negligence liability is to deny an injured party the right to recover damages from the person negligently causing the injury.

[5] Torts — Limitation of Liability — Validity — Test. A contractual waiver of negligence liability is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for the protection of others, or (3) it is inconspicuous.

[6] Torts — Limitation of Liability — Validity — Public Policy — Factors. In determining whether an agreement exculpating a party from liability for its future conduct violates public policy, a court will consider whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or its agents.

[7] Torts — Limitation of Liability — Validity — Public Policy — Public Interest — Recreational Activities. For purposes of determining the validity of a liability release clause under a public policy analysis, Washington courts do not favor finding a public interest in adult recreational activities.

[8] Torts — Limitation of Liability — Applicability — Gross Negligence. A preinjury waiver and release will not exculpate a defendant from liability for damages resulting from gross negligence. “Gross negligence” is negligence substantially and appreciably greater than ordinary negligence, i.e., care substantially or appreciably less than the quantum of care inhering in ordinary negligence, or a failure to exercise slight care. A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply substantial evidence that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. To meet this burden of proof on summary judgment, a plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises to the level of gross negligence.

[9] Negligence — Proof — Higher Standard — Summary Judgment — Prima Facie Case — Necessity. When the standard of proof in a negligence action is higher than ordinary negligence, in order to avoid an adverse summary judgment, a plaintiff must show that it can support its claim with prima facie proof supporting the higher level of proof.

[10] Torts — Limitation of Liability — Validity — Conspicuous Nature — Factors. The conspicuousness of a contractual liability waiver or release provision is determined by considering such factors as whether the provision is set apart or hidden within other provisions, whether the provision heading is clear, whether the waiver is set off in capital letters or in bold type, whether there is a signature line below the waiver provision, what the language says above the signature line, and whether it is clear that the signature is related to the waiver. Brown, J., delivered the opinion for a unanimous court.

COUNSEL: Martin A. Peltram, for appellants.

Thomas C. Stratton (of Rockey Stratton PS), for respondents.

JUDGES: Authored by Stephen M. Brown. Concurring: Laurel H. Siddoway, Kevin M. Korsmo.

OPINION BY: Stephen M. Brown

OPINION

[*455] [**530] ¶1 Brown, J. — Robin Johnson and Craig Johnson appeal the dismissal of their personal injury suit against Spokane to Sandpoint LLC after the trial court ruled the preinjury release and waiver Ms. Johnson signed precluded recovery. The Johnsons contend the release is unenforceable because it is ambiguous, offends public policy, and because Spokane to Sandpoint was grossly negligent. We disagree and affirm.

FACTS

¶2 Spokane to Sandpoint promotes a long-distance relay race from the Spokane area to Sandpoint, Idaho, involving teams running a 185-mile course over two days, day and [**531] night. The course is open, meaning it is not closed to public traffic.

¶3 When registering on line, the runners must electronically acknowledge a release of liability and waiver, which states:

I understand that by registering I have accepted and agreed to the waiver [***2] and release agreement(s) presented to me during registration and that these documents include a release of liability and waiver of legal rights and deprive me of the right to sue certain parties. By agreeing electronically, I have acknowledged that I have both read and understood any waiver and release agreement(s) presented to me as part of the registration process and accept the inherent dangers and risks which may or may not be readily foreseeable, including without limitation personal injury, property damage or death that arise from participation in the event.

[*456] Clerk’s Papers (CP) at 246. Ms. Johnson, an attorney, registered on line for the 2010 Spokane to Sandpoint race and acknowledged the above waiver, plus she agreed to “waive and release Spokane to Sandpointfrom any and all claims or liability of any kind arising out of my participation in this event, even though that liability may arise out negligence or carelessness on the part of persons on this waiver.” CP at 246. Ms. Johnson agreed she read the agreement carefully and understood the terms and she signed the agreement, “FREELY AND VOLUNTARILY, WITHOUT ANY INDUCEMENT, ASSURANCE OR GUARANTEE” and that her signature was [***3] “TO SERVE AS CONFIRMATION OF MY COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE TERMS, CONDITIONS, AND PROVISIONS OF THIS AGREEMENT.” CP at 248.

¶4 Spokane to Sandpoint provided a race handbook to Ms. Johnson, explaining all facets of the race, including crossing public highways and train tracks. The fourth leg of the race crossed U.S. Route 2 at its intersection with Colbert Road. At that location, U.S. Route 2 is a divided highway that runs north and south. It has two lanes in each direction, separated by a median strip. A sign was posted on Colbert Road telling the runners “caution crossing highway.” CP at 128. Signs were posted along the race route informing drivers that runners were running along the race route roads.

¶5 As Ms. Johnson was crossing U.S. Route 2, Madilyn Young was driving about 63 miles per hour southbound in the outside lane on U.S. Route 2, approaching the Colbert Road intersection. According to Ms. Young’s statement to the police, she saw Ms. Johnson crossing the northbound lanes of U.S. Route 2 and saw her continue into the southbound lanes without looking for cars. Ms. Young was unable to stop in time to avoid a collision. Ms. Johnson suffered severe injuries.

¶6 The Johnsons sued Spokane [***4] to Sandpoint, Ms. Young, and Ms. Young’s parents. The Johnsons dismissed their [*457] claims against Ms. Young and her parents following a settlement.

¶7 During Ms. Johnson’s deposition, counsel for Spokane to Sandpoint asked her if she understood that the release she signed “would … release the entities for any personal injury that might occur to you during the activity?” CP at 138. Ms. Johnson replied, “Yes, I understand that from a legal perspective completely.” CP at 139. When questioned about the on line registration process, counsel asked:

Q. Do you recall whether you clicked yes to the waiver language at all on the registration process?

A. On the registration process I assume I must have clicked because all that information is there and I did it. Nobody else did it for me.

CP at 156.

¶8 Spokane to Sandpoint requested summary judgment dismissal, arguing the preinjury waiver and release agreed to by Ms. Johnson was conspicuous and not against public policy and the Johnsons lacked the evidence of gross negligence necessary to overcome the release. The trial court agreed and dismissed the Johnsons’ complaint.

ANALYSIS

¶9 The issue is whether the trial court erred in summarily dismissing the [**532] Johnsons’ [***5] negligence complaint. The Johnsons contend the release and waiver signed by Ms. Johnson prior to her injury was invalid and unenforceable because it was ambiguous and against public policy, and because Spokane to Sandpoint was grossly negligent.

¶10 [HN1] We review summary judgment de novo and engage in the same inquiry as the trial court. Heath v. Uraga, 106 Wn. App. 506, 512, 24 P.3d 413 (2001). [HN2] Summary judgment is appropriate if, in view of all the evidence, reasonable persons could reach only one conclusion. Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992). Where different [*458] competing inferences may be drawn from the evidence, the issue must be resolved by the trier of fact. Kuyper v. Dep’t of Wildlife, 79 Wn. App. 732, 739, 904 P.2d 793 (1995).

[1-3] ¶11 [HN3] To prevail on a negligence claim against Spokane to Sandpoint, the Johnsons must establish Spokane to Sandpoint owed them a duty. Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334, 339, 35 P.3d 383 (2001) (citing Tincani v. Inland Empire Zoological Soc’y, 124 Wn.2d 121, 128, 875 P.2d 621 (1994)). Whether such a duty exists is a question of law. Id. The parties may, subject to certain exceptions, expressly agree in advance that one [***6] party is under no obligation of care to the other, and shall not be held liable for ordinary negligence. Chauvlier, 109 Wn. App. at 339.

[4, 5] ¶12 [HN4] The function of a waiver provision is “to deny an injured party the right to recover damages from the person negligently causing the injury.” Scott v. Pac. W. Mountain Resort, 119 Wn.2d 484, 491, 834 P.2d 6 (1992). The general rule in Washington is that a waiver provision is enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous. Stokes v. Bally’s Pacwest, Inc., 113 Wn. App. 442, 445, 54 P.3d 161 (2002).

[6] ¶13 [HN5] In Washington, contracts releasing liability for negligence are valid unless a public interest is involved. Hewitt v. Miller, 11 Wn. App. 72, 521 P.2d 244 (1974). [HN6] Six factors are considered in determining whether exculpatory agreements violate public policy. The court considers whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members [***7] of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established [*459] standards; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees, or agents. Wagenblast v. Odessa Sch. Dist. 105-157-166J, 110 Wn.2d 845, 851-55, 758 P.2d 968 (1988) (citing Tunkl v. Regents of Univ. of Cal., 60 Cal. 2d 92, 98-101, 383 P.2d 441, 32 Cal. Rptr. 33 (1963)). The Johnsons fail to establish all six factors.

¶14 First, 185-mile relay races are not regulated; [***8] second, Spokane to Sandpoint is not performing an important public service such as a school; third, not all members of the public participate in relay races, unlike schools; fourth, Spokane to Sandpoint had no control over how Ms. Johnson ran or when she decided to cross U.S. Route 2; fifth, there was no inequality of bargaining since Ms. Johnson could have easily chosen not to participate and could have selected a different event; and sixth, while Spokane to Sandpoint set up the course, it did not control in what manner Ms. Johnson ran the race.

[7] ¶15 [HN7] Washington courts have not favored finding a public interest in adult recreational activities. As noted in Hewitt, 11 Wn. App. [**533] at 74, “[e]xtended discussion is not required to conclude that instruction in scuba diving does not involve a public duty.” Similarly, “[a]lthough a popular sport in Washington, mountaineering, like scuba diving, does not involve public interest.” Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 574, 636 P.2d 492 (1981). Washington courts have come to the same conclusion regarding [*460] tobogganing and demolition car racing. Broderson v. Rainer Nat’l Park Co., 187 Wash. 399, 406, 60 P.2d 234 (1936), overruled in part by [***9] Baker v. City of Seattle, 79 Wn.2d 198, 484 P.2d 405 (1971); Conradt v. Four Star Promotions, Inc., 45 Wn. App. 847, 853, 728 P.2d 617 (1986).

[8] ¶16 [HN8] A preinjury waiver and release will not exculpate a defendant from liability for damages resulting from gross negligence. Vodopest v. MacGregor, 128 Wn.2d 840, 853, 913 P.2d 779 (1996). “Gross negligence” is “negligence substantially and appreciably greater than ordinary negligence,” i.e., “care substantially or appreciably less than the quantum of care inhering in ordinary negligence.” Nist v. Tudor, 67 Wn.2d 322, 331, 407 P.2d 798 (1965); see 6 Washington Practice: Washington Pattern Jury Instructions: Civil 10.07 (6th ed. 2012) (“gross negligence” is “the failure to exercise slight care”). A plaintiff seeking to overcome an exculpatory clause by proving gross negligence must supply “substantial evidence” that the defendant’s act or omission represented care appreciably less than the care inherent in ordinary negligence. Boyce v. West, 71 Wn. App. 657, 665, 862 P.2d 592 (1993). To meet this burden of proof on summary judgment, the plaintiff must offer something more substantial than mere argument that the defendant’s breach of care rises [***10] to the level of gross negligence. CR 56(e); Boyce, 71 Wn. App. at 666.

¶17 Spokane to Sandpoint marked the roadways to warn both drivers and runners of danger and provided a handbook to each runner advising about crossing busy roadways and highways. Nothing in this record establishes any duty to do more.

¶18 Our case is somewhat like Conradt, where Mr. Conradt was hurt in an auto race. 45 Wn. App. at 848. He signed a release before being told of a change in the race direction. Id. Mr. Conradt argued the risk had been materially altered by that change after he signed the release. Id. at 850. He explained he could not corner as well and he had not understood the additional risk. Id. The race promoter [*461] requested summary judgment based on the release. Id. at 848. The trial court dismissed Mr. Conradt’s complaint, finding the release was valid and the promoter’s action did not amount to gross negligence. Id. at 852. The Conradt court affirmed, holding the promoter’s “conduct was not so substantially and appreciably substandard that it rendered the release invalid.” Id.

[9] ¶19 Similarly, the Johnsons fail to show Spokane to Sandpoint committed gross negligence by failing to exercise slight care. See Woody v. Stapp, 146 Wn. App. 16, 22, 189 P.3d 807 (2008) [***11] (When a standard of proof is higher than ordinary negligence, the nonmoving parties must show that they can support their claim with prima facie proof supporting the higher level of proof.). Spokane to Sandpoint’s conduct does not reach gross negligence under the circumstances presented here.

[10] ¶20 Finally, the Johnsons argue the release was ambiguous and not conspicuous. Several Washington courts have analyzed waiver provisions to determine whether the language was conspicuous. [HN9] Factors in deciding whether a waiver and release provision is conspicuous include whether the waiver is set apart or hidden within other provisions, whether the heading is clear, whether the waiver is set off in capital letters or in bold type, whether there is a signature line below the waiver provision, what the language says above the signature line, and whether it is clear that the signature is related to the waiver. See Baker, 79 Wn.2d at 202; McCorkle v. Hall, 56 Wn. App. 80, 83, 782 P.2d 574 (1989); Chauvlier, 109 Wn. App. at 342; Stokes, 113 Wn. App. at 448.

[**534] ¶21 The release executed by Ms. Johnson on line clearly sets apart the release language in either italicized letters or in all capital letters or both. The [***12] document was conspicuous with a header stating, “WAIVER AND RELEASE OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT.” CP at 246. The waiver repeatedly warned Ms. Johnson that she was giving up her legal rights by [*462] signing the waiver, with this clearly indicated above the signature line. Although the Johnsons argue the waiver was ambiguous and, therefore, inconspicuous, Ms. Johnson (an attorney) acknowledged in her deposition that from a “legal perspective” she understood the release she signed “would … release the entities for any personal injury that might occur … during the activity.” CP at 138-39. Thus, no genuine issues of material fact remain regarding ambiguity or conspicuousness.

¶22 Given our analysis, we hold reasonable minds can reach but one conclusion; the preinjury release and waiver signed by Ms. Johnson precludes her from claiming an ordinary negligence duty by Spokane to Sandpoint, thus preventing her from seeking liability damages for her injuries. The trial court correctly concluded likewise in summarily dismissing the Johnsons’ complaint.

¶23 Affirmed. [***13]

Korsmo, C.J., and Siddoway, J., concur.