New York court shreds Tough Mudder online release and arbitration clause because the reader could assent to the release without reading the release.

The clauses in the release were not clearly identified and could be avoided by plaintiff. Release was found to be void because if violated New York General Obligations Law § 5-326

Scotti v Tough Mudder Inc., 63 Misc. 3d 843, 97 N.Y.S.3d 825, 2019 N.Y. Misc. LEXIS 1525, 2019 NY Slip Op 29098, 2019 WL 1511142

State: New York, Supreme Court of New York, Kings County

Plaintiff: Richard E. Scotti et al. (Richard E. Scotti and Joseph Russo)

Defendant: Tough Mudder Incorporated et al. (Tough Mudder Incorporated and Tough Mudder Event Production Incorporated)

Plaintiff Claims: Negligence

Defendant Defenses: Arbitration Clause & Release

Holding: for the Plaintiffs

Year: 2019

Summary

Tough Mudder has been having a tough time in court. This was another court that found several ways to void the release. Tough Mudder was attempting to compel arbitration; however, the arbitration clause in the release did not meet the legal requirements of New York Law. The release itself failed because if violated New York General Obligations Law § 5-326 which voids releases for recreation.

Facts

This personal injury action stems from an accident which occurred on July 23, 2016, when the plaintiffs Richard E. Scotti and Joseph Russo participated in the “Tough Mudder,” a physically challenging obstacle course event (hereinafter the TM event), which took place at 1303 Round Swamp Road, Old Bethpage, New York. Defendants Tough Mudder Incorporated and Tough Mudder Event Production Incorporated (collectively, Tough Mudder) are the business entities that organized the TM event. Plaintiffs commenced the within action on or about November 17, 2017, against Tough Mudder alleging that they each sustained injuries as a result of defendants’ negligent operation of an activity at the event, referred to as the “salmon ladder.” Tough Mudder joined issue on or about December 20, 2017, with the service of a verified answer. In their answer, Tough Mudder denied all material allegations and asserted various affirmative defenses, including that the plaintiffs’ action is barred by the participation/registration agreement, which included an arbitration clause.

Tough Mudder now moves, pursuant to CPLR 7501 and 7503, to compel arbitration, arguing that the plaintiffs are barred from pursuing the instant action in this court because they each waived the right to sue by virtue of agreeing to arbitrate any “disputes, controversies, or claims” arising out of their participation in the TM event. Tough Mudder claims that the plaintiffs each entered into an agreement to arbitrate all claims related to their participation in the TM event when they completed an online Internet registration form. In support of this contention, Tough Mudder has submitted the sworn affidavit of Jenna Best, the manager of customer relations for Tough Mudder Incorporated. Best avers that she is fully familiar with the TM event online registration process as it existed in 2016 when the plaintiffs registered for the TM event at issue. Tough Mudder has submitted copies of the online registration forms that the plaintiffs allegedly completed for the TM event (Cash affirmation, exhibit D). Best states that, during the online registration process, the plaintiffs were required to scroll down to a section containing the “Participant Waiver and Course Rules” (hereinafter PWCR), a document version of which has been submitted herein She contends that the full text of the PWCR was contained in a box on the screen, which could be read by scrolling down in the text box. Best contends that the initial visible content of the scrollable box, which preceded the full PWCR document, which could be read in its entirety by scrolling down…

Below the box containing the scrollable PWCR was another box next to the statement: “I agree to the above waiver.” Best avers that it was necessary for the plaintiffs, or any other registrant, to click on the box to indicate his or her consent to the PWCR in order for the registrant to complete his or her registration for the TM event. According to Best, the Internet registration form cannot proceed to the payment page, and registration cannot be completed, until the registrant checks the box indicating his or her consent to the PWCR She further avers that both plaintiffs did in fact click on the box indicating their consent to the PWCR, as otherwise they would not have been able to participate in the TM event. Based upon the foregoing, Tough Mudder contends that the plaintiffs agreed to the terms of the online waiver, which included the arbitration clause, and, therefore, are barred from pursuing the instant action.

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

The court looked at the plaintiff’s arguments first.

In opposition, plaintiffs argue that the arbitration provision at issue is unenforceable because Tough Mudder has failed to establish that they actually agreed to it. In this regard, plaintiffs point out that the webpage where the PWCR was located contained a text box that did not show the entire document. In order to read the full PWCR, including the arbitration provision, plaintiffs contend it would have been necessary to scroll down through many screens of text using the arrows on the right-hand side of the text box. The PWCR fills seven single-spaced pages of text.

On top of that, the court stated the evidence presented by the defendant Tough Mudder was not sufficient to prove that either plaintiff checked the box or agreed to the terms of the contract.

Plaintiffs further argue that Tough Mudder has failed to proffer any evidence that either plaintiff actually signed/checked the consent box, or any evidence identifying the computers or electronic devices from which their respective registrations were completed.

The burden was on Tough Mudder to prove the plaintiffs signed the agreement which contained the arbitration clause.

It is well settled that “[a] party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties’ clear, explicit and unequivocal agreement to arbitrate” When one party seeks to compel the other to arbitrate any disputes between them, the court must first determine whether the parties made a valid arbitration agreement. The party seeking arbitration bears the burden of establishing that an agreement to arbitrate exists

To prove the existence of the contract and the agreement to the arbitration clause the courts look for evidence that the website user had actual or constructive knowledge of clauses in the contract.

The question of whether there is agreement to accept the terms of an online contract turns on the particular facts and circumstances. Courts generally look for evidence that a website user had actual or constructive notice of the terms by using the website. Where the person’s alleged consent is solely online, courts seek to determine whether a reasonably prudent person would be put on notice of the provision in the contract, and whether the terms of the agreement were reasonably communicated to the user. In Specht v Netscape Communications Corp, the court emphasized that “[r]easonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility”

The seven-page agreement had no headings, no italics, no bold print, nothing to indicate the agreement covered more issues than were identified in the heading. The heading stated:

“ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND INDEMNITY AGREEMENT “PARTICIPANTS: READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS.”

No where in the heading was a mention of a mandatory arbitration clause. (Ambush by small print was eliminated by the courts in the 70’s, this lawsuit was in 2019; someone should have realized that by now.)

The court the defined the agreement as one of four types of agreements found online “the four “general types of online consumer contracts [are identified as] (a) browsewrap; (b) clickwrap; (c) scrollwrap; and (d) sign-in-wrap.”

Based on the evidence presented by the defendants the court found the agreement was a “clickwrap” agreement.

Here, the PWCR at issue appears to be a click-wrap agreement as identified in Berkson in that the clickable box is located directly below the scrollable text box that allegedly contained the full text of the agreement. Only by scrolling down in the text box would the user see all of the terms of the PWCR, including the arbitration clause at issue.

The court then held that you could agree to the agreement without scrolling through the agreement; therefore, you could sign the agreement without knowing what was in the agreement.

However, the user could proceed to complete the registration process without necessarily scrolling down through the text box to view the full document, thereby rendering it a click-wrap agreement.

The plaintiff could be bound by a clickwrap agreement, but only if they were given sufficient opportunity to read the agreement and agree to it. There must also be a way to decline a click-wrap agreement.

A party may be bound to a click-wrap agreement by clicking a button declaring assent, so long as the party is given a “sufficient opportunity to read the . . . agreement, and assents thereto after being provided with an unambiguous method of accepting or declining the offer.”

Then the court closed the door on the defendants attempt to compel arbitration.

…[a] court cannot presume that a person who clicks on a box that appears on a . . . screen has notice of all contents not only of that page but of other content that requires further action (scrolling, following a link, etc.). The presentation of the online agreement matters: Whether there was notice of the existence of additional contract terms presented on a webpage depends heavily on whether the design and content of that webpage rendered the existence of terms reasonably conspicuous. Clarity and conspicuousness of arbitration terms are important in securing informed assent.” (Internal quotation marks and citations omitted.)

Understand, the court did not say the contract was invalid; the court was only looking at the issue of the arbitration clause. Under New York law for the arbitration clause to be valid, the plaintiff had to “had actual or constructive notice of the terms….” Since there was no notice of arbitration in the heading, and you could agree to the agreement without reading it, the agreement failed the heightened requirements to prove an arbitration clause existed between the parties.

Thus, on a motion to compel arbitration, a valid agreement to arbitrate exists where the notice of the arbitration provision was reasonably conspicuous, and manifestation of assent is unambiguous as a matter of law. Therefore, the issue herein is whether Tough Mudder’s website registration screen put a reasonably prudent user on inquiry notice of the relevant terms of the PWCR, particularly the arbitration clause at issue.

Then the court jumped on the issue that the evidence in front of the court did not prove their argument. Black-and-white copies were provided to the court rather than color copies. The font size was small and barely legible.

In addition, the court notes that the purported copies of the plaintiffs’ respective online registration forms (screenshots) submitted by Tough Mudder are black and white copies of poor quality, the text of which is in an extremely small font size and is barely legible. Tough Mudder has not proffered any color copies of any screenshots depicting its online registration process. In addition, the full text of the PWCR, as provided by Tough Mudder, is not a screenshot but a black and white document, consisting of seven pages of single-spaced language, all in the same font and size, with no underlined, hyperlinked or bolded terms.

The court then attacked how the document would have been presented online from the evidence in front of it.

In order to view the “Mediation and Arbitration” clause, the plaintiffs, by using the arrows inside the text box, needed to scroll down significantly beyond what is initially visible, to page four of the seven-page single-spaced PWCR document. The court additionally notes that, as with the entire document, the arbitration provision is neither underlined, bolded nor hyperlinked. Further, since this court has only been provided with a black and white document, not screenshots, it is unable to discern how the subject arbitration clause actually appeared to the user. Indeed, “[i]n the context of web-based contracts, [courts] look to the design and content of the relevant interface to determine if the contract terms were presented to the offeree in a way that would put her [or him] on inquiry notice of such terms

It is laughable that in 2019 you read a case where the court complains about the type being too small to read.

The court found that based on the evidence in front of it, there was not an arbitration clause between the parties.

The court then looked at the release.

New York General Obligations Law § 5-32 voids releases for recreation activities where a fee is paid.

That statute protects consumers from the effect of form releases printed on membership applications and similar documents when such releases are offered in connection with the use of a “place of amusement or recreation” for which a fee is paid

The court found New York General Obligations Law § 5-32 voided the release.

The terms of this statute apply to the plaintiffs herein, who paid a fee to use Tough Mudder’s obstacle course, which, contrary to Tough Mudder’s assertion, is a place of recreation. Indeed, the nature of the TM event as described by Tough Mudder—a rigorous, athletic competition requiring proper training—is comparable to the other activities, such as horseback riding, auto racing, cycling and skiing, which have been held to be covered by General Obligations Law § 5-326.

The final issue was the agreement had a severability clause. This is a clause that states if a portion of the contract is found unenforceable or void by the court it does not void the entire document. Only the portions the court finds void, are severed from the document, and the document without those clauses can be used as evidence in court.

However, as Tough Mudder correctly argues, the unenforceable provisions of the PWCR do not nullify the entire agreement. Where an agreement consists partially of an unlawful objective, the “court may sever the illegal aspects . . . and enforce the legal ones, so long as the illegal aspects are incidental to the legal aspects and are not the main objective of the agreement.

Which is exactly what the court did.

Here, the waiver of liability provision in the PWCR releasing Tough Mudder from liability, as well as the arbitration clause, are severable from the remainder of the PWCR agreement on the ground that the unenforceable provisions are incidental to the legal aspects and not the main objective of the agreement. Further, the severability provision in the PWCR reflects the intent of the parties that the legal provisions of the agreement be severed from any provisions determined to be void and unenforceable.

So, hopefully the seven-page document had language that could be used to prove assumption of the risk by the defendants.

So Now What?

On paper, this release might have survived. However, there are more issues with online releases. This is the second case where the court found the proof offered by the defense to prove the release was signed was found to be lacking because of poor copies of the website. That is just stupid. With color printers now days, computers and monitors that can be brought into court or linked to in a document you should be able to have anyone see what the document actually looked and how the software performed.

When you have several different issues in a contract, it is common to identify the new issues with a heading or bold type. In this case not only where there are new issues in the release besides release language there was an arbitration agreement. New York, as most states, have specific language in how an arbitration agreement should be written. This release failed that test.

The arbitration agreement was an attempt to lose the value of the entire release because releases for recreation where a person pays money to recreation are void. New York General Obligations Law § 5-32

§ 5-326.  Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.

The big issue the court seemed to be pushing was the game of hide and seek that Tough Mudder plays both with its courses and with the release. Contestants never know what they will encounter when competing in a Tough Mudder event. Consequently, you eliminate a lot of the defense of assumption of the risk. You can’t assume a risk you don’t know about.

Tough Mudder then tried that game with its release (or did not have an attorney write its release) and tried to slide the arbitration clause past the participants. It failed because the court held it must meet New York law and be written and visible in a way that the signor understands they are signing an arbitration agreement. That is a bigger burden then just signing a release.

What do you think? Leave a comment.

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Under California law, increasing the risk or changing the inherent risk of a sport or race eliminates the defense of assumption of the risk. Defendant found grossly negligent in its course design.

Wheel chair racer able to recover from the race organizer when he rode off the course after relying on the map and virtual tour the course director had created.

Blanchette v. Competitor Group, Inc., 2019 Cal. App. Unpub. LEXIS 7714, 2019 WL 6167131

State: California: California Court of Appeals, Fourth District, First Division

Plaintiff: Craig Blanchette

Defendant: Competitor Group, Inc

Plaintiff Claims:

Defendant Defenses:

Holding: For the Plaintiff

Year: 2019

Summary

A wheel chair racer was injured when the course was changed after the wheelchair racer had reviewed the map and the virtual tour of the course. Because the defendant had substantially increased the risk to the racers by changing the course, the defense of assumption of the risk was not available to the defendant.

Facts

Plaintiff Craig Blanchette (Plaintiff), then an elite wheelchair racer, competed in the 2014 San Diego Rock ‘n’ Roll Marathon (Marathon), which was owned and operated by defendant Competitor Group, Inc. (Defendant). During the race, Plaintiff was injured as he attempted a 90 degree left-hand turn, could not complete the turn, went through the orange traffic cones that marked the course boundary, and crashed into a car stopped at a traffic light in a lane outside the course.

Following a jury trial on one cause of action for gross negligence, the court entered a judgment in favor of Plaintiff and against Defendant in the amount of $3.2 million.

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

The defendant argued at the appellate court that the plaintiff failed to establish gross negligence and that the defendant did not unreasonably increase the risk to the plaintiff. If the plaintiff did not unreasonably increase the risk to the plaintiff, then the plaintiff assumed the risk and could not recover for his injuries.

Under these standards, as we will explain, substantial evidence supports the jury’s findings both that Defendant was grossly negligent (i.e., Plaintiff proved Defendant’s extreme departure from the ordinary standard of care) and that Plaintiff did not assume the risk of the injury he suffered (i.e., Defendant failed to prove that it did not unreasonably increase the risks to Plaintiff over and above those inherent in wheelchair racing)

The court first looked at the issue of whether or not the defendant was grossly negligent.

Ordinary negligence “consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” ‘[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty, ‘” amounts to ordinary negligence.'” In contrast, to establish gross negligence, a plaintiff must prove “either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’

California does not recognize gross negligence.

Rather, as our Supreme Court explained, “the distinction between ‘ordinary and gross negligence’ reflects ‘a rule of policy’ that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary.”

So even though California does not recognize gross negligence as a claim, it is defined as something falling short of reckless disregard of consequences and generates a harsher legal consequence. Whether that is defined as more money is not defined in the decision.

On appeal, the appellate court must look at the facts in favor of the plaintiff. Reviewing the facts and the jury’s decision, the court found there was enough evidence to support the jury’s conclusion. “Defendant’s behavior was an extreme departure from the ordinary standard of conduct.”

Although California does not support gross negligence, according to this decision, the court found, the plaintiff proved the defendant was grossly negligent.

The court then looked at assumption of the risk.

Primary assumption of risk, when applicable, “completely bars the plaintiff’s recovery,” whereas secondary assumption of risk” ‘is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.'” The presence or absence of duty determines whether an application of the defense will result in a complete bar (primary assumption of the risk) or merely a determination of comparative fault (secondary assumption of the risk).

There is no duty to reduce the inherent risks in sports. Requiring a mitigation of the inherent risks of sports would alter the nature of the game.

The test for whether primary assumption of risk applies is whether the activity” ‘involv[es] an inherent risk of injury to voluntary participants… where the risk cannot be eliminated without altering the fundamental nature of the activity.'” “The test is objective; it ‘depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity’ rather than ‘the particular plaintiff’s subjective knowledge and awareness[.]'”

There are three factors to be determined by the trial court in reviewing the defense of assumption of the risk. “…whether an activity is an active sport, the inherent risks of that sport, and whether the defendant has increased the risks of the activity beyond the risks inherent in the sport.”

The defendant argued it did not do anything to increase the risk of harm to the plaintiff. The defendant defined the risk as: “The pertinent inherent risk was that [P]laintiff would attempt to turn a corner at too high a speed, run off the race course, and crash.”

The court again found the plaintiff’s argument convincing. The actions of the defendant did increase the risk of harm to the plaintiff.

[Defendant] increased the risks inherent in wheelchair racing in multiple ways, including: (1) by failing to indicate on the basic course map provided to all competitors that the outside lane of 11th Avenue (the necessary ‘exit lane’ for a fast-moving wheelchair) would not be available on race day (or by failing to at least direct competitors to its much-heralded turn-by-turn directions for information regarding lane closures); (2) by affirmatively representing to racers through its ‘virtual tour’ that all lanes on 11th Avenue would be available to complete that turn; (3) by removing 13 feet… of the roadway from the critical ‘exit lane’ about an hour before the race began without ever alerting at least the… wheelchair racers to this change; and (4) by [f]ailing to take other necessary precautions (for instance, with announcements, required tours, better barricades, bigger signs, or sufficient spotters) to advise racers of that particularly precarious intersection.”

The bigger issue was the defendant changed the course from what was shown on the map and the virtual tour. The changes made by the defendant occurred where the plaintiff crashed.

According to Plaintiff, an hour before the race began with the wheelchair competitors already at the starting line; Defendant increased the risks by: eliminating the west lane of 11th Avenue, whereas the basic course map and virtual tour video did not indicate the loss of a lane; and allowing vehicle traffic in the west lane of 11th Avenue, where wheelchair racers would ordinarily complete their left turns from B Street, separating the racecourse from vehicle traffic by plastic traffic cones placed 15 feet apart.

Because there was a difference of opinion, because each side had plausible arguments to sort its theory of the case, the facts must be decided by the trier of fact, the jury. Because there was enough evidence to support the jury’s conclusion, the decision of the jury would be upheld on appeal.

For the foregoing reasons, Defendant did not meet its burden of establishing, as a matter of law, that Plaintiff assumed the risk of the injuries he sustained by competing as a wheelchair racer at the Marathon.

So Now What?

Simply, the defendant had created a course, mapped it and provided a video tour of the course to the racers. The racer’s relied on the map and video tour of the course. When the course was changed it increased the risk to the racers causing injury.

When you provide information to guests, you must expect them to rely on that information and the information is wrong, you are possibly liable for any injury arising from the changes, or the increased risk of harm to the participants.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

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

Author: Outdoor Recreation Insurance, Risk Management and Law

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Email: Jim@Rec-Law.US

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

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Blanchette v. Competitor Group, Inc., 2019 Cal. App. Unpub. LEXIS 7714, 2019 WL 6167131

Blanchette v. Competitor Group, Inc., 2019 Cal. App. Unpub. LEXIS 7714, 2019 WL 6167131

Craig Blanchette, Plaintiff and Respondent,

v.

Competitor Group, Inc., Defendant and Appellant.

D073971

California Court of Appeals, Fourth District, First Division

November 20, 2019

NOT TO BE PUBLISHED

APPEAL from a judgment and postjudgment order of the Superior Court of San Diego County No. 37-2016-00018380- CU-PO-CTL, Richard E. L. Strauss, Judge. Affirmed.

Horvitz & Levy, S. Thomas Todd, Eric S. Boorstin; Daley & Heft, Robert H. Quayle IV, Lee H. Roistacher and Rachel B. Kushner for Defendant and Appellant.

Higgs Fletcher & Mack, John Morris, Rachel E. Moffitt; RDM Legal Group, Russell Myrick and Keith Rodenhuis for Plaintiff and Respondent.

IRION, J.

Plaintiff Craig Blanchette (Plaintiff), then an elite wheelchair racer, competed in the 2014 San Diego Rock ‘n’ Roll Marathon (Marathon), which was owned and operated by defendant Competitor Group, Inc. (Defendant). During the race, Plaintiff was injured as he attempted a 90 degree left-hand turn, could not complete the turn, went through the orange traffic cones that marked the course boundary, and crashed into a car stopped at a traffic light in a lane outside the course.

Following a jury trial on one cause of action for gross negligence, the court entered a judgment in favor of Plaintiff and against Defendant in the amount of $3.2 million. On appeal, Defendant argues, as a matter of law, that it neither acted grossly negligent nor increased the risk inherent in wheelchair racing on city streets. As we explain, Defendant did not meet its burden of establishing, as a matter of law, either that it was not grossly negligent or that Plaintiff assumed the risk of the injuries he received. Thus, we will affirm the judgment and the order denying Defendant’s postjudgment motions.

I. FACTUAL BACKGROUND[ 1]

Due to a birth defect, Plaintiff’s femur bones are about two inches long, and Plaintiff has used a wheelchair since he was in the eighth grade. When Plaintiff was 15 years old, his grandfather bought him his first racing wheelchair. Plaintiff participated in his first professional wheelchair race two years later in 1986, placing fifth in a field of 250. He won his next eight races, setting four world records along the way. At age 20, Plaintiff won a bronze medal in the 1988 Summer Olympics; and over the next approximately 11 years of competition (i.e., prior to the year 2000), he set 21 world records and obtained sponsors.

Plaintiff took a break from wheelchair racing, competing in hand cycling for a few years. He eventually returned to wheelchair racing; and, by June of 2014, he was again “in race shape” as an elite athlete and participated in the Marathon.[ 2] Plaintiff described the “elite level” of wheelchair racing as the professional level, “allow[ing] you to make money competing[.]” Indeed, the Marathon had an elite athlete coordinator who invited Plaintiff, then a resident of Washington state, to come to San Diego to compete at the event. By that time Plaintiff had competed in hundreds of wheelchair races.

Plaintiff arrived in San Diego two days before the Marathon. Because he had not previously competed in a San Diego Rock ‘n’ Roll Marathon, during that time he “did everything” he was aware of to prepare for the race. He reviewed the basic course map; he studied “the virtual tour” video-at least 15 times-which played continuously on a monitor in the lobby of the hotel where the elite racers stayed; he went to the prerace exposition, where competitors signed in and received their racing bibs; and the night before the race, he attended the all-competitor meeting which included a general safety check, the distribution of additional copies of the basic course map, and the further opportunity to view the virtual tour video.

The basic course map that Defendant provided Plaintiff was on one piece of paper and covered the area from Balboa Avenue on the north to National Avenue/Logan Avenue on the south and from west of Interstate 5 on the west to Interstate 15 on the east. The marathon course is shown in a solid red line; the half-marathon course is shown in a solid blue line; and some of the shorter streets on the courses are unidentified. The virtual tour was a video of the entire racecourse, from start to finish, recorded from a car that traveled the streets of the course during normal daytime traffic conditions.[ 3] The entire video played at a speed that covered the entire 26.2-mile course in approximately five minutes-i.e., at a rate in excess of 300 miles per hour-and ran on a continuous loop in multiple locations.

The virtual tour video of the racecourse was especially important to Plaintiff, since wheelchair racers rely on the “racing line” they choose to maximize speed to gain an advantage during competition. According to Plaintiff, a wheelchair racer tries to “have the fastest racing line through” the turns; “you start wide, you taper down narrow,” completing the turn in “the exit lane.” In particular, from the virtual tour video, Plaintiff had studied the intersection where his accident occurred-11th Avenue just south of its intersection with B Street-and the racing line he would take as he turned left from B Street onto 11th Avenue.

According to the individual who was Defendant’s president and chief executive officer at all relevant times, [ 4] Defendant made available a one page document entitled “Turn by Turn Directions” (turn-by-turn directions) that listed each of the Marathon’s more than 40 turns and specified for each whether the entire street (“whole road”) or a portion of the street (e.g., “southbound lanes,” “east side of road,” etc.) was part of the racecourse. (See fn. 7, post.) Defendant presented evidence that these directions were available only on Defendant’s website and at an information booth at the prerace exposition. There is no evidence either that Defendant told Plaintiff about these directions or that Plaintiff knew about these directions; and Plaintiff testified that, before this lawsuit, he had never seen a copy of the turn-by-turn directions.

Defendant also presented evidence that it had provided the elite wheelchair racers with “a 24-hour concierge” who was able to answer questions they had, including information about or a tour of the racecourse. Defendant’s president and chief executive officer confirmed, however, that a competitor would have to contact the concierge and request services and that Defendant did not offer tours directly to the racers. In any event, there is no evidence that Plaintiff was aware of either the concierge or the services Defendant’s witness said the concierge could provide.

Finally, Defendant presented evidence that it provided bicycle-riding “spotters” on the racecourse who were responsible for providing visual cues to alert the elite racers-both those running and those wheeling-of course conditions. Defendant did not present evidence that any of its spotters was at or near the location of Plaintiff’s accident at any time; Defendant’s witnesses did not know the location of any of the spotters at or near the time of Plaintiff’s accident; and Plaintiff did not see any spotters on the racecourse at or near the place of his accident.

At the Marathon, Defendant hosted approximately 25, 000 athletes-five of whom competed in wheelchairs. The wheelchair racers started first, since they travel at much faster speeds than the runners.[ 5]

The accident occurred early in the race, approximately 3.9 miles from the start.[ 6] The Marathon began on 6th Avenue at Palm Street and proceeded north approximately one mile to University Avenue; the course continued east (right turn) on University Avenue for more than one-half mile to Park Boulevard; and then the course went south (right turn) on Park Boulevard for approximately two miles. The following two turns in quick succession, at times referred to “a zigzag” or “an S turn,” led to the accident: At the intersection of Park Boulevard and B Street, the racers made a 90 degree right turn (west) onto B Street; and one block later, they made a 90 degree left turn (south) onto 11th Avenue. At the speed he was traveling, Plaintiff was unable to negotiate the left turn from B Street onto 11th Avenue. Instead of completing the left turn and continuing south on 11th Avenue, at about 45 degrees, Plaintiff went off the course to the west and crashed into a car stopped at a traffic light in the western-most lane of 11th Avenue.

There are three lanes on B Street and four lanes on 11th Avenue. Under normal conditions on 11th Avenue, all four lanes of vehicle traffic travel northbound and merge into a freeway two blocks north of B Street. During the race, the far west lane of 11th Avenue was unavailable for the southbound racers; instead, it was kept open for northbound vehicle traffic from downtown to the freeway.

 Approximately one hour before the race, Defendant closed the Marathon streets downtown and, as relevant to this lawsuit, set up traffic cones, 15 feet apart, which directed the Marathon racers to make the left turn from the three lanes of B Street to the three eastern lanes of 11th Avenue-thereby eliminating the west lane of 11th Avenue to wheelchair racers and making it available for vehicles traveling north to the freeway. At all times, including well in advance of the Marathon, Defendant knew that the west lane of 11th Avenue would be closed to competitors and open to vehicle traffic: Defendant was using the same course it had used in prior years; and Defendant had prepared and provided to many others “an internal working document” that contained sufficient detail to show the traffic cones and elimination of the west lane on 11th Avenue. In this latter regard, Defendant provided its “internal working document” to the course setup teams, the traffic control setup teams, the bands, the aid stations, the medical people, and “those that needed that level of detail”-but not to the elite wheelchair racers.

Not until he was racing-indeed, not until the point in time at which he was at the west end of the one block of B Street, turning left onto 11th Avenue at a speed in excess of 20 miles per hour-did Plaintiff first learn that Defendant had closed the west lane of 11th Avenue to racers and left it open to motor traffic. Nowhere in what Defendant provided-which included the basic course map, the virtual tour video of the course, and the information at the prerace exposition (sign-in) and the all-competitor safety check meeting-was Plaintiff told that, as the racecourse turned left from B Street to 11th Avenue: the west lane of 11th Avenue would be unavailable to racers; a row of orange traffic cones would separate the three east lanes of 11th Avenue (i.e., the course) from the one west lane (i.e., outside the course); or cars would be in the one west lane of 11th Avenue while the racers would be limited to the three east lanes, separated only by traffic cones 15 feet apart from one another.

This was significant to Plaintiff. In planning his speed and racing line for the S curve (right turn from Park Blvd. to B St. followed immediately by the left turn from B St. to 11th Ave.), he had to know his exit lane on 11th Avenue in order to “set up for this corner.” That is because, according to Plaintiff, “the width of the exit is the primary factor that determines the speed of entrance.” To safely set up for the S curve, for example, “you had to know the specifics of what was happening on 11th [Avenue] back on Park [Boulevard]” in order to maneuver the S curve “at the right speed.” More specifically, Plaintiff testified that he “would have needed to know about this racing lane elimination [on the west side of 11th Avenue] prior to entering the corner on [B Street]-off of Park [Boulevard].”[ 7] (Italics added.)

That did not happen. Based on the information Defendant provided Plaintiff-i.e., from studying the basic course map and the virtual tour video, and attending the prerace exposition and the all-competitor meeting-Plaintiff had no reason to suspect that his planned exit lane would be closed to wheelchair racers and open to cars. Given his speed, his “racing line,” and his view of the road, Plaintiff had only two seconds from the time he first learned that the west lane of 11th Avenue was unavailable as an exit lane until he crossed the boundary and crashed into the car in the west lane.

Plaintiff testified that, throughout his 30 years of racing, he had “never seen a lane elimination like that” on the turn from B Street to 11th Avenue at the Marathon. Consistently, another of the elite wheelchair racers who competed at the Marathon testified that, based on the approximately 140 races in which he has participated over 27 years, he would not expect motor vehicle traffic like the wheelchair racers encountered on 11th Avenue. Finally, Plaintiff’s expert testified: changing a racecourse that a wheelchair racer is expecting an hour before the race is not only misleading but “would make the race inherently more dangerous”; “on Sunday morning there can be no changes”; and the organizer of the race is responsible for ensuring the safety of the competitors.

As a result of the crash into the stopped vehicle on 11th Avenue, Plaintiff suffered personal injuries, including broken bones, and the healing process required multiple surgeries. Since the accident at the Marathon, Plaintiff has been unable to compete as an elite athlete in longer wheelchair races.

II. PROCEDURAL BACKGROUND

In June 2016, Plaintiff filed a complaint based on the injuries he suffered during the Marathon when he crashed into the stopped vehicle on 11th Avenue. The operative complaint is a first amended complaint in which Plaintiff alleged three causes of action-negligence, gross negligence, and fraud-against Defendant and two other entities.

As to the two other entities, the trial court granted their summary judgment motion, and there is no issue on appeal as to these defendants or the claims Plaintiff alleged against them. As to Defendant, the trial court granted its motion for summary adjudication as to the claims for negligence, fraud, and punitive damages; and there is no issue on appeal regarding these claims. The case proceeded to a jury trial on Plaintiff’s one claim for gross negligence against Defendant.

Over the course of seven days in January 2018, the trial court presided over a jury trial, and the jury returned a verdict in Plaintiff’s favor, finding in relevant part: Defendant was grossly negligent (vote 9-3); Plaintiff did not assume the risk of the injury he suffered (vote 9-3); Plaintiff suffered damages in the amount of $4 million (vote 12-0); and Plaintiff was 20 percent contributorily negligent (vote 10-2). Accordingly, the court entered judgment for Plaintiff and against Defendant in the amount of $3.2 million.

Defendant filed postjudgment motions, including supporting documentation, for a new trial and for a judgment notwithstanding the verdict. Plaintiff filed oppositions to the motions, and Defendant filed replies to Plaintiff’s oppositions. Following hearing, in March 2018 the trial court denied Defendant’s motions.

Defendant timely appealed from both the judgment and the order denying the postjudgment motions.

III. DISCUSSION

Defendant contends that the judgment should be reversed with directions to enter judgment in Defendant’s favor on either of the following two grounds: (1) As a matter of law, Plaintiff failed to establish gross negligence by Defendant; or (2) as a matter of law, Defendant established that it did not unreasonably increase the risk (i.e., Plaintiff assumed the risk) that Plaintiff would injure himself by turning from B Street to 11th Avenue at too high a speed to complete the turn.

The parties disagree as to the standard of review to be applied. Defendant argues that, because the material facts are undisputed and only one inference can reasonably be drawn, we review both issues de novo. In response, Plaintiff argues that, because material facts were disputed-or, at a minimum, conflicting inferences exist from the undisputed facts-we review both issues for substantial evidence. As we explain, under either standard we must consider the evidence in a light most favorable to Plaintiff; thus, in essence, we will be reviewing both issues for substantial evidence. In doing so, we apply well-established standards.

We “look to the entire record of the appeal,” and if there is substantial evidence, “it is of no consequence that the [jury] believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics deleted.)” ‘[T]he test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the respondent.'” (Dane-Elec Corp., USA v. Bodokh (2019) 35 Cal.App.5th 761, 770.) “If this ‘substantial’ evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631 (Howard).) The fact that the record may contain substantial evidence in support of an appellant’s claims is irrelevant to our role, which is limited to determining the sufficiency of the evidence in support of the judgment actually made. (Ibid.)

In determining the sufficiency of the evidence, we “may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to [the verdict] must be accepted as true and conflicting evidence must be disregarded.” (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118, italics added; accord, Howard, supra, 72 Cal.App.4th at p. 631 [“we will look only at the evidence and reasonable inferences supporting the successful party, and disregard the contrary showing”].) The testimony of a single witness, including that of a party, may be sufficient (In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Evid. Code, § 411); whereas even uncontradicted evidence in favor of an appellant does not establish the fact for which the evidence was submitted (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890 (Foreman)).

Under these standards, as we will explain, substantial evidence supports the jury’s findings both that Defendant was grossly negligent (i.e., Plaintiff proved Defendant’s extreme departure from the ordinary standard of care) and that Plaintiff did not assume the risk of the injury he suffered (i.e., Defendant failed to prove that it did not unreasonably increase the risks to Plaintiff over and above those inherent in wheelchair racing). Thus, as we will conclude, Defendant did not meet its burden of establishing reversible error. (See Jameson v. Desta (2018) 5 Cal.5th 594, 609 [“a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate… an error that justifies reversal”].)

A. Gross Negligence

The jury answered “Yes” to special verdict question No. 1, “Was [Defendant] grossly negligent?” Defendant contends that, as a matter of law, the undisputed material facts do not support the jury’s finding of gross negligence. We disagree.

1. Law

Ordinary negligence “consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-754 (Santa Barbara).)” ‘” ‘[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty, ‘” amounts to ordinary negligence.'” (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 358 (Willhide-Michiulis).) In contrast, to establish gross negligence, a plaintiff must prove “either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.'” (Santa Barbara, at p. 754; accord, Willhide-Michiulis, at p. 358.)

California does not recognize a cause of action for “gross negligence.” (Santa Barbara, supra, 41 Cal.4th at pp. 779-780.) Rather, as our Supreme Court explained, “the distinction between ‘ordinary and gross negligence’ reflects ‘a rule of policy’ that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary.” (Id. at p. 776.) For this reason,” ‘”‘ “[g]ross negligence” falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind.'” ‘” (Willhide-Michiulis, supra, 25 Cal.App.5th at p. 358.)

2. Analysis

Defendant argues for de novo review on the basis that, according to Defendant, “the material facts are undisputed and only one inference can reasonably be drawn.” Plaintiff disagrees, arguing that many material facts were disputed, conflicting inferences exist, Defendant’s appeal “presents garden-variety challenges to a jury’s factual findings”-and, accordingly, the issues Defendant raises in this appeal are subject to substantial evidence review.

 Persuasively, Plaintiff relies on Cooper v. Kellogg (1935) 2 Cal.2d 504 (Cooper). In Cooper, the plaintiff was a passenger in the defendant’s car, and late at night the plaintiff was injured when the defendant fell asleep, crossed into oncoming traffic, and hit a car traveling in the opposite direction. (Id. at pp. 506-507.) Under the law in effect at the time of the accident, the plaintiff could recover from the defendant driver only if the defendant was grossly negligent. (Id. at pp. 505-506.) Thus, to recover, the plaintiff had to establish “whether defendant [driver] was grossly negligent in permitting himself to fall asleep”-i.e., not merely “whether he was negligent in the manner in which he controlled the car[.]” (Id. at p. 507.)

Following trial, the court found that the defendant had not operated the vehicle in a grossly negligent manner. (Cooper, supra, 2 Cal.2d at p. 507.) The plaintiff in Cooper argued on appeal that the uncontradicted evidence required a finding as a matter of law that the defendant driver was grossly negligent. (Id. at p. 508.) The uncontradicted evidence in Cooper included the defendant’s considerable activities during the 18 hours preceding the accident (from 8:00 a.m. until the accident at 2:00 a.m. the following morning[ 8]), and the defendant’s testimony that, despite the activities, he had no premonition or warning of sleepiness. (Id. at pp. 506-507.) The plaintiff could add nothing to the evidence of the accident, since he had fallen asleep. (Id. at p. 506.)

In response to the plaintiff’s argument that “the uncontradicted evidence requires a finding of gross negligence upon the part of [the defendant driver],” the Supreme Court disagreed, ruling: “Whether there has been such a lack of care as to constitute gross negligence is a question of fact for the determination of the trial court or jury, and this is so ‘even where there is no conflict in the evidence if different conclusions upon the subject can be rationally drawn therefrom.'” (Cooper, supra, 2 Cal.2d at pp. 508, 511, italics added.) Thus, even though the evidence concerning the defendant driver and his activities during the 18 hours preceding the accident was undisputed, the Supreme Court refused to rule as a matter of law, deferring instead to the trier of fact: Despite the undisputed facts, “we cannot say that the only reasonable conclusion the trial court could reach was that there was such a likelihood of his falling asleep, of which he knew or should have been aware, that his continuing to operate the car amounted to gross negligence as defined above.” (Id. at p. 511.)

The analysis and result are the same here. We cannot say that the only reasonable conclusion the jury could reach was that Defendant’s actions were not grossly negligent. Even if some facts are undisputed, viewing the evidence in a light most favorable to Plaintiff-as we must (see fn. 1, ante)-” ‘different conclusions upon the subject can be rationally drawn therefrom.'” (Cooper, supra, 2 Cal.2d at p. 511.) Thus, as in Cooper, we do not apply independent review. (Ibid.) Although Defendant does not present its arguments based on substantial evidence review, by contending that the undisputed material facts require as a matter of law a ruling that Defendant was not grossly negligent, Defendant is arguing that substantial evidence does not support the jury’s finding of gross negligence. As we explain, we are satisfied that substantial evidence supports the jury’s finding that Defendant was grossly negligent-i.e., Defendant’s behavior was an extreme departure from the ordinary standard of conduct.[ 9]

Defendant argues: “As a matter of law, [Defendant] did not fail to use even scant care, or depart in an extreme way from the ordinary standard of conduct, when it posted the turn-by-turn directions on its website and made them available at its information booth, but did not physically hand a copy to [P]laintiff and the other wheelchair racers.” Very simply, this argument fails to consider or apply the appropriate standard of review.[ 10] As we introduced at footnote 1, ante-and as Defendant invites us to do, but fails to do in its analysis-we construe all facts and inferences in a light most favorable to Plaintiff. (Mary M., supra, 54 Cal.3d at p. 214, fn. 6 [on appeal where appellant contends the material facts are undisputed]; Carrington, supra, 30 Cal.App.5th at p. 518 [on appeal from the judgment where appellant contends the record lacks substantial evidence to support the verdict]; Jorge, supra, 3 Cal.App.5th at p. 396 [on appeal from the denial of a motion for judgment notwithstanding the verdict where appellant contends the record lacks substantial evidence to support the verdict].)

According to Defendant, we should credit fully the evidence presented by Defendant-including but not limited to the testimony that the turn-by-turn directions were available to Plaintiff-and discredit the evidence from the wheelchair racers that races like the Marathon do not have either lane elimination (like that on the turn from B Street to 11th Avenue) or vehicle traffic (like that in the west lane of 11th Avenue). However, this is not the appropriate standard when viewing the evidence in a light most favorable to the prevailing party. (See pt. III., before pt. III.A., ante.) To accept Defendant’s argument would result in this appellate court usurping the jury’s responsibility for determining credibility of witnesses and truth of evidence. (City of Hope National Medical Center v. Genetech, Inc. (2008) 43 Cal.4th 375, 394; Hawkins v. City of Los Angeles (2019) 40 Cal.App.5th 384, 393 [” ‘”‘ “it is the exclusive province of the [jury] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends” ‘”‘ “; brackets in original].) Even though a material fact may be “undisputed” as argued by Defendant, on the present record this means only that contrary evidence was not presented; it does not mean that Plaintiff agreed to the fact or that the jury-or this court on appeal-must credit the undisputed fact as a matter of law. (See Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 33 [defense summary judgment on claim of gross negligence inappropriate in part due to “credibility questions that need to be answered”].)

We consider, for example, Defendant’s actions in making the west lane of 11th Avenue unavailable for racers; in making the west lane of 11th Avenue available for vehicle traffic; in separating the wheelchair racers’ exit lane and the traffic lane with cones placed 15 feet apart; and in notifying the racers of this situation. Defendant’s president and chief economic officer testified that Defendant prepared turn-by-turn directions that communicated to racers that the west lane of 11th Avenue would not be available for racers and that Defendant made these directions available both on its website and at its information booth at the exposition.[ 11] However, Plaintiff testified that he neither saw nor knew of the turn-by-turn directions;[ 12] and the record does not contain evidence from anyone who actually saw the directions either on Defendant’s website or Defendant’s information booth. Thus, although Defendant tells us that it “is undisputed that the turn-by-turn directions were” on Defendant’s website and at Defendant’s information booth, at best the facts on which Defendant relies were uncontradicted, not undisputed; yet even uncontradicted evidence in favor of an appellant does not establish the fact for which the evidence was submitted (Foreman, supra, 3 Cal.3d at p. 890).

In any event, these facts raise inferences and credibility determinations that preclude a ruling-either way-whether Defendant was grossly negligent as a matter of law.

Through the basic course map and the virtual tour video it provided to the Marathon racers, Defendant represented to Plaintiff that all lanes on 11th Avenue would be open to the racers-including specifically the west lane, which Plaintiff reasonably considered and planned to use as the exit lane for his turn from B Street to 11th Avenue. At all times, however, Defendant knew that traffic cones would be used both to direct wheelchair racers to make the left turn from B Street to 11th Avenue and to eliminate the west lane of 11th Avenue to wheelchair racers. Although Defendant prepared an “internal working document” with this specific information and provided it to “those that needed that level of detail,” Defendant did not provide it to the wheelchair racers. One hour before the start of the race and with no notice to Plaintiff-at a time when Plaintiff was already near the starting line and warming up-Defendant placed traffic cones, 15 feet apart from one another, on the outside of the left turn from B Street to 11th Avenue and down the length of 11th Avenue, blocking Plaintiff from using the exit lane he had planned based on the basic course map and virtual tour video Defendant provided.

In this regard, the following evidence from two of the five elite wheelchair racers who competed at the Marathon was uncontradicted: One racer testified that, in his 30 years’ experience in wheelchair racing, he had “never seen a lane elimination” like that on the left turn from B Street to 11th Avenue; and another racer testified that, based on his 27 years’ experience in over 140 wheelchair races, he would never expect motor vehicle traffic to be in the lane next to the wheelchair racers separated only by traffic cones placed 15 feet apart. Moreover, according to Plaintiff’s expert, Defendant was responsible for ensuring the safety of all racers, and on the morning of the race “there can be no changes” made to racecourse, because to do so “would make the race inherently more dangerous” for the wheelchair competitors. Given his speed, his racing line, and his view of the racecourse as he proceeded down the one block of B Street, Plaintiff had only two seconds to attempt to change his course from when he first learned that Defendant had closed the west lane of 11th Avenue and when he crashed into the car in the west lane of 11th Avenue. Had Plaintiff known of the lane elimination on 11th Avenue, he would have been able to negotiate the turn from B Street by “com[ing] into the corner differently.”

Like Cooper, even where (as here) there is no conflict in the evidence, because various conclusions can be drawn from the evidence based on inferences and credibility, we cannot say that the only reasonable finding the jury could reach was that Defendant’s actions were not an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to Plaintiff. Stated differently, the evidence and inferences from the evidence described in the preceding paragraphs substantiate the jury’s finding that Defendant was grossly negligent.

 Defendant’s legal authorities do not support a different analysis or result. Defendant first cites seven cases-each followed by a one sentence (or less) parenthetical describing facts or quoting language-in which intermediate appellate courts ruled that a plaintiff could not establish a lack of gross negligence as matter of law. Defendant continues by citing five cases-each followed by a one sentence (or less) parenthetical describing facts or quoting language-in which intermediate appellate courts ruled that a defendant failed to establish a lack of gross negligence as a matter of law. Defendant then concludes by stating without discussion or argument: “Contrasting the facts of the cases that find no gross negligence as a matter of law with the facts of the cases that find possible gross negligence, it is apparent that our case falls in the former category.” Defendant does not suggest the reason, and we decline to speculate as to what “is apparent” to Defendant. In short, Defendant’s one-sentence argument is neither helpful nor persuasive.

For the foregoing reasons, Defendant did not meet its burden of establishing, as a matter of law, that Plaintiff failed to prove gross negligence.

B. Assumption of the Risk

The jury answered “Yes” to special verdict question No. 3, “Did [Defendant] do something or fail to do something that unreasonably increased the risks to [Plaintiff] over and above those inherent in marathon wheelchair racing?” Defendant contends that, as a matter of law, the undisputed material facts do not support the jury’s finding that Defendant unreasonably increased the risks inherent in marathon wheelchair racing. Stated differently, Defendant contends that, as a matter of law, Plaintiff assumed the risk of the injuries he sustained by competing as an elite wheelchair racer at the Marathon. We disagree.

1. Law

Assumption of the risk is an affirmative defense to a plaintiff’s claim of negligence. (6 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, § 1437(2), p. 758.) Primary assumption of risk, when applicable, “completely bars the plaintiff’s recovery,” whereas secondary assumption of risk” ‘is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.'” (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1068 (Cheong); see Knight v. Jewett (1992) 3 Cal.4th 296, 314-315 (Knight ).) The presence or absence of duty determines whether an application of the defense will result in a complete bar (primary assumption of the risk) or merely a determination of comparative fault (secondary assumption of the risk). (6 Witkin, supra, § 1437(2) at p. 758.)

” ‘Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities-and, specifically, many sports-are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.'” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154 (Nalwa).) Primary assumption of risk is a doctrine of limited duty which was “developed to avoid such a chilling effect.” (Ibid.) If it applies to a recreational activity like the Marathon, an event sponsor like Defendant owes the “participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” (Ibid. [primary assumption of the risk applied as a complete defense to bumper car passenger’s action against amusement park owner for injuries sustained when bumper cars collided].)

In Knight, supra, 3 Cal.4th 296, our Supreme Court considered the proper application of the assumption of risk doctrine in terms of duty, given the court’s adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804.[ 13] The court “distinguished between (1) primary assumption of risk-‘those instances in which the assumption of risk doctrine embodies a legal conclusion that there is “no duty” on the part of the defendant to protect the plaintiff from a particular risk’-and (2) secondary assumption of risk-‘those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.'” (Cheong, supra, 16 Cal.4th at pp. 1068-1069, quoting Knight, at p. 308.)

The test for whether primary assumption of risk applies is whether the activity” ‘involv[es] an inherent risk of injury to voluntary participants… where the risk cannot be eliminated without altering the fundamental nature of the activity.'” (Nalwa, supra, 55 Cal.4th at p. 1156.) “The test is objective; it ‘depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity’ rather than ‘the particular plaintiff’s subjective knowledge and awareness[.]'” (Cheong, supra, 16 Cal.4th at p. 1068, quoting Knight, supra, 3 Cal.4th at p. 313.)

In determining whether the doctrine of assumption of the risk will be a defense to a claim of negligence in a sporting activity, the trial court must consider three issues:”‘ “whether an activity is an active sport, the inherent risks of that sport, and whether the defendant has increased the risks of the activity beyond the risks inherent in the sport.” ‘” (Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1061 (Fazio); see Knight, supra, 3 Cal.4th at p. 317 [in analyzing the duty of an owner/operator of a sporting event, courts should consider “the risks inherent in the sport not only by virtue of the nature of the sport itself, but also by reference to the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport” (italics added)].) The first two issues, which relate to duty, are determined by the court, and the third-viz., increased risk-is a question to be decided by the trier of fact.[ 14] (Fazio, at pp. 1061-1063.)

2. Analysis

In its opening brief, Defendant explained that, at trial, in response to Defendant’s prima facie showing in support of its affirmative defense of primary assumption of the risk, “[P]laintiff had to prove that [Defendant] unreasonably increased the risk to him over and above the risks inherent in wheelchair racing on city streets.”[ 15] In this context, Defendant characterized the risk at issue as follows:

“The pertinent inherent risk was that [P]laintiff would attempt to turn a corner at too high a speed, run off the race course, and crash.”

In this context, Defendant described the issue on appeal to be:

 “[W]hether [Defendant], by not physically handing [P]laintiff a copy of the turn-by-turn directions, in addition to making them available on its website and at its information booth, unreasonably increased the inherent risk that [P]laintiff would attempt to turn a corner at too high a speed, run off the race course, and crash.”

Defendant accordingly limited its substantive argument on appeal to establishing, as a matter of law, that it did nothing to increase the risk that “[P]laintiff would attempt to turn a corner too fast, run his wheelchair off the race course, and crash” and that it was not required to undertake any affirmative efforts to decrease that risk.

In its brief, Plaintiff criticized Defendant for “tak[ing] too narrow a view of its duty here (framing this issue as simply as whether it ‘unreasonably increased the inherent risk’ that [Plaintiff] would ‘roll over or run off the race course and crash’).” Plaintiff disagreed with Defendant’s “formulation,” corrected Defendant’s statement of the inherent risk at issue, and explained his position as follows:

“The ‘precise issue,’ instead, is whether… [Defendant] increased the risks inherent in wheelchair racing in multiple ways, including: (1) by failing to indicate on the basic course map provided to all competitors that the outside lane of 11th Avenue (the necessary ‘exit lane’ for a fast-moving wheelchair) would not be available on race day (or by failing to at least direct competitors to its much-heralded turn-by-turn directions for information regarding lane closures); (2) by affirmatively representing to racers through its ‘virtual tour’ that all lanes on 11th Avenue would be available to complete that turn; (3) by removing 13 feet… of the roadway from the critical ‘exit lane’ about an hour before the race began without ever alerting at least the… wheelchair racers to this change; and (4) by [f]ailing to take other necessary precautions (for instance, with announcements, required tours, better barricades, bigger signs, or sufficient spotters) to advise racers of that particularly precarious intersection.”

In its argument, consistent with its position on gross negligence, Plaintiff emphasized that Defendant affirmatively increased the inherent risks of marathon wheelchair racing by changing the racecourse from that shown on the basic course map and the virtual tour video. According to Plaintiff, an hour before the race began with the wheelchair competitors already at the starting line, Defendant increased the risks by: eliminating the west lane of 11th Avenue, whereas the basic course map and virtual tour video did not indicate the loss of a lane; and allowing vehicle traffic in the west lane of 11th Avenue, where wheelchair racers would ordinarily complete their left turns from B Street, separating the racecourse from vehicle traffic by plastic traffic cones placed 15 feet apart. In support of his argument, Plaintiff relied on the following testimony: In his 30 years of wheelchair racing, Plaintiff had “never seen a lane elimination like that” on the turn from B Street to 11th Avenue; and based on his 27 years of wheelchair racing, another Marathon wheelchair competitor would never have expected the motor vehicle traffic that the wheelchair racers encountered on 11th Avenue-i.e., motor vehicles traveling in the lane next to the wheelchair racers’ exit lane, where competitors were racing at speeds exceeding 20 miles per her, separated only by traffic cones placed 15 feet apart.

In its reply brief, Defendant acknowledged that Plaintiff considered Defendant’s increase to the inherent risks in wheelchair racing to be the elimination of the west lane of 11th Avenue without notice, but continued with its position from its opening brief, restating it in part as follows:

 “Stated in terms of legal requirements, [Defendant] had no duty to eliminate or minimize the inherent risks of wheelchair road racing, one of which is that [P]laintiff would attempt to go too fast around a corner, run off the race course and crash. [¶] In the opening brief, we said the precise issue on appeal is whether [Defendant] unreasonably increased the inherent risk of injury by making the turn-by-turn directions available on its website and at its manned information booth, but not physically handing [P]laintiff a copy of the directions.”

Defendant again argued that it did not increase the inherent risks associated with wheelchair racing by eliminating the west lane and allowing vehicle traffic on 11th Avenue, because Defendant prepared turn-by-turn directions that a defense witness said were available on Defendant’s website and at Defendant’s information booth at the exposition.

The parties again disagree as to the standard of review. Defendant contends that, because the facts are undisputed, we are to review the judgment de novo; whereas Plaintiff contends that, because many facts-and inferences from the facts-are disputed, we are to review the judgment for substantial evidence. As before, Plaintiff has the better position.

As we explained in reviewing whether Defendant was grossly negligent (see pt. III.A.2, ante), even if some facts are undisputed, viewing the evidence in a light most favorable to Plaintiff-as we must (see fn. 1, ante)-” ‘different conclusions upon the subject can be rationally drawn therefrom’ “; and if different conclusions can be drawn, then the issue to be determined is a question of fact” ‘even where there is no conflict in the evidence.'” (Cooper, supra, 2 Cal.2d at p. 511 [uncontradicted evidence of arguably gross negligence does not require a finding of gross negligence as a matter of law].) Since the same “undisputed” evidence is at issue in reviewing whether Defendant increased the risks of injury to the wheelchair racers at the Marathon, we apply the same standard of review-i.e., substantial evidence.

The determination of whether Defendant increased the risks for wheelchair racers beyond those inherent in the sport of marathon wheelchair racing is an issue of fact.[ 16] (Fazio, supra, 233 Cal.App.4th at p. 1061; see pt. III.B.1., ante.) As we discuss, the same substantial evidence that supported the jury’s finding of gross negligence (see pt. III.A.2., ante) also supports the jury’s finding that Defendant affirmatively increased the risks associated with marathon wheelchair racing.[ 17]

Through the basic course map and the virtual tour video it provided to Plaintiff, Defendant represented that all lanes on 11th Avenue would be open to the racers-including specifically the west lane, which Plaintiff reasonably considered and planned to use as the exit lane for his left turn from B Street to 11th Avenue. One hour before the start of the race and with no notice to Plaintiff-at a time when Plaintiff was already near the starting line and warming up-Defendant placed traffic cones, 15 feet apart from one another, on the outside of the left turn from B Street to 11th Avenue and down the length of 11th Avenue, blocking Plaintiff from using the exit lane he had planned. This action increased the risks otherwise inherent in wheelchair racing, because: Neither lane elimination on the racecourse nor vehicle traffic separated by traffic cones next to the wheelchair racers’ exit lane on the racecourse is a risk inherent in marathon wheelchair racing; yet Defendant’s actions both eliminated a lane on 11th Avenue and allowed for a lane of vehicle traffic on 11th Avenue next to the exit lane for the left turn from B Street, separated only by traffic cones 15 feet apart.

Thus, the record contains substantial evidence to support the finding that Defendant increased the risks inherent in marathon wheelchair racing. In short, the record contains evidence that Defendant changed the racecourse from what Defendant showed Plaintiff on the basic course map and virtual tour video-merely one hour before the start of the race-without disclosing the change to Plaintiff or the other wheelchair racers.

Consistent with its argument as to gross negligence, Defendant contends that, with regard to assumption of the risk, although “it is the racers’ responsibility to become sufficiently familiar with the race course to successfully negotiate its features,” Plaintiff failed to “go on [Defendant’s] website, visit [Defendant’s] information booth, or consult [Defendant’s] knowledgeable personnel” where Plaintiff could have received a copy of the turn-by-turn directions. Consistent with our ruling on gross negligence (see pt. III.A.2., ante), Defendant does not cite to evidence that Plaintiff knew of such resources, let alone that those resources had turn-by-turn directions or other information which disclosed the changes to the racecourse from the information Defendant affirmatively provided him in the basic course map and virtual tour video.

For the foregoing reasons, Defendant did not meet its burden of establishing, as a matter of law, that Plaintiff assumed the risk of the injuries he sustained by competing as a wheelchair racer at the Marathon.

IV. DISPOSITION

The judgment and the order denying Defendant’s postjudgment motions are affirmed. Plaintiff is entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

  WE CONCUR: HALLER, Acting P. J., O’ROURKE, J.

———

Notes:

[ 1] Defendant argues for de novo review of the two issues (gross negligence and assumption of the risk) based on its contention that “the material facts are undisputed and only one inference can reasonably be drawn.” Defendant’s principal authority for this standard is Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202 (Mary M.), which instructs that, when applying this standard, the facts must be considered “in the light most favorable” to the prevailing party. (Id. at p. 214, fn. 6.) Indeed, citing this same footnote in Mary M., Defendant acknowledges that, under this standard, even “[d]isputed material facts can become undisputed by construing them in the manner most favorable to the opposing party.” Construction of the evidence in a light most favorable to the prevailing party is consistent with established standards of review following a jury verdict and the denial of a motion for judgment notwithstanding the verdict. (Carrington v. Starbucks Corp. (2018) 30 Cal.App.5th 504, 518 (Carrington) [appeal from judgment where appellant contends the record lacks substantial evidence to support the verdict]; Jorge v. Culinary Institute of America (2016) 3 Cal.App.5th 382, 396 (Jorge) [appeal from order denying motion for judgment notwithstanding the verdict].)

[ 2] The Marathon was 26.2 miles. It began just north of downtown San Diego (on 6th Ave. near Palm St., west of Balboa Park) and finished in the south end of downtown San Diego (on 13th St. near K St., east of Petco Park).

[ 3] A copy of the virtual tour video was not available for trial. As described by Plaintiff, on one-way streets where the racers would be traveling against the flow of the traffic during the recording session, the camera was placed in the rear of the car, and when the video was prepared, the portions recorded from the rear of the car were spliced into the video in reverse.

[ 4] We describe this evidence-and the evidence in the subsequent two paragraphs of the text-since Defendant emphasizes it in Defendant’s appellate briefing. However, this is not evidence we consider when analyzing the evidence and inferences in a light most favorable to Plaintiff, as previewed at footnote 1, ante, and discussed at parts III.A.2. and III.B.2., post.

[ 5] The Marathon course diagram, which is an internal document that the course operations team prepares, indicates that the wheelchair racers were scheduled to start 5 minutes before the first group of runners.

[ 6] The reporter’s transcript contains testimony from Defendant’s president and chief executive officer that the accident happened “at a little less than a fourth of a mile” from the start line. Based on the course map and the testimony of two racers, apparently either the witness misspoke or the reporter’s transcript contains an error.

[ 7] Plaintiff testified that, had he been given advance notice that the west lane of 11th Avenue had been eliminated from the course he had seen on the virtual tour video, he would have planned for a different racing line and successfully completed the turn from B Street to 11th Avenue. The turn-by-turn directions-the existence of which was never made known to Plaintiff-described the S curve from Park Boulevard to 11th Avenue as follows: “1.6 [miles] Right (south) turn on Park Blvd[.], southbound lanes only “3.8 [miles] Right (west) turn on B St[.], whole road “3.9 [miles] Left (south, against traffic) turn on 11th Ave[.], east side of road[.]” Notably, these directions do not disclose either that the west lane of 11th Avenue would be unavailable to racers or that vehicle traffic would be traveling northbound in the west lane of 11th Avenue.

[ 8] The plaintiff and defendant left Santa Rosa around 8:00 a.m.; more than two hours later they had lunch in San Francisco; they drove to San Mateo and attended a football game; after the game, they drove to San Francisco, where they had dinner and attended the theater; they took the ferry to Sausalito around midnight; and the accident occurred as the defendant drove from Sausalito back to Santa Rosa. (Cooper, supra, 2 Cal.2d at p. 506.)

[ 9] Consistent with CACI No. 425, the court instructed the jury: “Gross negligence is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others. [¶] A person can be grossly negligent by acting or by failing to act.”

[ 10] Defendant’s argument also implies that Plaintiff should have requested or taken advantage of the turn-by-turn directions. However, since there is no evidence suggesting that Plaintiff knew such information was available, we question how Plaintiff could have requested or taken advantage of it.

[ 11] Defendant does not contend that its turn-by-turn directions or any other evidence told Plaintiff that the west lane of 11th Avenue would be open to vehicle traffic or separated from the racecourse only by traffic cones 15 feet apart.

[ 12] In its reply, Defendant argues that Plaintiff was unaware of turn-by-turn directions because “Plaintiff chose not go on the website, visit the information booth, or consult the knowledgeable personnel.” (Italics added.) Defendant cites no evidence-and in our review of the record, we are unaware of evidence-that Plaintiff chose not to take advantage of those services. While that is one inference that can be drawn from Plaintiff’s testimony, that is not the only inference. Other reasonable inferences include that Plaintiff failed to take advantage of those services either: because he did not know they were available; or, since Plaintiff had never seen a lane eliminated like on 11th Avenue and elite wheelchair racers do not expect motor vehicle traffic to be separated from the competitors by traffic cones, he would not think to ask about such services. As Defendant acknowledges, because multiple inferences can be drawn from Plaintiff’s failure to take advantage of those services, such failure is not an “undisputed fact” for purposes of our appellate review. (Mary M., supra, 54 Cal.3d at p. 213.)

[ 13] Knight was a plurality opinion, but a unanimous court later “restated the basic principles of Knight‘s lead opinion as the controlling law.” (Cheong, supra, 16 Cal.4th at p. 1067, citing Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 537-538.)

[ 14] We recognize-as we did in Fazio, supra, 233 Cal.App.4th at page 1061-that Court of Appeal decisions conflict as to whether the issue of increased risk is a legal question for the court or a factual question for the jury. (Id. at pp. 1061-1063.) We have no reason to reconsider our ruling and analysis in Fazio, and Defendant does not suggest otherwise. (See fn. 16, post.)

[ 15] In this regard, the trial court instructed the jury as follows, consistent with CACI No. 472, entitled “Primary Assumption of Risk-Exception to Nonliability-… Event Sponsors”: “[Plaintiff] claims he was harmed while participating in a wheelchair race as part of [Defendant’s] Rock and Roll Marathon. To establish this claim, [Plaintiff] must prove all of the following: [¶] 1. That [Defendant] was the operator of the Rock and Roll Marathon; [¶] 2. That [Defendant] unreasonably increased the risks to [Plaintiff] over and above those inherent in the sport of wheelchair marathon racing[; ¶] 3. That [Plaintiff] was harmed; and [¶] 4. That [Defendant’s] conduct was a substantial factor in causing [Plaintiff’s] harm.” (Italics added.)

[ 16] As we introduced ante, the other two issues associated with the potential application of the doctrine of assumption of the risk-whether marathon wheelchair racing is “an active sport” and “the risks inherent in that sport”-are legal issues that are reviewed de novo. (Fazio, supra, 233 Cal.App.4th at p. 1061.) Although Defendant does not directly raise either of those issues in its appeal, we have no difficulty concluding that: Marathon wheelchair is an active sport; and turning a corner at too high a speed and running off the racecourse is a risk inherent in marathon wheelchair racing. In its reply brief, Defendant suggests that we apply a de novo standard of review because “this appeal involves a mixed question of law and fact.” We disagree that this appeal involves a mixed question. Each of the three issues under Fazio is decided and reviewed separately: two are issues of law, and one-i.e., whether the defendant increased the risks inherent in the sport-is an issue of fact. (Fazio, supra, 233 Cal.App.4th at pp. 1061-1063.) This appeal involves only the last issue, and as an issue of fact, it is reviewed on appeal for substantial evidence.

[ 17] In its reply brief, for the first time, Defendant “note[d]” that, in Fazio, supra, 233 Cal.App.4th 1053, “this court held that, in the summary judgment context, if there are disputed material facts, the jury will decide whether the defendant increased the inherent risk.” We agree that, if there are disputed material facts, then the jury must decide the factual dispute; and that is what happened in this case. Defendant then argues “that, after trial, if the case goes up on appeal, the appellate court is bound by the jury’s resolution of the factual disputes, but not by the jury’s determination that the defendant increased the inherent risk,” suggesting instead that “[t]he appellate court, based on the now-established facts, decides de novo whether the defendant increased the inherent risk.” Not only does Defendant fail to provide authority for its suggestion, in the context of the present appeal, the suggestion makes no sense. Here, the jury resolved the ultimate factual dispute-i.e., whether the defendant increased the inherent risk: “[Defendant] d[id] something or fail[ed] to do something that unreasonably increased the risks to [Plaintiff] over and above those inherent in marathon wheelchair racing.” As we ruled in Fazio: “[R]esolving the question of whether [the defendant] increased the risk of [the harm the plaintiff suffered] is properly decided by the trier of fact. This question… ‘requires application of the governing standard of care (the duty not to increase the [inherent risks]) to the facts of this particular case-the traditional role of the trier of fact.'” (Fazio, supra, 233 Cal.App.4th at pp. 1062-1063; italics and second and third brackets added.) For these reasons, we disagree with Defendant’s reply argument in support of de novo review.


What is a Risk Management Plan and What do You Need in Yours?

Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

 

                                             Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

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Can’t Sleep? Guest was injured, and you don’t know what to do? This book can answer those questions for you.

An injured guest is everyone’s business owner’s nightmare. What happened, how do you make sure it does not happen again, what can you do to help the guest, can you help the guests are just some of the questions that might be keeping you up at night.

This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.

This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.

You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.

                                      Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

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Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

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If you can see that you can get hurt and you admit that you saw and knew that you assume the risk of your injuries.

In this obstacle course race the plaintiff could see if she fell off the apparatus she would land on a road and could get hurt. She also admitted she undertook the climb of the apparatus voluntarily, so she lost her lawsuit.

Citation: Ramos, et al., Michael Epstein Sports Productions, Inc., et al, 2019 N.Y. App. Div. LEXIS 4964, 2019 NY Slip Op 04973, 2019 WL 2518539, 2019 N.Y. App. Div. LEXIS 4964

State: New York, Supreme Court of New York, Second Department

Plaintiff: Monica Ramos, et al.

Defendant: Michael Epstein Sports Productions, Inc., et al.

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: For the Defendant

Year: 2019

Facts

The plaintiffs commenced this action, inter alia, to recover damages for personal injuries allegedly sustained by the plaintiff Monica Ramos (hereinafter the injured plaintiff) while participating in an obstacle course race held at a public park in the Bronx. The event was organized and operated by the defendant Michael Epstein Sports Productions, Inc., and sponsored by the defendant Wolverine World Wide, Inc. The injured plaintiff allegedly fell when she was attempting to navigate the final portion of a rope obstacle called the “Monster Climb,” sustaining serious injuries.

The defendants moved for summary judgment dismissing the complaint on the basis that the action was barred by the doctrine of assumption of risk. In opposition, the plaintiffs argued that the assumption of risk doctrine cannot apply unless the sport or recreational activity takes place at a permanent, designated facility. They also argued that there were triable issues of fact as to whether the defendants unreasonably increased the risk of the Monster Climb obstacle by erecting it on a roadway without protective mats underneath it, by allowing an unlimited number of participants on the obstacle’s cargo nets at the same time, and by having staffers shout at the injured plaintiff to turn her body and hurry up.

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

The court started by explaining the Doctrine of Assumption of the Risk as applied in New York.

The “assumption of risk doctrine applies where a consenting participant in sporting and amusement activities ‘is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks'”. “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty”. Risks which are “commonly encountered” or “inherent” in a sport, as well as risks “involving less than optimal conditions,” are risks which participants have accepted and are encompassed by the assumption of risk doctrine. “It is not necessary . . . that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results”. A participant’s awareness of risk is “to be assessed against the background of the skill and experience of the particular plaintiff”

Then the court reviewed the plaintiff’s deposition where she stated.

She testified that she saw that there were no mats under the Monster Climb, knew that she could fall and be hurt, and knew that she did not have to attempt the obstacle, but decided to anyway.

The plaintiff argued the Doctrine of Assumption of the Risk only applied to permanent designated venues. The court quickly threw out this argument. The plaintiff also did not submit any evidence showing the defendant had concealed or increased the risk of the activity.

The plaintiff lost.

So Now What?

So why write about this case? Because it shows how you can win if you just don’t try and hide the risks of the activity. In most states Assumption of the Risk is a defense to a negligence claim second to that of a release. In 7-8 states it is the only difference to an outdoor recreation negligence claim. Meaning Assumption of the risk is a defense that is good in all 50 states.

In the majority of states, it is the only defense to a claim by a minor.

Consequently, you should always create a situation where your customers can see the risk in advance, understand the danger presented by the risk and as in this case, opt out of the risk if they want.

If you do that, you create a simply effective defense that results in a simply easy to defend case and a short-written decision from the court in your favor.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

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Author: Outdoor Recreation Insurance, Risk Management and Law

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Email: Jim@Rec-Law.US

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,

 


Ramos, et al., Michael Epstein Sports Productions, Inc., et al., 2019 N.Y. App. Div. LEXIS 4964, 2019 NY Slip Op 04973, 2019 WL 2518539, 2019 N.Y. App. Div. LEXIS 4964

Ramos, et al., Michael Epstein Sports Productions, Inc., et al., 2019 N.Y. App. Div. LEXIS 4964, 2019 NY Slip Op 04973, 2019 WL 2518539, 2019 N.Y. App. Div. LEXIS 4964

Monica Ramos, et al., appellants,

v.

Michael Epstein Sports Productions, Inc., et al., respondents.

Index No. 65423/15

No. 2018-02525

Supreme Court of New York, Second Department

June 19, 2019

Argued – March 15, 2019

D59831 G/htr

Michael Fuller Sirignano, Cross River, NY, for appellants.

Kowalski & DeVito (McGaw, Alventosa & Zajac, Jericho, NY [Andrew Zajac], of counsel), for respondents.

WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL FRANCESCA E. CONNOLLY ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Mary H. Smith, J.), dated November 29, 2017. The order granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiffs commenced this action, inter alia, to recover damages for personal injuries allegedly sustained by the plaintiff Monica Ramos (hereinafter the injured plaintiff) while participating in an obstacle course race held at a public park in the Bronx. The event was organized and operated by the defendant Michael Epstein Sports Productions, Inc., and sponsored by the defendant Wolverine World Wide, Inc. The injured plaintiff allegedly fell when she was attempting to navigate the final portion of a rope obstacle called the “Monster Climb,” sustaining serious injuries.

The defendants moved for summary judgment dismissing the complaint on the basis that the action was barred by the doctrine of assumption of risk. In opposition, the plaintiffs argued that the assumption of risk doctrine cannot apply unless the sport or recreational activity takes place at a permanent, designated facility. They also argued that there were triable issues of fact as to whether the defendants unreasonably increased the risk of the Monster Climb obstacle by erecting it on a roadway without protective mats underneath it, by allowing an unlimited number of participants on the obstacle’s cargo nets at the same time, and by having staffers shout at the injured plaintiff to turn her body and hurry up. The Supreme Court granted the defendants’ motion, and the plaintiffs appeal.

The “assumption of risk doctrine applies where a consenting participant in sporting and amusement activities ‘is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks'” (Bukowski v Clarkson Univ., 19 N.Y.3d 353, 356, quoting Morgan v State of New York, 90 N.Y.2d 471, 484; see Altagracia v Harrison Cent. Sch. Dist., 136 A.D.3d 848, 849). “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Bukowski v Clarkson Univ., 19 N.Y.3d at 356; see Falcaro v American Skating Ctrs., LLC, 167 A.D.3d 721, 722; Lee v Brooklyn Boulders, LLC, 156 A.D.3d 689, 690). Risks which are “commonly encountered” or “inherent” in a sport, as well as risks “involving less than optimal conditions,” are risks which participants have accepted and are encompassed by the assumption of risk doctrine (Bukowski v Clarkson Univ., 19 N.Y.3d at 356; see Bryant v Town of Brookhaven, 135 A.D.3d 801, 802). “It is not necessary . . . that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” (Siegel v Albertus Magnus High Sch., 153 A.D.3d 572, 574 [internal quotation marks omitted]; see Ferrari v Bob’s Canoe Rental, Inc., 143 A.D.3d 937, 938; Toro v New York Racing Assn., Inc., 95 A.D.3d 999, 1000). A participant’s awareness of risk is “to be assessed against the background of the skill and experience of the particular plaintiff” (Siegel v Albertus Magnus High Sch., 153 A.D.3d at 574 [internal quotation marks omitted]; see Ferrari v Bob’s Canoe Rental, Inc., 143 A.D.3d at 938; Bryant v Town of Brookhaven, 135 A.D.3d at 802).

Here, the defendants established their prima facie entitlement to judgment as a matter of law through the submission of the injured plaintiff’s deposition testimony. She testified that she saw that there were no mats under the Monster Climb, knew that she could fall and be hurt, and knew that she did not have to attempt the obstacle, but decided to anyway. Contrary to the plaintiffs’ contention, the assumption of risk doctrine is not limited to “[permanent, ] designated venues,” but may also be applied when a plaintiff assumes the risks of “sporting events” or “sponsored athletic and recreative activities” (Custodi v Town of Amherst, 20 N.Y.3d 83, 89).

The plaintiffs failed to raise a triable issue of fact in opposition. They submitted no evidence demonstrating that the injured plaintiff was subjected to “unassumed, concealed or unreasonably increased risks” (Bryant v Town of Brookhaven, 135 A.D.3d at 803 [internal quotation marks omitted]). In addition, the injured plaintiff’s affidavit presents a “feigned issue of fact, designed to avoid the consequences of her earlier deposition testimony” (Burns v Linden St. Realty, LLC, 165 A.D.3d 876, 877; see Odetalla v Rodriguez, 165 A.D.3d 826, 827; Meriweather v Green W. 57th St., LLC, 156 A.D.3d 875, 876), and is insufficient to defeat summary judgment.

Accordingly, we agree with the Supreme Court’s determination to grant the defendants’ motion for summary judgment dismissing the complaint.

The defendants’ alternative argument for affirmance has been rendered academic in light of our determination (see Palmieri v Town of Babylon, 167 A.D.3d 637, 641; Mason-Mahon v Flint, 166 A.D.3d 754, 759; Gentry v Mean, 166 A.D.3d 583, 584).

MASTRO, J.P., LEVENTHAL, CONNOLLY and IANNACCI, JJ., concur


A well-written release is not enough; you have to present it to the participant in a way that the participant knows what they are signing.

Then you have to present the information to the court, so the court clearly sees what the participant saw, same size, same way, same color.

Citation: Scotti and Russo v. Tough Mudder Incorporated and Tough Mudder Event Production Incorporated, 97 N.Y.S.3d 825, 63 Misc.3d 843

State: New York; Supreme Court of New York, Kings

Plaintiff: Richard E. Scotti and Joseph Russo

Defendant: Tough Mudder Incorporated and Tough Mudder Event Production Incorporated

Plaintiff Claims: Negligence

Defendant Defenses: Arbitration Agreement and Release

Holding: For the Plaintiff

Year: 2019

Summary

A release is not a piece of paper to be written on a whim and thrown on line. Here the court blasted the defendant because the release was presented on-line in a bad way, and it was presented in court in a worse way.

Releases, Indemnification Agreements, Arbitration Agreements, etc., must be noticed to the consumer. Meaning the consumer MUST understand they are signing a legal agreement, they have to them be used online in a way that the consumer or guest has no doubt that they are signing one, and you must be able to prove that.

Besides, New York does not allow the use of a release!

Facts

The plaintiffs were both injured in a Tough Mudder event on the salmon ladder. The plaintiff’s sued and the defendant Tough Mudder answered and filed this motion to compel arbitration. The release contained an arbitration clause.

The release signed by the participants was signed online. The participants went through a registration page, part of which was a window where the release was contained. To read the release, you had to scroll through the window separately from the rest of the page. The release was in a window in the page.

The defendant attempted to prove the release was valid by presenting an affidavit of the Manager of Customer relations and black-and-white copies of the page and a separate copy of the release. The court did not have a copy of the page as it was seen by the participants.

Below the box containing the scrollable PWCR was another box next to the statement: “I agree to the above waiver.” Best avers that it was necessary for the plaintiffs, or any other registrant, to click on the box to indicate his or her consent to the PWCR in order for the registrant to complete his or her registration for the TM Event. According to Best, the internet registration form cannot proceed to the payment page, and registration cannot be completed, until the registrant checks the box indicating his or her consent to the PWCR. She further avers that both plaintiffs did in fact click on the box indicating their consent to the PWCR, as otherwise they would not have been able to participate in the TM Event. Based upon the foregoing, Tough Mudder contends that the plaintiffs agreed to the terms of the on-line waiver, which included the arbitration clause and, therefore, are barred from pursuing the instant action

The box that held the release did not show the entire document unless the reader scrolled through the center window. What the court received in its copy of the page, obviously only showed the small part of the release that was visible when the page was printed.

The agreement was labeled:

ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND INDEMNITY AGREEMENT PARTICIPANTS: READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS

Not identified in the heading and located several pages into the release was an arbitration provision.

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

The judge shredded the defense in an efficient point by point denial of the defendant’s defenses for two reasons. They did a lousy job of setting up the documents to be signed online, and they did a worse job of presenting that information to the court.

The court first looked at the motion to compel arbitration. To compel arbitration the party wanting arbitration must:

It is well settled that “[a] party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties’ clear, explicit and unequivocal agreement to arbitrate”. When one party seeks to compel the other to arbitrate any disputes between them, the court must first determine whether the parties made a valid arbitration agreement. The party seeking arbitration bears the burden of establishing that an agreement to arbitrate exists

Whether or not the online agreement was valid is based on the specific facts of the situation.

The question of whether there is agreement to accept the terms of an on-line contract turns on the particular facts and circumstances. Courts generally look for evidence that a website user had actual or constructive notice of the terms by using the website. Where the person’s alleged consent is solely online, courts seek to determine whether a reasonably prudent person would be put on notice of the provision in the contract, and whether the terms of the agreement were reasonably communicated to the user

The court then went into an analysis of the four types of online consumer contracts: “(a) browsewrap; (b) clickwrap; (c) scrollwrap; and (d) sign-in-wrap.” Each type of agreement has different requirements to be valid.

Browsewrap exists where the online host dictates that assent is given merely by using the site. Clickwrap refers to the assent process by which a user must click “I agree,” but not necessarily view the contract to which she is assenting. Scrollwrap requires users to physically scroll through an internet agreement and click on a separate “I agree” button in order to assent to the terms and conditions of the host website. Sign-in-wrap couples assent to the terms of a website with signing up for use of the site’s services….

The court then found, because the defendants’ document was so bad, that this agreement was a clickwrap agreement. Since the printed copy of the webpage only showed a small part of the release, the court found it could only be a clickwrap agreement.

Here, the PWCR at issue appears to be a click-wrap agreement as identified in Berkson in that the clickable box is located directly below the scrollable text box that allegedly contained the full text of the agreement. Only by scrolling down in the text box would the user see all of the terms of the PWCR, including the arbitration clause at issue. However, the user could proceed to complete the registration process without necessarily scrolling down through the text box to view the full document, thereby rendering it a click-wrap agreement. At oral argument, counsel for defendants claimed that it was a scrollwrap agreement, as it was not possible to click “I agree” without scrolling through the agreement, but there is nothing in the record to support this claim.

For clickwrap agreements to be valid:

A party may be bound to a click wrap agreement by clicking a button declaring assent, so long as the party is given a “sufficient opportunity to read the … agreement, and assents thereto after being provided with an unambiguous method of accepting or declining the offer.”

“[a] court cannot presume that a person who clicks on a box that appears on a … screen has notice of all contents not only of that page but of other content that requires further action (scrolling, following a link, etc.) … The presentation of the online agreement matters: Whether there was notice of the existence of additional contract terms presented on a webpage depends heavily on whether the design and content of that webpage rendered the existence of terms reasonably conspicuous…. Clarity and conspicuousness of arbitration terms are important in securing informed assent.”

Thus, on a motion to compel arbitration, a valid agreement to arbitrate exists where the notice of the arbitration provision was reasonably conspicuous, and manifestation

The court simply found the “plaintiffs did not have actual notice of the arbitration provision at issue in this case.

As cited in a recent decision, Corwin v. NYC Bike Share, LLC, 238 F.Supp.3d 475 (S.D.N.Y. 2017) “a user’s clicking of a box is not, without more, sufficient to signal their assent to any contract term. The touchstone in most courts’ analysis of the enforceability of clickwrap contracts turns on whether the website provided ‘reasonably conspicuous notice that [users] are about to bind themselves to contract terms’ ”

For the online agreement to be valid, the agreement must:

First, terms of use should not be enforced if a reasonably prudent user would not have had at the very least inquiry notice of the terms of the agreement. Second, terms should be enforced when a user is encouraged by the design and content of the website and the agreement’s webpage to examine the terms, such as when they are clearly available through a hyperlink. Third terms should not be enforced when they are “buried at the bottom of a webpage or tucked away in obscure corners.”

The courts review of what was presented to the court was simple and a slam against the defendants.

Here, the court finds that Tough Mudder has failed to establish that the webpage, as it existed in 2016 when the plaintiffs registered for the TM Event, provided reasonable notice of the relevant term (the arbitration provision) of the PWCR. In fact, Tough Mudder has failed to set forth sufficiently detailed evidence as to how its on-line registration webpage appeared to the plaintiffs, or other users/registrants, during the relevant time period.

And then the court piled on the defense for doing a lousy job of presenting the information to the court.

In addition, the court notes that the purported copies of the plaintiffs’ respective on-line registration forms (screen shots) submitted by Tough Mudder (Exhibit D) are black and white copies of poor quality, the text of which is in an extremely small font size and is barely legible. Tough Mudder has not proffered any color copies of any screen shots depicting its on-line registration process.

The court stated the important sections of the agreement needed to be identified so anyone reading the agreement would understand the importance of those sections. The court pointed out the heading identified the agreement as a release, but did not identify the agreement as containing an arbitration clause.

The court then slammed the door shut on the release itself because it violated GOL § 5-326.

§ 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

The court threw out both the release, and the arbitration clause within the release. In a footnote, the court stated it’s holding was in line with other decisions.

[1] It seems defendants conduct similar events all over the United States. There are two other actions pending in Kings County Supreme Court against defendants, and in both actions, defendants motions to compel arbitration were denied, albeit on different grounds.

So Now What?

This was not a case where the court wanted to make sure the defendant lost. This was a case where the defendant did a lousy job.

Microsoft gets away with this type of release and online crap because they are offering contracts where damages are the contract value; what you are paying for the software.

When you are dealing with torts, where thousands or hundreds of thousands of dollars are on then a simple click or shrink wrap agreement will not suffice.

Create this page in such a way you can show it to the court.

Then have a click at the bottom that states the participant understands they are giving up certain legal rights. Then have the participant click to go to the payment page. The credit card information verifies the participant is who they say they are because of the credit card agreements.

Finally, when you send the person their receipt for signing up for the event, include a paragraph stating they also signed a release and possible a link to the release.

Quit hiding legal documents and put them out there and in front of your participants, guests and customers.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Do Releases Work? Should I be using a Release in my Business? Will my customers be upset if I make them sign a release?

These and many other questions are answered in my book Outdoor Recreation Risk Management, Insurance and Law.

Releases, (or as some people incorrectly call them waivers) are a legal agreement that in advance of any possible injury identifies who will pay for what. Releases can and to stop lawsuits.

This book will explain releases and other defenses you can use to put yourself in a position to stop lawsuits and claims.

This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.

This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.

You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.

                                              Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

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Artwork by Don Long donaldoelong@earthlink.net

 


Can’t Sleep? Guest was injured, and you don’t know what to do? This book can answer those questions for you.

An injured guest is everyone’s business owner’s nightmare. What happened, how do you make sure it does not happen again, what can you do to help the guest, can you help the guests are just some of the questions that might be keeping you up at night.

This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.

This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.

You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.

                                      Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

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What is a Risk Management Plan and What do You Need in Yours?

Everyone has told you, you need a risk management plan. A plan to follow if you have a crisis. You‘ve seen several and they look burdensome and difficult to write. Need help writing a risk management plan? Need to know what should be in your risk management plan? Need Help?

This book can help you understand and write your plan. This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you plan is a workable plan, not one that will create liability for you.

 

                                             Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

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Need a Handy Reference Guide to Understand your Insurance Policy?

This book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.

Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

             $99.00 plus shipping


The one group of people who never sign a release and to whom you have no defenses are spectators. Here a spectator was injured during a bicycle race.

In this case, the plaintiff attempted to bring in USA Cycling, Inc. Spectators are always at risk, and defendants have little they can do to keep from getting sued except fencing in most cases.

Levine v USA Cycling, Inc., 2018 N.Y. Misc. LEXIS 6063; 2018 NY Slip Op 33177(U)

State: New York: Supreme Court of New York, Kings County

Plaintiff: Steven Levine

Defendant: USA Cycling, Inc. & Kissena Cycling Club

Plaintiff Claims:

Defendant Defenses: Sponsor, now in control of event

Holding: For the defendants

Year: 2018

Summary

Plaintiff Cyclists riding inside the race course was injured when a racer struck him. The plaintiff sued the club that put on the event and USA Cycling, Inc. that sanctioned the event. USA Cycling moved for summary judgment arguing it owed no duty to the plaintiff because it had no control over and did not do anything other than sanction the race.

Facts

In the underlying matter, the plaintiff seeks to recover for personal injuries allegedly sustained while cycling in Prospect Park, Brooklyn, New York on June 14, 2014. At the same time the plaintiff was cycling as a recreational activity, a cycling event was taking place in the same area of Prospect Park. The plaintiff was cycling the same route as those participating in the event when he collided with another cyclist who was a participant in the bike race.

As a result of injuries sustained by the plaintiff, which included a fractured and displaced clavicle that required surgical intervention….

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

The defendant USA Cycling was brought into the case to possibly add money to the pot that might be available to the defendant. USA Cycling argued that because they did not own, control or have anything to do with the race other than to sponsor the race for a fee, they could not be held liable for anything that happened.

The court distilled the plaintiff’s claims and the defendant’s defenses into a single argument:

At issue in this matter, is whether defendant USA Cycling owed a duty to the plaintiff and by virtue thereof is liable to the plaintiff for the injuries sustained during the bike tour.

USA Cycling argued the following:

… USA Cycling did not coordinate the Prospect Park event; did not control or employ any of the people organizing or managing or working the race; did not select the location of the race nor supervise the race. They did not have any employees or representatives at the race. In addition, they are not the parent company of Kissena Cycling Club nor is Kissena Cycling Club a subsidiary of USA Cycling.

Mr. Sowl testified at his deposition that while USA Cycling sanctions events in the United States they do not run cycling events. Mr. Sowl stated that while there are benefits to a third party such as Kissena Cycling Club for having an event sanctioned by USA Cycling which includes that a cyclist participating in the event can use the results for upgrading their national results and rankings and the third-party event organizers can independently obtain liability insurance for their event through USA Cycling, he nevertheless maintained that they have no involvement in the operation of the race or the design of the course.

It USA Cycling did not owe the defendant a duty, then there was no negligence. The court defined negligence under New York law as:

To establish a prima facie case of negligence, a plaintiff must demonstrate (a) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. In the absence of a duty, there is no breach and without a breach there is no liability

So, the issue is, did USA Cycling’s involvement in the race rise to the level that it owed a duty to the plaintiff.

The plaintiff argued the involvement was much more than just providing insurance for the race.

They [USA Cycling] collect some fees to compensate for sanctioning the event and provide insurance for the event.

The plaintiff maintains that the defendant did more than just sanction the race as they issued safety guidelines, rule books, post event forms, permits, an event checklist and insurance information to the Kissena Cycling Club, and even received a copy of the incident report.

The court found the actions of USA Cycling did not rise to the level to create a duty to the plaintiff.

USA Cycling is the national governing body for cycling in the United States. They oversee the discipline of road, mountain bike, Cyc-cross, BMS and track cycling. Mr. Sowl testified that except for a few national championships, they do not actually run events. While they sanction events, the events are generally owned and operated by a third party (such as the Kissena Cycling Club). In sanctioning the race at Prospect Park, USA Cycling recognized the event as an official event and the results when considering national rankings. However, while they sanction events they do not sponsor them. The chief referee at the event is an independent contractor who works for the event organizer and not USA Cycling. Mr. Sowl further testified that USA Cycling does not share in any portion of the fees that are generated by the local events.

The court found USA Cycling had no control over the race. This lack of control could not create a duty to the plaintiff.

This Court finds that the plaintiff has not established a prima facie case that the defendant USA Cycling had a duty to the plaintiff, and not having a duty was not negligent, and thus, not liable to the plaintiff. This Court finds that USA Cycling was not responsible for the layout and design of the race course, and all of the safety precautions that were in place on the day of the race were supervised by the employees and volunteers of Kissena Cycling Club. USA Cycling had no involvement in the positioning of the plaintiff, who was a recreational cyclist, and the riders in the race. The fact that USA Cycling sanctioned the race, provided safety guidelines on its website and assisted the local race organizers in obtaining insurance does not result in a finding that they are liable for an incident that occurred in a local race that is fully operated and managed by a local racing club.

So Now What?

Spectators are necessary to any event. They “pay” for the event by either just being there so advertisers can sell to them or paying to enter the facility. Although the facts in this case are slightly different, other cyclists riding, the issues are still the same. Spectators are not a group of people that the event sponsors, owners; officials can create protection from litigation.

If a spectator gets hurt, there is little available to stop their claims.

Here the news was that USA Cycling had so little involvement in the race, they were able to successfully argue they owed no duty to the plaintiff. This argument is similar in all states; however, the definition of duty in each state and the type of involvement could make this difficult in some jurisdictions.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn




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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,

Cycling, sanctioned, organizer, summary judgment, deposition, duty to plaintiff, participants, recreation, supervise, injuries, signs,


Levine v USA Cycling, Inc., 2018 N.Y. Misc. LEXIS 6063 *; 2018 NY Slip Op 33177(U)

Levine v USA Cycling, Inc., 2018 N.Y. Misc. LEXIS 6063 *; 2018 NY Slip Op 33177(U)

Supreme Court of New York, Kings County

December 4, 2018, Decided

515257/15

Reporter

2018 N.Y. Misc. LEXIS 6063 *; 2018 NY Slip Op 33177(U) **

[**1] STEVEN LEVINE, Plaintiff(s), -against-USA CYCLING, INC. & KISSENA CYCLING CLUB, INC., Defendant(s). Index No: 515257/15

Notice: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

Core Terms

Cycling, sanctioned, organizer, summary judgment, deposition, duty to plaintiff, participants, recreation, supervise, injuries, signs

Judges: [*1] Present: Hon. Judge Bernard J. Graham, Supreme Court Justice.

Opinion by: Bernard J. Graham

Opinion

DECISION / ORDER

Defendant, USA Cycling, Inc. (“USA Cycling”) has moved, pursuant to CPLR §3212, for an Order awarding summary judgment to the defendant and a dismissal of the plaintiff’s, Steven Levine, (“Mr. Levine”) complaint upon the grounds that the defendant was not negligent, and thus not liable for plaintiff’s injuries as they owed no duty to the plaintiff. The plaintiff opposes the relief sought by the defendant, USA Cycling, and maintains that the latter was negligent in that they had a greater involvement than just sanctioning the race in which the plaintiff was injured, and they failed to properly supervise, maintain and control the race in which the plaintiff who was not a participant in the race was seriously injured.

[**2] Background:

In the underlying matter, the plaintiff seeks to recover for personal injuries allegedly sustained while cycling in Prospect Park, Brooklyn, New York on June 14, 2014. At the same time the plaintiff was cycling as a recreational activity, a cycling event was taking place in the same area of Prospect Park. The plaintiff was cycling the same route as those participating in the event [*2] when he collided with another cyclist who was a participant in the bike race.

As a result of injuries sustained by the plaintiff, which included a fractured and displaced clavicle that required surgical intervention, an action was commenced on behalf of the plaintiff by the filing of a summons and complaint on or about December 21, 2015. Issue was joined by the service of a verified answer by USA Cycling on or about March 15, 2016. The plaintiff served a response to defendant’s Demand for a Verified Bill of Particulars dated March 24, 2016. Depositions of the plaintiff, as well as Todd Sowl, the chief financial officer of USA Cycling, were conducted on September 27, 2016.

In October 2016, the plaintiff moved to amend their complaint to add Kissena Cycling Club Inc., (“Kissena Cycling Club”) as an additional defendant. Kissena Cycling Club did not appear nor answer the complaint, but a default judgment had not been sought against said party.

In April 2017, plaintiff commenced a separate action against Kissena Cycling Club under index # 507066/2017. Plaintiff then filed a Note of Issue in the underlying action on July 25, 2017.

Defendant’s contention (USA Cycling, Inc.):

The defendant, in [*3] moving for summary judgment and a dismissal of the plaintiff’s complaint, maintains that the relief sought herein should be granted because in the absence of a [**3] duty to the plaintiff there cannot be a breach and without a breach they cannot be liable for negligence.

The defendant maintains that USA Cycling merely sanctioned the event that was run by Kissena Cycling Club. They issued a permit to allow Kissena Cycling Club to use the name of USA Cycling during the event.

Defendant asserts that there is no evidence to support an argument as to the existence of a principal-agent relationship between USA Cycling and Kissena Cycling Club nor was there any evidence of control by USA Cycling or consent by USA Cycling to act on its behalf. In addition, there is no written agreement between the two entities.

In support of defendant’s motion, is the affidavit of Todd Sowl in which he stated that USA Cycling did not coordinate the Prospect Park event; did not control or employ any of the people organizing or managing or working the race; did not select the location of the race nor supervise the race. They did not have any employees or representatives at the race. In addition, they are not the parent [*4] company of Kissena Cycling Club nor is Kissena Cycling Club a subsidiary of USA Cycling.

Mr. Sowl testified at his deposition that while USA Cycling sanctions events in the United States they do not run cycling events. Mr. Sowl stated that while there are benefits to a third party such as Kissena Cycling Club for having an event sanctioned by USA Cycling which includes that a cyclist participating in the event can use the results for upgrading their national results and rankings and the third-party event organizers can independently obtain liability insurance for their event through USA Cycling, he nevertheless maintained that they have no involvement in the operation of the race or the design of the course.

[**4] Plaintiff’s contention:

In opposing the motion of USA Cycling for summary judgment, plaintiff maintains that USA Cycling was sufficiently involved with the cycling event that caused plaintiff’s injuries that would result in their owing a duty to the plaintiff. Plaintiff contends that USA Cycling was negligent in their failure to properly operate, supervise, maintain, manage and control the bicycle race.

The plaintiff asserts that USA Cycling by its chief operating officer, Mr. Sowl, [*5] in both his deposition and his supporting affidavit stated that his organization sanctioned the cycling event in Prospect Park. They collect some fees to compensate for sanctioning the event and provide insurance for the event.

The plaintiff maintains that the defendant did more than just sanction the race as they issued safety guidelines, rule books, post event forms, permits, an event checklist and insurance information to the Kissena Cycling Club, and even received a copy of the incident report.

The plaintiff asserts that negligence cases by their very nature do not lend themselves to summary dismissal since the issue of negligence is a question for jury determination. The plaintiff maintains that the proof submitted by USA Cycling does not satisfy their initial burden of establishing the absence of a material issue of fact.

Discussion:

This Court has considered the submissions of counsel’ for the respective parties, the arguments presented herein, as well as the applicable law, in making a determination with respect to the motion by defendant, USA Cycling, for summary judgment and a dismissal of plaintiff’s action.

[**5] At issue in this matter, is whether defendant USA Cycling owed a duty [*6] to the plaintiff and by virtue thereof is liable to the plaintiff for the injuries sustained during the bike tour.

The moving party in a motion for summary judgment bears the initial burden of demonstrating a prima facie entitlement to judgment as a matter of law by submitting sufficient evidence to demonstrate the absence of any material issue of fact (Drago v. King, 283 AD2d 603, 725 NYS2d 859 [2nd Dept. 2001]).

In support of USA Cycling’s motion for summary judgment, the defendant offers the deposition testimony of Todd Sowl, as well as Charles Issendorf, the event director of Kissena Sports Project Inc. d/b/a Kissena Cycling Club, who was deposed on June 14, 2018 in the related action, as well as case law which examined whether a party under similar circumstances would have been found to be negligent and thus liable to an injured party.

To establish a prima facie case of negligence, a plaintiff must demonstrate (a) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom (Akins v Glens Falls City School Dist., 53 N.Y.2d 325, 333, 424 N.E.2d 531, 441 N.Y.S.2d 644 [1981]. In the absence of a duty, there is no breach and without a breach there is no liability (see Light v. Antedeminico, 259 A.D.2d 737, 687 N.Y.S.2d 422; Petito v. Verrazano Contr. Co., 283 A.D.2d 472, 724 N.Y.S.2d 463 [2nd Dept. 2001]).

In determining whether USA Cycling had a duty to the plaintiff, this Court examined the role of USA Cycling and specifically [*7] its involvement in this race, as well as that of the Kissena Cycling Club. The Court further considered the deposition testimony of Todd Sowl as well as Charles Issendorf.

USA Cycling is the national governing body for cycling in the United States. They oversee the discipline of road, mountain bike, Cyc-cross, BMS and track cycling. Mr. Sowl testified that except for a few national championships, they do not actually run events. While [**6] they sanction events, the events are generally owned and operated by a third party (such as the Kissena Cycling Club). In sanctioning the race at Prospect Park, USA Cycling recognized the event as an official event and the results when considering national rankings. However, while they sanction events they do not sponsor them. The chief referee at the event is an independent contractor who works for the event organizer and not USA Cycling. Mr. Sowl further testified that USA Cycling does not share in any portion of the fees that are generated by the local events.

This lack of control over the event by USA Cycling and by contrast the control exhibited by the Kissena Cycling Club is further demonstrated through the deposition testimony of Charles Issendorf. [*8] Mr. Issendorf as the race director for Kissena Cycling Club has been organizing races for fourteen years. Mr. Issendorf characterized his club as more of a social club where its members race together. There are generally thirty races conducted between the months of March and September with the venues being in both Prospect Park and Floyd Bennett Field which is also situated in Brooklyn, New York. Mr. Issendorf testified that he obtains the permit for the subject race directly from the representatives of Prospect Park. Mr. Issendorf is instructed to have certain safety measures implemented at all races. He sets up the course by putting out the safety measures which includes the safety signs that are needed for the race. He also organizes the race marshals, and the pace and follow motorcycles to ensure that there is a motorcycle in both the front and back of each group.1 Mr. Issendorf further testified that Prospect Park has rules in terms of the placement of safety cones and signs that are needed, as well as the race marshals. Kissena Cycling club provides what could be characterized as “lawn signs” and Mr. Issendorf personally places these signs in the grass along the bike route. There [*9] are also traffic safety cones throughout the course that contain a sign which bear the words “caution, bicycle [**7] race”, that are placed there by Mr. Issendorf. The signs are generally situated one hundred meters apart and they are placed at crosswalks, entrances to the park, as well as at high traffic areas where there is a concentration of people. As to the course, the two lanes to the right of a double white line is where the participants are allowed to race. To the left of the double white line is the location of the pedestrian or the recreation lane. There are written instructions on the website of the club which states that at all times the participants are not allowed to enter the pedestrian or recreation lane. The race organizers also make use of a portable PA system at the race in which the chief referee warns the riders to stay to the right of the white right lane, and if they were to cross into the recreation lane it would result in their disqualification.

This Court finds that while USA Cycling sanctioned the race of June 14, 2014, the plaintiff has not sufficiently refuted the assertion and proof offered by USA Cycling that the latter did not organize, direct, control, supervise [*10] or select the venue nor did they have any employees or agents at the cycling event, and thus, had no duty to the plaintiff. Courts have addressed situations that are akin to the case at bar. The Court in Chittick v. USA Cycling Inc., 54 AD3d 625, 863 NYS2d 679 [1st Dept. 2008]), in finding that an award of summary judgment and a dismissal of the action against USA Cycling was warranted, in which spectators were injured during a bicycle race when struck by the rear pace vehicle, determined that USA Cycling had no duty to prevent any negligence involved therein. The Court in Chittick determined that USA Cycling merely sanctioned the race by lending its name to the race. The fact that USA Cycling provided the rule book to the organizer of the race did not impose a duty upon them to enforce any of the rules thereon. There was also no inference drawn as to the existence of a principal-agency relationship between USA Cycling and the race organizer.

[**8] The Court in Megna v. Newsday, Inc., 245 AD2d 494, 666 NYS2d 718 [2nd Dept. 1997], in granting summary judgment to the defendant, determined that the defendant merely sponsored the race in which the injured plaintiff had participated. It was determined that the defendant owed no duty of care to the plaintiff as the defendant was not in any way involved in the design, layout, maintenance [*11] or control of the race course, and was not in a position to assume such control (see also Mongello v. Davos Ski Resort, 224 A.D.2d 502, 638 N.Y.S.2d 166 [2nd Dept. 1966]; Johnson v. Cherry Grove Island Management Inc., 175 AD2d 827, 573 NYS2d 187 [2nd Dept. 1991]).

This Court finds that the plaintiff has not established a prima facie case that the defendant USA Cycling had a duty to the plaintiff, and not having a duty was not negligent, and thus, not liable to the plaintiff. This Court finds that USA Cycling was not responsible for the layout and design of the race course, and all of the safety precautions that were in place on the day of the race were supervised by the employees and volunteers of Kissena Cycling Club. USA Cycling had no involvement in the positioning of the plaintiff, who was a recreational cyclist, and the riders in the race. The fact that USA Cycling sanctioned the race, provided safety guidelines on its website and assisted the local race organizers in obtaining insurance does not result in a finding that they are liable for an incident that occurred in a local race that is fully operated and managed by a local racing club.

Conclusion:

The motion by defendant, USA Cycling, Inc. for summary judgment and a dismissal of plaintiff’s complaint is granted.

[**9] This shall constitute the decision and order of this Court.

Dated: December 4, 2018 [*12]

Brooklyn, New York

ENTER

/s/ Bernard J. Graham

Hon. Bernard J. Graham, Justice

Supreme Court, Kings County


Each state had its landmines on how releases are to be written

In several states, New York as in this case, the land mines might be too many and other options should be explored.

A Tough Mudder event used a release in NY that required arbitration. The Release was thrown out by the court, consequently the requirement for arbitration was thrown out.

Arbitration works to reduce damages; however, you should only use an arbitration clause when you can’t win because you don’t have a release. In every other state other than NY, the arbitration clause might have been a worse decision.

Isha v. Tough Mudder Incorporated d/b/a/ Urban Mudder, 2018 N.Y. Misc. LEXIS 4883; 2018 NY Slip Op 32743(U)

State: New York, Supreme Court of New York, Kings County

Plaintiff: Isha

Defendant: Tough Mudder Incorporated d/b/a/ Urban Mudder

Plaintiff Claims: Negligence

Defendant Defenses: Contract

Holding: For the Plaintiff

Year: 2018

Facts

The plaintiff was injured in an Urban Mudder event, which appears to be something like a Tough Mudder but in a city? Other than that, there are no facts in the decision.

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

The defendant motioned to have the dispute arbitrated because the contract, the release, required arbitration.

Defendant contends that this dispute should be arbitrated pursuant to the contract be-tween the parties. Typically, arbitration clauses in contracts are regularly enforced and encouraged as a matter of public policy

The plaintiff argued that arbitration was invalid because a NY statute prohibits arbitration of consumer contracts.

Plaintiff further argues that the contract cannot be admitted into evidence pursuant to CPLR 4544 because it involves a consumer transaction and the text of the contract is less than 8-point font. In support of this argument, plaintiff submits the affidavit of Vadim Shtulboym, a paralegal in plaintiff counsel’s office. Mr. Shtulboym states that, based on his work experience, he has determined, with the aid of a scanner and Abobe Acrobat Reader DC, that the contract between the parties is 7-point font. Mr. Shtulboym explains that he came to this conclusion by typing words in 8-point font and 6-point font, and comparing them to the text of the contract, the size of which appeared to be in between the two fonts.

Plaintiff also argued the contract was void because it violated NY Gen. Oblig Law § 5-326.

§ 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.

The court found contract violated NY Gen. Oblig Law § 5-326 and was thrown out by the court. Once the agreement was thrown out in its entirety, the arbitration clause was also thrown out.

Two different statutes took the only defenses outside of assumption of the risk and through them out the door.

The court found because there was a dispute, a triable issue of fact, the motion to dismiss failed and the parties would proceed to trial on this fact alone. The size of the type font on the agreement was enough to throw the defendant into the courtroom.

So Now What?

When you have a release, in a state where releases are valid, arbitration clauses usually create a better position for the plaintiff. Most arbitrations do not allow the award of punitive damages or any special damages unless specifically allowed in a statute. However, most arbitrations split the middle and award damages to the plaintiff.

A well written release in a state where releases are upheld the plaintiff gets nothing, or less.

However, in a state like New York or the other states that do not support the use of a release, (See States that do not Support the Use of a Release), you must use an assumption of risk clause. Assumption of the risk is a defense in most states, again, for sporting and recreational activities. An assumption of the risk agreement does not run afoul of any statute that I have discovered or been made aware of and also works for minors who can understand the agreement and the risk.

Assumption of risk clauses can also contain arbitration clauses. When faced with a situation where you do not have the option of using a release, an assumption of the risk clause with an arbitration clause is your best defense position.

Typeface? If the judge can’t read it, your typeface is too small. Always use typeface in your release that is at least 10 pt. and may be larger. Small type face has been a joke for decades in dealing with the fine print in contracts. It is not a reality.

What do you think? Leave a comment.

Copyright 2018 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

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By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,

 


Isha v. Tough Mudder Incorporated d/b/a/ Urban Mudder, 2018 N.Y. Misc. LEXIS 4883; 2018 NY Slip Op 32743(U)

Isha v. Tough Mudder Incorporated d/b/a/ Urban Mudder, 2018 N.Y. Misc. LEXIS 4883; 2018 NY Slip Op 32743(U)

[**1] Isha, Plaintiff, against Tough Mudder Incorporated d/b/a/ Urban Mudder, Defendant. Index Number 512947/2016

512947/2016

SUPREME COURT OF NEW YORK, KINGS COUNTY

2018 N.Y. Misc. LEXIS 4883; 2018 NY Slip Op 32743(U)

September 21, 2018, Decided

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

JUDGES: [*1] DEVIN P. COHEN, Acting Justice, Supreme Court.

OPINION BY: DEVIN P. COHEN

OPINION

DECISION/ORDER

Upon the foregoing papers, defendant’s motion to compel arbitration and plaintiff’s cross-motion for an order denying defendant’s motion and invalidating the Waiver Agreement between the parties, is decided as follows:

Plaintiff brings this action against defendant seeking damages for injuries she sustained when she participated in defendant’s “Urban Mudder” event. Defendant contends that this dispute should be arbitrated pursuant to the contract between the parties. Typically, arbitration clauses in contracts are regularly enforced and encouraged as a matter of public policy (159 MP Corp. v Redbridge Bedford, LLC, 160 AD3d 176, 205, 71 N.Y.S.3d 87 [2d Dept 2018]). Defendant provides a copy of the contract, which states that all disputes between the parties shall be submitted to binding arbitration with the American Arbitration Association.

Plaintiff argues the arbitration contract is invalid pursuant to GBL § 399-c, which prohibits mandatory arbitration in consumer contracts. Defendant contends that the Federal Arbitration Act preempts GBL § 399-c because defendant’s business is involved in interstate commerce (Marino v Salzman, 51 Misc 3d 131[A], 36 N.Y.S.3d 48, 2016 NY Slip Op 50410[U], *1 [App Term, 2d Dept 2016] [**2] ; Ayzenberg v Bronx House Emanuel Campus, Inc. (93 AD3d 607, 608, 941 N.Y.S.2d 106 [1st Dept 2012]). However, defendant provides no evidence from someone with personal knowledge [*2] of this factual claim (cf Marino, 51 Misc 3d 131[A], 36 N.Y.S.3d 48, 2016 NY Slip Op 50410[U], *1 [holding that the FAA preempted GBL § 399-c in that case because an employee of defendant submitted an affidavit wherein he stated that defendant was a multi-state company with business in several states]). Accordingly, defendant has not established that the FAA applies and, as a result, whether the arbitration provision is enforceable here.

Plaintiff further argues that the contract cannot be admitted into evidence pursuant to CPLR 4544 because it involves a consumer transaction and the text of the contract is less than 8-point font. In support of this argument, plaintiff submits the affidavit of Vadim Shtulboym, a paralegal in plaintiff counsel’s office. Mr. Shtulboym states that, based on his work experience, he has determined, with the aid of a scanner and Abobe Acrobat Reader DC, that the contract between the parties is 7-point font. Mr. Shtulboym explains that he came to this conclusion by typing words in 8-point font and 6-point font, and comparing them to the text of the contract, the size of which appeared to be in between the two fonts.

In opposition, defendant submits the affidavit of Johnny Little, the Director of Course and Construction with defendant, who states [*3] that the font used in the contract was 8-point, Times New Roman. Mr. Rosen further states that defendant forwarded a draft of the contract, in Microsoft Word format, to be professionally printed for the event, without any reduction in font size. Accordingly, there is a triable issue of fact as to whether the document is 8-point font.

Finally, plaintiff argues that the waiver of liability clause in her contract with defendant is void because violates N.Y. Gen. Oblig. Law § 5-326, which prohibits contracts between the “owner or operator of [**3] any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities” from exempting such owner or operator from “liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment”. Plaintiff does not object to the substance of any other portion of the contract.

Defendant contends that the Urban Mudder event is not a place of amusement or recreation. While the statute does not define these terms, courts have applied them to a range of activities, such as rock climbing (Lee v Brooklyn Boulders, LLC, 156 AD3d 689, 690, 67 N.Y.S.3d 67 [2d Dept 2017]), motocross (Sisino v Is. Motocross of New York, Inc., 41 AD3d 462, 463, 841 N.Y.S.2d 308 [2d Dept 2007]), automobile racing (Knight v Holland, 148 AD3d 1726, 1727, 51 N.Y.S.3d 749 [4th Dept 2017]), sky diving (Nutley v SkyDive the Ranch, 65 AD3d 443, 444, 883 N.Y.S.2d 530 [1st Dept 2009]), spa activities (Debell v Wellbridge Club Mgt., Inc., 40 AD3d 248, 250, 835 N.Y.S.2d 170 [1st Dept 2007]), and horseback riding (Filson v Cold Riv. Trail Rides Inc., 242 AD2d 775, 776, 661 N.Y.S.2d 841 [3d Dept 1997]).

Defendant’s attempt [*4] to distinguish the Urban Mudder event from these activities is unavailing. As an initial matter, defendant counsel’s description of the event holds no evidentiary value, as counsel does not establish his personal knowledge of these events. Secondly, even if this court were to accept counsel’s description, the event’s “rigorous” and “athletic” nature is no different than the other activities listed above. Furthermore, counsel’s assertion that these other applicable activities did not require “physical preparation” is simply baseless. Accordingly, this court finds that the contract’s waiver of negligence liability violates N.Y. Gen. Oblig. Law § 5-326.

[**4] For the foregoing reasons, defendant’s motion to compel arbitration is denied and plaintiff’s cross-motion is granted to the extent that the contract’s waiver of negligence liability is deemed void.

This constitutes the decision and order of the court.

September 21, 2018

DATE

/s/ Devin P. Cohen

DEVIN P. COHEN

Acting Justice, Supreme Court


Have you ever read your insurance policy? You should! The one at issue in this case specifically excluded the risks the policy was bought to cover.

An event organizer of a 5K Extreme Rampage purchased an insurance policy that specifically excluded coverage for a 5K run with obstacles, mud runs and tough-guy races.

Johnson v. Capitol Specialty Ins. Corp., 2018 Ky. App. Unpub. LEXIS 447

State: Kentucky, Court of Appeals of Kentucky

Plaintiff: Chris Johnson D/B/A Extreme Rampage, and Chris Johnson, and Christopher Johnson, Rampage LLC, Christopher Johnson D/B/A Rampage, LLC, and/or Extreme Rampage, Casey Arnold, Individually and as Administratrix Of the Estate of Chad Arnold, and as Next Friend and Guardian/ Conservator for Miles Arnold, and as Assignee for All Claims Held By “The Johnson Parties

Defendant: Capitol Specialty Insurance Corporation

Plaintiff Claims: negligence; violation of the Kentucky Consumer Protection Act and the Unfair Claims Settlement Practices Act; fraud; and breach of contract

Defendant Defenses:

Holding:

Year: 2018

Summary

Insurance litigation about a claim for an event, service, trip or liability is much costlier and time-consuming than any litigation concerning an injury.

In this case, the event owner and organizer of a mud run obstacle course in Kentucky purchased insurance for the event, which excluded all coverage needed for the event. Effectively, the plaintiff in this case paid for paper that had no value.

The trial courts and the appellate court agreed with the insurance company because the exclusions were in the policy that was available to the insured prior to the event.

Facts

The plaintiff in this appeal created an owned a mud run obstacle course the Extreme Rampage. Johnson the individual created Extreme Rampage LLC, which then organized and ran the event.

The event was a 3K obstacle race, similar if not identical to mud runs, death races, etc., The race was to be held at the Kentucky Horse Park. The horse park required a $1 million-dollar policy covering them.

Johnson contacted an insurance agent over the phone who completed an application and sent it off. A quote was received and accepted. The cost was $477.00, which should have been the first clue; it was too cheap. The only part of the application or proposal that Johnson saw was the “subjectivities page” which stated the policy was to be issued after a list of things were verified. The items to be verified list things as rallies, cattle drives, etc., but did not list obstacle course, running events or the like.

When the policy was issued it contained two exclusions. The first was labeled the sponsor exclusion by the court and stated:

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY

EXCLUSION — ATHLETIC OR SPORTS PARTICIPANTS

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART.

SCHEDULE

Description of Operations:

Special event — 5K run with obstacles.

. . .

With respect to any operations shown in the Schedule, this insurance does not apply to “bodily injury” to any person while practicing for or participating in any sports or athletic contest or exhibition that you sponsor.

And the second exclusion labeled by the court as the participant exclusion provided as follows:

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY EXCLUSION — PARTICIPANTS

(SPECIFIED ACTIVITIES/OPERATIONS)

SCHEDULE

Descriptions of Activity/Operations

Mud Runs and Tough Guy Races

This insurance does not apply to “bodily injury,” “property damage,” “personal or advertising injury” or medical expense arising out of any preparation for or participation in any of the activities or operations shown in the schedule above.

During the race, one of the participants collapsed and died. His wife sued. The insurance company denied coverage. That means the insurance company was not only not going to pay the claim, they were not going to pay for attorneys to defend the case.

The Insurance Company filed a declaratory action. This lawsuit was between Johnson, the policyholder and the insurance company where the insurance company was looking for a ruling stating it had no duty to provide coverage. This is a request for immediate decision from the court on the interpretation of the policy.

Johnson, the insured and Arnold the family of the deceased participant both filed suit against the insurance company. The trial court combined the two lawsuits into one. Both filed motions for summary judgment and the insurance company filed its motion for summary judgment.

After reading the exclusions, the policy only covered spectators at the event. The spectators had to be 100′ from the event so any spectator injured that was closer than 100′ to the event could sue, and Johnson would have no coverage for that claim either. Basically, the policy was a worthless piece of paper for the event.

The trial court granted the insurance companies motion for summary judgment, and this appeal ensued. Both Johnson and the Arnold family appealed.

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

Insurance policies have their own set of laws. Even though they are contracts, after the contract is formed, new ways of interpreting a policy are created.

One such rule is any ambiguity in the policy will be ruled or interpreted against the insurance company. Since policies are presented as a take it or leave it contract, any mistakes in the contract are ruled so the policy holder wins.

The first claim is a quasi-fraud claim based on the lack of information concerning the exclusions. The court looked at this more as a situation where the event organizer did not read the policy.

Johnson cannot avoid the terms of the insurance contract by pleading ignorance of its contents. It is axiomatic that “insured persons are charged with knowledge of their policy’s contents.

Because Johnson signed the policy (? Application not the policy, in reality) Johnson was held to the terms of the policy.

Although Johnson claims, based on his interaction with Delre, that the terms of the policy were not what he had anticipated, no genuine issue of material fact exists that Johnson signed the policy and, as a matter of law, was presumed to know its contents.

The next argument was the insurance agent the event organizer worked with was an agent of the insurance company Capitol. As such, the agents could be liable and the agents could create liability for Capitol. An agency is created when the principal, the insurance company, grants specific authority to the agent.

“Actual authority arises from a direct, intentional granting of specific authority from a principal to an agent.” The Restatement (Third) of Agency § 2.02(1) (2006) provides that “[a]n agent has actual authority to take action designated or implied in the principal’s manifestations to the agent and acts necessary or incidental to achieving the principal’s objectives, as the agent reasonably understands the principal’s manifestations and objectives when the agent determines how to act.”

However, there was no evidence in the record to show any agency between the insurance sales person and the insurance company, even though the sales person is called an agent.

The next argument was over the language in the policy. The event organizer argued the exclusion should not apply because the term “sponsor” was ambiguous.

Exclusions in insurance contracts are to be narrowly interpreted, and all questions resolved in favor of the insured. Exceptions and exclusions are to be strictly construed so as to render the insurance effective. Any doubt as to the coverage or terms of a policy should be resolved in favor of the insured. And since the policy is drafted in all details by the insurance company, it must be held strictly accountable for the language used.

After narrowly interpreting the policy, any ambiguity in the language of the policy must be interpreted in favor of the policy holder and against the insurance company.

…[t]he rule of strict construction against an insurance company certainly does not mean that every doubt must be resolved against it and does not interfere with the rule that the policy must receive a reasonable interpretation consistent with the parties’ object and intent or narrowly expressed in the plain meaning and/or language of the contract. Neither should a nonexistent ambiguity be utilized to resolve a policy against the company. We consider that courts should not rewrite an insurance contract to enlarge the risk to the insurer.

However, the court found the term in this case, was not ambiguous.

The event organizer then argued that the Concurrent Proximate Cause Doctrine should apply in this case. The concurrent proximate cause doctrine holds that when an insured event flows from an insured event, the protection afforded by the insurance policy flows with to the new event.

Where the loss is essentially caused by an insured peril with the contribution of an excluded peril merely as part of the chain of events leading to the loss, there is coverage under the policy. Stated alternately, coverage will exist where a covered and noncovered peril join to cause the loss provided that the covered peril is the efficient and dominant cause.

The court found that there was no insured event to begin with so nothing could “flow” to the uninsured event.

The appellate court upheld the motion in the declaratory action by the trial court stating the insurance company Capitol had no duty to defend the event organizer Johnson and thus any liability to the Arnold family.

So Now What?

This is simple. You MUST do the following things if you are the owners, sponsor, organizer or insured with an insurance policy.

  1. Read it
  2. Understand it
  3. Make sure it covers what you need it to cover.
  4. Find an agent who understands what you need and can communicate that to all the insurance companies he may be working with.
    1. If that means getting the insurance company out from behind their desk and down the river, to an event, or in your factory do that.
  5. Always confirm in writing or electronically that the coverage you requested and need is covered in the policy you are purchasing.
  6. Ask to see the policy and any exclusions, prerequisites or other requirements before paying for it. Once you open your wallet, you won’t get your money back.
  7. If the price of the policy is too good to be true, start investigating. On average a policy should cost $5 to $10 per person per day for outdoor recreation coverage. That amount is the bottom line and can go beyond that. If you are purchasing a policy at 1980 prices $2.00 per person per day, you are buying worthless paper.

You cannot be in business without an insurance policy. Contrary to popular believe, insurance policies do not attract lawsuits. How do people know if you are insured? If they do not know you are insured, how can someone decided to sue just because you have money.

If for no other reason, you need a policy that will pay to prove you are right. The attorney fees, court costs, exhibits, witness fees alone on a small case will exceed $50K. That means with no policy or a bad policy, you are out $50 to $100K before you even begin to pay a claim.

Insurance policies are difficult. I spent six years, three before and three after working for Nationwide Insurance. Reading a policy, let alone understanding it is mind numbing and hard. But you better or you will be standing in the cold, because someone took your house.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn





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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


California decision imposes three specific requirements for a release to be valid. On requirement is a release must be understood by a person untrained in the law.

Lawsuit filed by family of deceased runner who died of cardiac arrest after crossing the finish line of a race. Release and assumption of the risk blocked all claims except the claim for gross negligence.

Hass v. RhodyCo Productions, 2018 Cal. App. LEXIS 710

State: California, Court of Appeal of California, First Appellate District, Division Four

Plaintiff: Eden Gonzalez Hass et al

Defendant: Rhodyco Productions

Plaintiff Claims: negligently organized and planned the Half Marathon; negligently “hired, retained, … supervised, [and] controlled” the medical team; and negligently “managed, trained, supervised and controlled emergency and medical resources.

Defendant Defenses: Release and Primary Assumption of the Risk

Holding: Split decision, however case to continue on issue of gross negligence

Year: 2018

Summary

This California Appellate decision added some new requirements for releases to be valid in California. Two of those new requirements stem from the requirements of the California wrongful death statute. The other two are simple.

Under California law, inherent is a limiting word when it is used to describe the risks in a release, and a release must be understandable by a non-lawyer.

Facts

The deceased, Peter Hass, crossed the finish line of the 2011 Kaiser Permanente San Francisco Half Marathon, suffered a cardiac arrest, collapsed and died. His wife and his two children, referred to as the Hess Family in the opinion, sued the event organizer for negligence.

Before entering the race, the deceased signed a release online.

Having signed a release (Release) in which he agreed, among other things, to “accept the inherent dangers and risks” arising from his participation in the race and to release RhodyCo from “any and all claims” based on injuries he might suffer “at or enroute to and from this event

The race organizer had been putting on events for twenty-five year. This even had approval from the city which approval required providing an emergency management plan. The plan stated that a medical team and ambulance would be at the finish line and stationed on the course. The medical team the family argued was inadequate.

Family highlighted the use of chiropractors rather than medical doctors, the use of chiropractic students rather than EMTs, the lack of ambulance personnel at the finish line, inadequate communication and communication devices, and inadequate AEDs and ambulances.

The Hess family sued. Initially, the trial court granted the defendant RhodyCo’s motion for summary judgment based on the release and assumption of the risk. The family objected and argued in a hearing they should have the right to amend their complaint and bring additional claims. After the hearing, the trial court agreed and granted the Hess family’s motion for a new trial.

Specifically, the court agreed with the Hass Family that primary assumption of the risk was inapplicable on these facts and further determined that the Hass Family should have been allowed to amend the Complaint to plead gross negligence. Although it refused to rule on the existence of a triable issue with respect to gross negligence pending the filing of the amended Complaint, it did reject RhodyCo’s argument that the Hass Family had not moved with diligence in taking the deposition of Dr. Brown.

The defendant RhodyCo filed a notice of appeal, and the Hess family filed a notice of cross appeal bringing the matter to the California Court of Appeals, which issued the opinion here.

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

The appellate court first looked at the wrongful-death claim of the plaintiff Hess family. Under California law, a wrongful-death claim is not a derivative claim. Meaning the claim does not arise from a superior claim of the plaintiff. It is a claim, in and of itself, and not a claim of the deceased by a claim of the deceased’s family.

In other words, although a decedent cannot release or waive a subsequent wrongful-death claim by the decedent’s heirs, that decedents “express agreement to waive the defendant’s negligence and assume all risks” acts as a complete defense to such a wrongful-death action.

Consequently, a release must be written differently under California law if it is to be used to stop a wrongful-death claim.

The longstanding rule is that a wrongful death action is a separate and distinct right belonging to the heirs, and it does not arise until the death of the decedent.'” “Because a wrongful death claim is not derivative of the decedent’s claims, an agreement by the decedent to release or waive liability for [his or] her death does not necessarily bar a subsequent wrongful death cause of action

For a release to block a wrongful-death claim, the language in the release, not the law of releases. Looking at the entire document, is it clear the parties expressed the intent to assume the risk, thus blocking the wrongful-death claim.

Under California law for a release to block a claim for wrongful death, it must also be an assumption of risk agreement that on its face shows the parties intended for the deceased to assume the risk.

…in the instant case, we conclude that Hass intended both to assume all risks associated with his participation in the race, up to and including the risk of death, and to release RhodyCo (on behalf of himself and his heirs) from any and all liability with respect to any injuries he might suffer as a result of his participation. This was sufficient to block the Hass Family’s wrongful death claim for ordinary negligence.

The plaintiff Hess family argued the assumption of the risk language was insufficient to make that claim because the release used the term “inherent” to describe the risks. As such the risks that killed the deceased were not covered in the release.

The Hass Family, however, argues that the Release executed by Hass in this case is ineffective as a defense to their wrongful death claim because the express assumption of the risk language is limited solely to risks “inherent” in race participation—I “accept the inherent dangers and risks … that arise from participation in the event”—which does not include any potentially negligent conduct by RhodyCo that may have increased those inherent risks.

Again, the release used terms that limited the scope of the risks the deceased was to assume, which limited the breath of the release.

Use of the term Inherent in describing risks in a release limits the risks that can be assumed by the signor.

The court found that the language in other parts of the release were broad enough to cover the risks the deceased undertook and thus assumed.

Here, reading the Release as a whole—as would an ordinary person untrained in the law—we are convinced it expresses Hass’s intent to assume all risks arising from his participation in the Half Marathon, including any risks related to RhodyCo’s negligence.

California also has a requirement that the “release should be understood as speaking to an ordinary person untrained in the law.” This requirement was argued stated twice in the decision.

A release under California law must be written so that an ordinary person untrained in the law can understand it.

The Hess family then argued the release was void because it violated public policy. The Hess Family claimed the defendants were negligent in providing the medical care that responded, and medical care is a necessity and as such should not be protected by a release.

The Hass Family, however, argues that, even if the Release might otherwise be deemed a valid bar to their negligence claim, it is void as against public policy to the extent it purports to apply to the provision of emergency medical services, as such services implicate the public interest. Civil Code section 1668 provides that “[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”

California Civil code § 1668 does not allow a release to be sued to stop a claim if the service or the nature of the contract is based on public policy.

All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.

There is a six-part test to determine if the agreement is one affecting the public interest. Not all six of the requirements must be met.

“‘[1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.'”

However, courts in California have declined to find releases used for recreational activities as violating the statute and thus being void because of the public interest argument.

Most recreational activities may require first aid or greater medical services. However, people do not engage in the sport or activity because of the first aid or medical issues. The first aid and medical issues are ancillary to the activity and as such not the main purpose for the activity or the release.

Many recreational activities may require the ancillary provision of first aid or emergency medical services by event organizers, but that fact alone does not change such pursuits into anything other than the voluntary leisure pastimes that they are. In particular, with reference to the Tunkl factors, we note that half marathons are not an activity of great importance to the general public and are certainly not a matter of necessity. No racer is required to enter a particular event or to run it in any particular way.

The next issue was the issues of pleading the claim for gross negligence. California like most, if not all, other states do not allow a release to stop a gross negligence claim. If the Hess family is able to argue to the trier of fact that the actions of the defendant, RhodyCo rose to the level of gross negligence the release is not a defense.

Under California law, gross negligence is a want of even scant care.

…”‘[g]ross negligence’ long has been defined in California and other jurisdictions as either a ‘”‘want of even scant care'”‘ or ‘”‘an extreme departure from the ordinary standard of conduct.'”‘[G]ross negligence” falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind.'” In assessing where on the spectrum a particular negligent act falls, “‘[t]he amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it.'”

Normally, to appeal an issue or even argue an issue at the trial court level, you must first include the claim in your complaint or amend your complaint to bring a new issue in. The Hass family did not include any claim in their complaint for gross negligence.

However, the court found that there was no need in California to specifically plead gross negligence as it was part of negligence, sort of. The court never specifically stated why it was reviewing the gross negligence claim, only that other courts had found that it was not necessary to specifically plead gross negligence.

The court then found the plaintiff’s complaint, and arguments had raised enough issues that the plaintiffs might have a claim for gross negligence.

In this case, there are clearly factual and credibility questions that need to be answered regarding exactly what was required under the terms of the EMS Plan. For example, there is conflicting evidence as to whether the “finish line” included the crowded postrace expo area for purposes of compliance with the EMS Plan, and it must also be established exactly what medical personnel and equipment were required to be stationed at the finish line. We will not here catalogue every conceivable argument that the Hass Family could present in an attempt to prove grossly negligent conduct by RhodyCo in this context.

Primary assumption of the risk was the final issue reviewed by the court. Primary assumption of the risk is a complete bar to negligence claims, including gross negligence claims because it removes any duty on the part of the defendant to the plaintiff. Meaning, the defendant cannot be negligent because they have not duty to the plaintiff.

Specifically, our high court distinguished between two different types of assumption of the risk: primary assumption of the risk—”those instances in which the assumption of risk doctrine embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk”—and secondary assumption of risk—”those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.”

When applicable, primary assumption of the risk “operate[s] as a complete bar to the plaintiff’s recovery.”

Primary assumption of risk arose out of sports and recreational activities so that the activities could be played with the intensity and vigor so that the reason, and sport of the game was not lost.

The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.”

The issue then becomes what duty is owed by the defendant to the plaintiff that was not assumed by the plaintiff to the extent that it was then breached by the defendant.

Here, RhodyCo asserts that the primary assumption of the risk doctrine serves as a complete bar to the Hass Family’s negligence claim, and thus the trial court erred in concluding otherwise. Specifically, RhodyCo argues that the risk of cardiac arrest is inherent to the sport of long-distance running and that, since it did nothing to increase Hass’s risk of suffering cardiac arrest in the way it conducted the Half Marathon, it owed no further duty to the Hass Family.

The court then stated that the organizer of the even does not have a duty to decrease the risk of any activity or event. However, there is a duty to minimize extrinsic risks.

While the operator or organizer of a recreational activity has no duty to decrease risks inherent to the sport, it does have a duty to reasonably minimize extrinsic risks so as not to unreasonably expose participants to an increased risk of harm.

The court reasoned this was a necessary departure from the encompassing defense provided by assumption of the risk to keep owners and organizers from avoiding “accountability for their gross negligence in this context, based on the primary assumption of the risk doctrine, would contravene public policy, not support it.”

The court did not point out specific facts or risks that created the issue that the defendant RhodyCo had been grossly negligent.

The case was sent back to trial on the sole issue on whether or not the actions of the defendant were grossly negligent.

So Now What?

At the end of the decision, the court awarded costs to the Hess family. Costs on appeal are awarded to the winner of the appeal, in terms of overall and in terms of the number of claims. The defendant won all but one of the issues on appeal in this case. The only claim the defendant did not win was the plaintiffs did not plead gross negligence in their complaint, so they cannot argue it now.

Yet the court still awarded costs to the plaintiffs. It is only a guess, but does this indicate leaning in favor of the plaintiff’s in this case?

There are three specific takeaways from this decision affecting the law of California and releases.

1.    Consequently, a release must be written differently under California law if it is to be used to stop a wrongful-death claim.

2.    Under California law for a release to block a claim for wrongful death, it must also be an assumption of risk agreement that on its face shows the parties intended for the deceased to assume the risk.

3.    Use of the term Inherent in describing risks in a release limits the risks that can be assumed by the signor.

4.    A release under California law must be written so that an ordinary person untrained in the law can understand it.

The final issue to come out of this decision a new back door to defeating the primary assumption of the risk claim. Now if the risk is not enumerated in the release, the plaintiff is going to argue it is extrinsic and therefore, not covered by the doctrine of primary assumption of the risk to defeat the defense.

What do you think? Leave a comment.

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Johnson v. Capitol Specialty Ins. Corp., 2018 Ky. App. Unpub. LEXIS 447

Johnson v. Capitol Specialty Ins. Corp.

Court of Appeals of Kentucky

June 22, 2018, Rendered

NO. 2017-CA-000171-MR, NO. 2017-CA-000172-MR

Reporter

2018 Ky. App. Unpub. LEXIS 447 *; 2018 WL 3090503CHRIS JOHNSON D/B/A EXTREME RAMPAGE, AND CHRIS JOHNSON, AND CHRISTOPHER JOHNSON, RAMPAGE LLC, CHRISTOPHER JOHNSON D/B/A RAMPAGE, LLC, AND/OR EXTREME RAMPAGE (COLLECTIVELY KNOWN AS “THE JOHNSON PARTIES”) BY AND THROUGH ASSIGNEE CASEY ARNOLD, APPELLANTS v. CAPITOL SPECIALTY INSURANCE CORPORATION, APPELLEE;CASEY ARNOLD, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF CHAD ARNOLD, AND AS NEXT FRIEND AND GUARDIAN/ CONSERVATOR FOR MILES ARNOLD, AND AS ASSIGNEE FOR ALL CLAIMS HELD BY “THE JOHNSON PARTIES”, APPELLANTS v. CAPITOL SPECIALTY INSURANCE CORPORATION, APPELLEE

Notice: THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

Prior History:  [*1] APPEAL FROM FAYETTE CIRCUIT COURT. HONORABLE KIMBERLY N. BUNNELL, JUDGE. ACTION NOS. 14-CI-00948 & 15-CI-00777. APPEAL FROM FAYETTE CIRCUIT COURT. HONORABLE KIMBERLY N. BUNNELL, JUDGE. ACTION NOS. 14-CI-00948 & 15-CI-00777.

Counsel: BRIEFS FOR APPELLANTS, CHRIS JOHNSON D/B/A EXTREME RAMPAGE, AND CHRIS JOHNSON, AND CHRISTOPHER JOHNSON, RAMPAGE LLC, CHRISTOPHER JOHNSON D/B/A RAMPAGE, LLC, AND/OR EXTREME RAMPAGE: Don A. Pisacano, Lexington, Kentucky.

BRIEFS FOR APPELLANTS, CASEY ARNOLD, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF CHAD ARNOLD, AND AS NEXT FRIEND AND GUARDIAN/ CONSERVATOR FOR MILES ARNOLD, AND AS ASSIGNEE FOR ALL CLAIMS HELD BY “THE JOHNSON PARTIES”: A. Neal Herrington, Christopher H. Morris, Louisville, Kentucky.

BRIEFS FOR APPELLEE, CAPITOL SPECIALTY INSURANCE CORPORATION: Richard J. Rinear, Zachary D. Bahorik, Cincinnati, Ohio.

Judges: BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND THOMPSON, JUDGES. MAZE, JUDGE, CONCURS. THOMPSON, JUDGE, CONCURS IN RESULT ONLY.

Opinion by: CLAYTON

Opinion

AFFIRMING

CLAYTON, CHIEF JUDGE: These consolidated appeals1 are taken from a Fayette Circuit Court order entering declaratory summary judgment in favor of Capitol Specialty Insurance Corporation. The primary issue is whether a [*2]  general commercial liability insurance policy issued by Capitol covers potential damages stemming from the death of a participant in an obstacle race, or whether exclusions in the policy bar recovery.

The obstacle race, known as “Extreme Rampage,” was organized and presented by Chris Johnson, the owner of Rampage, LLC. The 5K race, which included a climbing wall and mud pits, was held at the Kentucky Horse Park on March 2, 2013. Under the terms of his contract with the Horse Park, Johnson was required to “provide public liability insurance issued by a reputable company, which shall cover both participants and spectators with policy coverage of one million dollars ($1,000,000.00) minimum for each bodily injury[.]”

Johnson purchased the policy from Stephen Delre, an insurance agent employed at the Tim Hamilton Insurance Agency (“THIA”). Delre filled out an application for insurance on Johnson’s behalf and submitted it to Insurance Intermediaries, Inc. (“III”). III submitted the application to Capitol. Capitol prepared a proposal for coverage which III gave to THIA. Johnson accepted the proposal and III produced the policy based upon the terms offered by Capitol.

The policy contained two [*3]  provisions excluding bodily injury to the event participants from its coverage. For purposes of this opinion, the exclusions will be referred to as the “sponsor” exclusion and the “arising out of” exclusion.

The sponsor exclusion provided as follows:

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY

EXCLUSION — ATHLETIC OR SPORTS PARTICIPANTS

This endorsement modifies insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART.

SCHEDULE

Description of Operations:

Special event — 5K run with obstacles.

. . .

With respect to any operations shown in the Schedule, this insurance does not apply to “bodily injury” to any person while practicing for or participating in any sports or athletic contest or exhibition that you sponsor.

The participant exclusion provided as follows:

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY EXCLUSION — PARTICIPANTS

(SPECIFIED ACTIVITIES/OPERATIONS)

SCHEDULE

Descriptions of Activity/Operations

Mud Runs and Tough Guy Races

This insurance does not apply to “bodily injury,” “property damage,” “personal or advertising injury” or medical expense arising out of any preparation for or participation in any of the activities or operations [*4]  shown in the schedule above.

During the course of the Extreme Rampage race, one of the participants, Chad Arnold, collapsed and died. His wife, Casey Arnold, acting individually, as the administratrix of his estate and as guardian/conservator for their minor son Miles (“Arnold”), filed a wrongful death suit naming numerous defendants, including Johnson. Johnson sought defense and indemnity under the Capitol policy. Capitol denied coverage and filed a declaratory judgment complaint in Fayette Circuit Court on March 17, 2014, asserting it had no duty to defend or indemnify Johnson because the policy expressly excluded coverage for event participants.

Johnson and Arnold subsequently filed a complaint in a different division of Fayette Circuit Court against Capitol, THIA, Delre, and III, asserting claims of negligence; violation of the Kentucky Consumer Protection Act and the Unfair Claims Settlement Practices Act; fraud; and breach of contract. On April 15, 2015, the two actions were consolidated by court order. Johnson and Arnold filed a motion for summary judgment; Capitol filed a motion for summary declaratory judgment. The trial court held extensive hearings on the motions and thereafter [*5]  entered an order granting Capitol’s motion and dismissing with prejudice all claims asserted against Capitol by Johnson and Arnold. Additional facts will be set forth as necessary later in this opinion.

In granting summary declaratory judgment to Capitol, the trial court held that that the policy issued by Capitol to Johnson excluded coverage to the Johnson defendants for the underlying claims of the Arnold defendants because the sponsor exclusion was clear and unambiguous and the Johnson defendants are a “sponsor” within the plain meaning of the word as used in the exclusion. The trial court further held that, as a matter of law, neither the concurrent proximate cause doctrine nor the efficient proximate cause doctrine applies to afford coverage under the policy to the Johnson defendants for the claims of the Arnold defendants; that neither Delre nor THIA is an agent of any kind of Capitol; and finally, that no other oral or written contract modified and/or superseded the policy to afford coverage by Capitol.

These appeals by Johnson and Arnold followed.

In reviewing a grant of summary judgment, our inquiry focuses on “whether the trial court correctly found that there were no genuine [*6]  issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781, 43 1 Ky. L. Summary 17 (Ky. App. 1996) (citing Kentucky Rules of Civil Procedure (CR) 56.03). Summary judgment may be granted when “as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991) (internal quotation marks and citation omitted). “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Id. at 480. On the other hand, “a party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial.” Id. at 482. “An appellate court need not defer to the trial court’s decision on summary judgment and will review the issue de novo because only legal questions and no factual findings are involved.” Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705 (Ky. App. 2004).

We have grouped the Appellants’ arguments into the following six categories: first, that the terms of the policy do not reflect what Johnson requested from Delre; second, that Delre and THIA were actual or apparent agents of Capitol whose alleged misrepresentations [*7]  or omissions to Johnson about the policy bound their principal; third, that neither the “sponsor” exclusion nor the “arising out of” exclusion in the policy was applicable; fourth, that the exclusions create an ambiguity in the policy when read with the coverage endorsements; fifth, that the concurrent proximate cause doctrine provides coverage under the policy; and sixth, that the trial court erred in dismissing all claims against Capitol.

1. The purchase of the policy

Johnson denies that the insurance policy attached to Capitol’s declaratory judgment complaint is a true and accurate copy of the policy he purchased and admits only that the document attached to the complaint is the document he received in the mail after he had paid for the policy.

According to deposition testimony, Johnson first spoke with Delre about obtaining insurance coverage for the Extreme Rampage event in a telephone conversation in December 2012. Johnson had purchased an insurance policy for a similar race event from Delre approximately six months earlier. Delre questioned Johnson about the type of coverage he was seeking. Johnson was unaware that Delre was simultaneously filling out a “special event” insurance [*8]  application. According to Johnson, he told Delre he needed participant coverage and Delre specifically asked him how many participants would be involved in the event. Delre nonetheless left blank on the “special event” application form whether athletic participant coverage was requested. Delre signed Johnson’s name to the application for insurance without Johnson reviewing the document. After the insurance application was submitted, Delre sent a proposal to Johnson which he claims he never received.

On February 8, 2013, Johnson visited Delre and THIA’s office to pay for the policy in the amount of $477. He signed a “subjectivities page” which stated that the policy quote was subject to verification of the following:

No events involving the following: abortion rights, pro choice or right-to-life rallies/parades or gatherings, air shows or ballooning events, auto racing regardless of vehicle size (including go-karts, motorcycles and snowmobiles), cattle drives, events involving inherently dangerous or stunting activities, events with water rides/slides etc., political demonstrations or protest rallies by groups with a history of violent incidents, [n]o events with fireworks displays. AND [*9]  — Spectators must be a safe distance (100 feet minimum) from the obstacle course.

Johnson was not shown the actual policy, nor was he informed of the participation exclusions in the insurance proposal.

A copy of the complete policy containing the “sponsor” exclusion and the “arising out of” exclusion was mailed to Johnson on February 27, 2013. Johnson asserts that the policy did not conform to what he agreed to in his conversation with Delre and that he was never informed that participants would be excluded from coverage. He points out that the policy was also later unilaterally modified by Delre after the Horse Park requested a certificate of insurance indicating that it was an “additional insured” on the policy.

Johnson cannot avoid the terms of the insurance contract by pleading ignorance of its contents. It is axiomatic that “insured persons are charged with knowledge of their policy’s contents[.]” Bidwell v. Shelter Mut. Ins. Co., 367 S.W.3d 585, 592 (Ky. 2012) (citing National Life & Accident Ins. Co. v. Ransdell, 259 Ky. 559, 82 S.W.2d 820, 823 (1935)). “In Midwest Mutual Insurance Company v. Wireman, 54 S.W.3d 177 (Ky. App. 2001), the Court of Appeals held an insured can waive UM coverage by signing the application for liability coverage, even if the insured alleges the agent never explained the meaning of UM coverage to him.” Moore v. Globe Am. Cas. Co., 208 S.W.3d 868, 870 (Ky. 2006). “All persons are presumed to know the law and the mere lack of knowledge [*10]  of the contents of a written contract for insurance cannot serve as a legal basis for avoiding its provisions.” Id. (internal quotation and citation omitted).

Although Johnson claims, based on his interaction with Delre, that the terms of the policy were not what he had anticipated, no genuine issue of material fact exists that Johnson signed the policy and, as a matter of law, was presumed to know its contents. The trial court did not err in ruling that there was no genuine issue of material fact concerning the policy and that no other oral or written contract modified or superseded the policy to afford coverage to Johnson for Arnold’s claims.

2. Were Delre and THIA agents of Capitol

Arnold seeks to hold Capitol liable for any omissions or misrepresentations of Delre and THIA by arguing that they were Capitol’s actual or apparent agents. “Under common law principles of agency, a principal is vicariously liable for damages caused by torts of commission or omission of an agent or subagent, . . . acting on behalf of and pursuant to the authority of the principal.” Williams v. Kentucky Dep’t of Educ., 113 S.W.3d 145, 151 (Ky. 2003), as modified (Sept. 23, 2003) (internal citations omitted).

“Actual authority arises from a direct, intentional granting of [*11]  specific authority from a principal to an agent.” Kindred Healthcare, Inc. v. Henson, 481 S.W.3d 825, 830 (Ky. App. 2014). The Restatement (Third) of Agency § 2.02(1) (2006) provides that “[a]n agent has actual authority to take action designated or implied in the principal’s manifestations to the agent and acts necessary or incidental to achieving the principal’s objectives, as the agent reasonably understands the principal’s manifestations and objectives when the agent determines how to act.” Kentucky’s Insurance Code provides that “[a]ny insurer shall be liable for the acts of its agents when the agents are acting in their capacity as representatives of the insurer and are acting within the scope of their authority.” Kentucky Revised Statutes (KRS) 304.9-035.

There is no evidence in the record that Capitol made a direct, intentional grant of authority to THIA and Delre to act as its agents or representatives; nor is there evidence that Capitol made any manifestations of its objectives to THIA or Delre with the expectation that they would act to achieve those objectives. Furthermore, as elicited in the hearing before the trial court, Capitol does not have a written agreement with THIA or Delre establishing them as its agents nor is there a registration or filing with the Kentucky Department of Insurance designating them as licensed [*12]  agents of Capitol. By contrast, Delre and THIA are registered, authorized agents of Nationwide Insurance in Kentucky and Johnson actually believed he would be purchasing a Nationwide policy from Delre.

As evidence of an actual agency relationship, Arnold points to the fact that THIA and Capitol both have contracts with III, the intermediary brokerage company which sent Johnson’s application for insurance to Capitol, seeking a policy proposal. The existence of contracts with the same third party was not sufficient in itself to create an actual agency relationship between THIA and Delre and Capitol. Capitol prepared the insurance proposal in reliance on the information contained in the application submitted by III; Capitol had no contact with or control over Delre or THIA. Consequently, Capitol could not be bound by what Johnson believed Delre had promised.

Similarly, there is no evidence that THIA and Delre were apparent agents of Capitol. “Apparent authority . . . is not actual authority but is the authority the agent is held out by the principal as possessing. It is a matter of appearances on which third parties come to rely.” Mark D. Dean, P.S.C. v. Commonwealth Bank & Tr. Co., 434 S.W.3d 489, 499 (Ky. 2014) (quoting Mill St. Church of Christ v. Hogan, 785 S.W.2d 263, 267 (Ky. App. 1990)). “One who represents that another is his servant [*13]  or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.” Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 257 (Ky. 1985) (quoting Restatement (Second) of Agency § 267 (1958)).

The only representations made to Johnson by Capitol were in the form of the proposal and written policy he signed. Capitol never held out Delre and THIA as its agents. Johnson admitted he had no contact with Capitol whatsoever and did not even know the policy he purchased was provided by Capitol until after the Extreme Rampage event.

The trial court did not err in holding that no agency relationship, actual or apparent, existed between Capitol and Delre and THIA.

3. Applicability of the policy exclusions

The trial court ruled that the “sponsor” exclusion was clear and unambiguous and the Johnson defendants were a “sponsor” within the plain meaning of the word as it was used in the exclusion. The Appellants disagree, arguing that the multiple definitions of the term “sponsor,” which is not defined in the policy, render it ambiguous.

“Interpretation and construction of an insurance contract is a matter [*14]  of law for the court.” Kemper Nat’l Ins. Companies v. Heaven Hill Distilleries, Inc., 82 S.W.3d 869, 871 (Ky. 2002). Exclusions in insurance contracts

are to be narrowly interpreted and all questions resolved in favor of the insured. Exceptions and exclusions are to be strictly construed so as to render the insurance effective. Any doubt as to the coverage or terms of a policy should be resolved in favor of the insured. And since the policy is drafted in all details by the insurance company, it must be held strictly accountable for the language used.

Eyler v. Nationwide Mut. Fire Ins. Co., 824 S.W.2d 855, 859-60 (Ky. 1992) (internal citations omitted).

On the other hand,

[t]he rule of strict construction against an insurance company certainly does not mean that every doubt must be resolved against it and does not interfere with the rule that the policy must receive a reasonable interpretation consistent with the parties’ object and intent or narrowly expressed in the plain meaning and/or language of the contract. Neither should a nonexistent ambiguity be utilized to resolve a policy against the company. We consider that courts should not rewrite an insurance contract to enlarge the risk to the insurer.

St. Paul Fire & Marine Ins. Co. v. Powell-Walton-Milward, Inc., 870 S.W.2d 223, 226-27 (Ky. 1994).

The Appellants rely on an opinion of the federal district court for the Eastern District of Pennsylvania, Sciolla v. West Bend Mut. Ins. Co., 987 F. Supp. 2d 594 (E.D. Pa. 2013) which held an identical insurance exclusion [*15]  to be inapplicable after concluding the term “sponsor” is ambiguous due to the lack of a universally accepted definition of the term by dictionaries and the courts. Sciolla, 987 F. Supp. 2d at 603. The Sciolla court assembled the following dictionary definitions of “sponsor:”

The full definition given by Merriam-Webster is: “a person or an organization that pays for or plans and carries out a project or activity; especially: one that pays the cost of a radio or television program usually in return for advertising time during its course.” Merriam-Webster’s Collegiate Dictionary, 1140 (9th ed. 1983). . . .

. . . [T]he American Heritage Dictionary defines sponsor, in relevant part, as “[o]ne that finances a project or an event carried out by another person or group, especially a business enterprise that pays for radio or television programming in return for advertising time.” American Heritage Dictionary of the English Language, 1679, (4th ed., 2009). Other dictionaries defines sponsor as “[o]ne that finances a project or an event carried out by another,” The American Heritage College Dictionary, 1315 (3d ed. 1993), or, as a verb, “to pay or contribute towards the expenses of a radio or television program, a performance, [*16]  or other event or work in return for advertising space or rights.” Oxford English Dictionary, 306 (2d ed. 1989).

Id. at 602.

The Sciolla court grouped the definitions into two categories: “The first concept is that of a person or an organization that pays for a project or activity. . . . The second concept is of a person or an organization that plans and carries out a project or activity.” Id. (italics in original).

As recognized by the Sciolla court, in order to be found ambiguous, a term with multiple definitions must be subject to more than one interpretation when applied to the facts of the case before it. Id. at 603. “Because a word has more than one meaning does not mean it is ambiguous. The sense of a word depends on how it is being used; only if more than one meaning applies within that context does ambiguity arise.” Board of Regents of Univ. of Minnesota v. Royal Ins. Co. of Am., 517 N.W.2d 888, 892 (Minn. 1994). As the United States Supreme Court has observed in the context of statutory interpretation, “[a]mbiguity is a creature not of definitional possibilities but of statutory context[.]” Brown v. Gardner, 513 U.S. 115, 118, 115 S. Ct. 552, 555, 130 L. Ed. 2d 462 (1994).

It is the Appellants’ position that Johnson did not “sponsor” the Extreme Rampage but actually organized, promoted, and ran the event. In his deposition, Johnson stated that he was not a “sponsor” of the [*17]  Extreme Rampage event but that he “owned” the event, and that he actually discovered Delre and THIA while seeking sponsorships for Rampage events. Delre in his deposition confirmed that Johnson asked him to be a sponsor. When he was asked how he got started funding Rampage, LLC, Johnson replied “Sponsorships and my own pocket.” Thus, the evidence indicates that Johnson helped to fund Extreme Rampage and also planned and carried it out. There is no evidence that he financed a project carried out by another or that he paid for the project in exchange for advertising space.

The fact that Johnson’s actions do not meet each and every one of the multiple definitions of “sponsor” does not render the term ambiguous, however, when the term is viewed in the context of the language of the exclusion, which applies to “bodily injury to any person while practicing for or participating in any sports or athletic contest or exhibition that you sponsor.” (Emphasis added.)

The policy provides the following definition of “you”: “Throughout this policy the words ‘you’ and ‘your’ refer to the Named Insured shown in the declarations, and any other person or organization qualifying as a Named Insured under [*18]  this policy. The words ‘we’, ‘us’ and ‘our’ refer to the company providing this insurance.” Thus, Johnson, the Named Insured, is “you.” When the term “sponsor” is viewed within the context of an insurance policy covering one discrete event sponsored by the Named Insured, Johnson, it was plainly intended to refer to Johnson and to the specific Extreme Rampage event he was sponsoring.

The Appellants argue that the trial court did not have the right to choose which of the multiple competing definitions of sponsor applied. When viewed in the context of the exclusion, however, the definition is plainly limited to the sponsorship activities of the Name Insured, Johnson.

Because the trial court did not err in holding that the “sponsor” exclusion is applicable, we need not address the validity of the “arising out of” exclusion.

4. The applicability of the concurrent proximate cause doctrine

Johnson argues that even if the policy exclusions apply, the concurrent proximate cause doctrine provides coverage under the policy. Johnson contends that the doctrine was adopted by the Kentucky Supreme Court in Reynolds v. Travelers Indem. Co. of Am., 233 S.W.3d 197, 203 (Ky. App. 2007). Reynolds is an opinion of the Court of Appeals, and it did not officially adopt the doctrine; [*19]  it approved of the reasoning in a case from our sister state in Bowers v. Farmers Insurance Exchange, 99 Wash. App. 41, 991 P.2d 734 (2000), which applied the “efficient proximate cause doctrine.” Reynolds, 233 S.W.3d at 203.

The doctrine holds that

Where the loss is essentially caused by an insured peril with the contribution of an excluded peril merely as part of the chain of events leading to the loss, there is coverage under the policy. Stated alternately, coverage will exist where a covered and noncovered peril join to cause the loss provided that the covered peril is the efficient and dominant cause.

10A Couch on Insurance 3d § 148:61 (2005).

Applying the doctrine, Johnson argues that even if Chad Arnold’s participation in the race was an excluded peril, the loss was essentially caused by a peril that was insured. He contends that the allegations of Arnold’s complaint, such as failure to provide reasonable medical treatment; failure to plan and have proper policies and procedures; and failure to train, instruct, and supervise are not predicated upon a cause of action or risk that is excluded under the policy. He points to the affidavit of a doctor who reviewed Chad Arnold’s medical records and post-mortem examination and concluded that he died of a pre-existing heart condition unconnected [*20]  with his participation in the race.

This argument ignores the fact that the “sponsor” exclusion does not reference causation or a specific “peril”; it merely excludes participants in the covered event from recovery for bodily injury, whatever the cause. It does not require a finding that the bodily injury was caused by participation in the event.

We agree with the reasoning of the federal district court for the Western District of Kentucky, which addressed a factually-similar situation involving a student who collapsed and died while practicing for his college lacrosse team. Underwriters Safety & Claims, Inc. v. Travelers Prop. Cas. Co. of Am., 152 F. Supp. 3d 933 (W.D. Ky. 2016), aff’d on other grounds, 661 F. App’x 325 (6th Cir. 2016). The college’s insurance policy contained an exclusion for athletic participants. The plaintiffs argued that the allegations of their complaint were focused on the college’s failure to provide pre-participation medical forms to physicians who examined the student and on the college’s failure to render proper medical treatment. The district court described these arguments as “red herrings” that attempted “to re-contextualize the fatal injury as a result of medical malpractice or concurrently caused by medical malpractice and engagement in athletic activity.” Underwriters, 152 F. Supp. 3d at 937. The complaint filed by the [*21]  student’s estate “did not seek redress for a bodily injury that occurred during pre-participation athletic medical screenings. The policy specifically excludes bodily injury while engaged in athletic or sports activities. Passfield [the student] was engaged in such an activity at the time of the injury. While the Court liberally construes insurance policies in favor of the insured, the Court also strictly construes exclusions. This is an instance of the latter.” Id. Similarly, in the case before us, the exclusion applies specifically to bodily injury while participating in the Extreme Rampage. The exclusion does not require a causal link between the participation and the injury to apply. There is no genuine issue of fact that Chad Arnold was a participant in the race and that, as the complaint alleges, “during the course of the event, the decedent collapsed, consciously suffered for an undetermined amount of time, and died.”

5. Do the two exclusions create an ambiguity in the policy

Johnson further argues that the two exclusions create an ambiguity in the policy when read in conjunction with two coverage endorsements. Johnson claims that the “Combination Endorsement-Special Events” and [*22]  the “Limitation-Classification Endorsement” provide unfettered coverage while the two exclusions limit coverage, thus creating an ambiguity. Johnson’s brief gives no reference to the record to show where the endorsements are found, nor does it indicate when or how the trial court addressed this issue. CR 76.12(4)(c)(v) requires an appellate brief to contain “ample supportive references to the record and . . . a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.” The purpose of this requirement “is so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration.” Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). “[E]rrors to be considered for appellate review must be precisely preserved and identified in the lower court.” Skaggs v. Assad, 712 S.W.2d 947, 950 (Ky. 1986). We are simply “without authority to review issues not raised in or decided by the trial court.” Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989). Nor is it the task of the appellate court to search the record for pertinent evidence “not pointed out by the parties in their briefs.” Baker v. Weinberg, 266 S.W.3d 827, 834 (Ky. App. 2008).

We recognize that the hearing on August 25, 2016, at which this issue may have been argued before the trial court, was not recorded. [*23]  Nonetheless, “when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court.” Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).

6. Dismissal of all claims against Capitol.

Finally, Arnold argues that the trial court erred in dismissing all causes of action against Capitol. Arnold contends that the arguments before the trial court only concerned the applicability of the insurance policy, but never addressed the additional allegations in the complaint of negligence, consumer protection, unfair claims settlement practices, and fraud. Arnold does not explain what the grounds for Capitol’s liability on these claims would be if, as the trial court ruled, the “sponsor” exclusion is valid and Delre and THIA were not acting as Capitol’s agents. Under these circumstances, the trial court did not err in dismissing all claims against Capitol.

For the foregoing reasons, the order of the Fayette Circuit Court granting summary declaratory judgment to Capitol is affirmed.

MAZE, JUDGE, CONCURS.

THOMPSON, JUDGE, CONCURS IN RESULT ONLY.

Bibliography

CHRIS JOHNSON D/B/A EXTREME RAMPAGE, AND CHRIS JOHNSON, AND CHRISTOPHER JOHNSON, RAMPAGE LLC, CHRISTOPHER JOHNSON D/B/A RAMPAGE, LLC, AND/OR EXTREME RAMPAGE (COLLECTIVELY KNOWN AS “THE JOHNSON PARTIES”) BY AND THROUGH ASSIGNEE CASEY ARNOLD, APPELLANTS v. CAPITOL SPECIALTY INSURANCE CORPORATION, APPELLEE;CASEY ARNOLD, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF CHAD ARNOLD, AND AS NEXT FRIEND AND GUARDIAN/ CONSERVATOR FOR MILES ARNOLD, AND AS ASSIGNEE FOR ALL CLAIMS HELD BY “THE JOHNSON PARTIES”, APPELLANTS v. CAPITOL SPECIALTY INSURANCE CORPORATION, APPELLEE, 2018 Ky. App. Unpub. LEXIS 447, 2018 WL 3090503, (Court of Appeals of Kentucky June 22, 2018, Rendered).


Hass v. RhodyCo Productions, 2018 Cal. App. LEXIS 710

Hass v. RhodyCo Productions, 2018 Cal. App. LEXIS 710

Hass v. RhodyCo Productions

Court of Appeal of California, First Appellate District, Division Four

August 13, 2018, Opinion Filed

2018 Cal. App. LEXIS 710 *; 2018 WL 3830002

EDEN GONZALEZ HASS et al., Plaintiffs and Appellants, v. RHODYCO PRODUCTIONS, Defendant and Appellant.

Prior History:  [*1] Superior Court of San Francisco of City and County, No. CGC-12-520492, A. James Robertson II, Judge.

Counsel: Lewis Brisbois Bisgaard & Smith LLP, Jeffry A. Miller, Lann G. McIntyre, Shawn A. Toliver, Helen L. Greenberg for Plaintiffs and Appellants.

Law Office of Gerald Clausen, Gerald Clausen, Abramson Smith Waldsmith LLP, Robert J. Waldsmith, Jeffrey R. Smith for Defendant and Respondent.

Judges: Opinion by Reardon, J., with Streeter, Acting P. J., and Smith, J.*, concurring.

Opinion by: Reardon, J.

Opinion

REARDON, J.—After crossing the finish line at the 2011 Kaiser Permanente San Francisco Half Marathon, Peter Hass (Hass) tragically suffered a cardiac arrest, collapsed, and died. Hass’s wife, Eden Gonzalez Hass, and his two minor children (collectively, the Hass Family) consequently filed this wrongful death action, alleging that numerous race-affiliated individuals and entities—including event organizer David Rhody, individually and doing business as RhodyCo Productions (RhodyCo)—were negligent in the organization and management of the race, particularly with respect to the provision of emergency medical services.1 The trial court initially granted RhodyCo’s summary judgment motion in this matter, concluding that the instant action was barred [*2]  under theories of primary assumption of the risk and express waiver. However, after the Hass Family filed a motion for new trial, the trial court reversed itself. Specifically, the court found that primary assumption of the risk was inapplicable on these facts and further determined that the Hass Family should have been allowed to amend their complaint to plead gross negligence, conduct falling outside of the scope of the written waiver and release. On appeal, RhodyCo argues that the trial court’s initial grant of summary judgment was correct, even if the issue of gross negligence is considered on its merits. The Hass Family, in contrast, generally champions the court’s new trial order, but argues that the express release in this case was invalid on additional grounds rejected by the trial court and that the court should have concluded on the evidence before it that a triable issue of material fact exists as to RhodyCo’s gross negligence. We agree with the trial court that summary judgment was not warranted in this case based on primary assumption of the risk. However, we believe the trial court erred in requiring amendment of the complaint to plead gross negligence and determine, [*3]  based on our independent review of the record before us, that a triable issue of material fact exists on this issue. We therefore affirm in part and reverse in part, with instructions to enter a denial of RhodyCo’s summary judgment motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The annual Kaiser Permanente San Francisco Half Marathon & 5K Run in Golden Gate Park (Half Marathon) consists of two different events—a 13.1-mile half marathon and a five-kilometer run. In 2011, the anticipated attendance for the two races was estimated to include 10,000 participants and 600 volunteers. RhodyCo provided event management and production services for the Half Marathon from 2006 through 2011. In order to obtain the necessary temporary street closure permit for the event, RhodyCo was required to submit an emergency medical services plan (EMS Plan) to the City and County of San Francisco (City) for review and approval by the City’s emergency medical services agency (Agency).

The approved EMS Plan for 2011 stated, as it had in previous years, that the medical personnel at the Half Marathon would be provided by Palmer College of Chiropractic-West (PCCW) and American Medical Response (AMR). More specifically, [*4]  it asserted that PCCW would “‘provide event trained Medical Personnel for the event, (students are all CPR certified and have taken emergency response class). Med Teams will be located at key areas (Start Line, Finish Lines, Postrace Medical Tent, and mobile units on the course). The head clinician event day, Dr. Hal Rosenberg [phone number], will be onsite at the Postrace Medical Tent. AMR will provide an [emergency medical technician] who will be posted with PCCW Med Team in the postrace Medical Tent at the Finish of the race—AMR is also providing an ALS ambulance to respond [to] medical emergencies—the standby will be posted on Lincoln at the Great Hwy … . The Standby and Medical Team will be equipped with cellphone active Nextel radios with direct communication to the Event Coordinator and each other.'” Other portions of the approved EMS Plan, however, indicated that one M.D., 6+ EMTs, and one automatic external defibrillator (AED) would be located at the finish line.

Having signed a release (Release) in which he agreed, among other things, to “accept the inherent dangers and risks” arising from his participation in the race and to release RhodyCo from “any and all claims” [*5]  based on injuries he might suffer “at or enroute to and from this event,” Hass participated in the Half Marathon on February 6, 2011. Almost immediately after crossing the finish line at 10:05:34 a.m., Hass suffered a sudden cardiac arrest and collapsed. Another runner, Dr. Charles Whitehill, crossed the finish line 13 seconds after Hass and heard him fall. Dr. Whitehill—who had significant experience in providing and overseeing resuscitation efforts for patients—began to perform cardiopulmonary resuscitation (CPR) on Hass within 30 to 60 seconds of arriving at Hass’s side. Dr. Whitehill was involved in CPR efforts for five to eight minutes, after which CPR was continued by another bystander who identified himself as an off-duty paramedic. Approximately 11 minutes after Hass collapsed a third bystander brought the AED from the postrace tent, which was located somewhere between 100 and 200 yards beyond the finish line. When the AED was applied, it showed that Hass had no shockable heart rhythm. CPR efforts were then continued until paramedics from the City’s fire department arrived at approximately 10:31 a.m. and took over treatment. Unfortunately, Hass was pronounced dead shortly thereafter [*6]  at 10:49 a.m. RhodyCo has provided event management and production services for over 25 years, including at least 400 running, walking, and other events involving over 1.5 million participants. Hass’s tragic death was the only fatality ever experienced at a RhodyCo-managed event.

On May 3, 2012, the Hass Family filed this wrongful death action (Complaint), alleging, among other things, that RhodyCo had negligently organized and planned the Half Marathon; negligently “hired, retained, … supervised, [and] controlled” the medical team; and negligently “managed, trained, supervised and controlled emergency and medical resources.” In particular, the Hass Family highlighted the use of chiropractors rather than medical doctors, the use of chiropractic students rather than EMTs, the lack of ambulance personnel at the finish line, inadequate communication and communication devices, and inadequate AEDs and ambulances. RhodyCo answered, generally denying the Complaint allegations and asserting several affirmative defenses, including primary assumption of the risk and express contractual assumption of the risk and release of liability.

RhodyCo then filed a motion for summary judgment, arguing [*7]  that the Hass Family’s wrongful death action was completely barred based on the two aforementioned affirmative defenses. Specifically, RhodyCo claimed that Hass had agreed to be bound by the Release when he registered for the Half Marathon, which included a waiver of liability and assumption of the risk agreement that was binding on his heirs. In addition, RhodyCo asserted that sudden cardiac arrest is an inherent risk of long-distance running and that it had done nothing to increase this risk. Under these circumstances, RhodyCo opined, the Hass Family’s action was barred under the primary assumption of the risk doctrine.

In opposition to the summary judgment motion, the Hass Family argued with respect to the Release that it was void to the extent it purported to cover emergency medical services, as such services implicate the public interest; that it was not a clear and unambiguous waiver of future liability for a wrongful death claim; and that it was ineffective to exempt RhodyCo from liability for gross negligence. With respect to the doctrine of primary assumption of the risk, the Hass Family agreed that cardiac arrest is an inherent risk of long-distance running, but argued that [*8]  a sponsoring entity is nevertheless obligated to take reasonable steps to minimize inherent risks to the extent it is able to do so without altering the nature of the sport. They further maintained that RhodyCo had increased the risk of death beyond that inherent in the sport by failing to comply with the EMS Plan.

On the issue of negligence, the Hass Family presented evidence indicating that medical emergencies (including cardiac arrests) are more likely to occur near the finish line of a race because runners tend to push themselves to improve their times, causing an adrenaline rush and an arrhythmia. Moreover, as the City, itself, has recognized: “[C]losing off several major streets at the same time to accommodate a race often causes … potential interference with emergency services.” (San Francisco Transportation Code, § 6.11, subd. (a).) The Hass Family argued that, although RhodyCo’s EMS Plan for the Half Marathon properly identified the finish line as a “‘key area'” and indicated numerous resources would be stationed there—including a medical doctor, AED, and “6+” EMTs—the only medical personnel assigned to the finish line were Dr. Rosenberg (a chiropractor) and the event coordinator (a chiropractic [*9]  student), neither of whom were actually at the finish line when Hass collapsed. They further claimed that the AED was in the medical tent located approximately 200 yards away, in the postrace expo area; that no event medical personnel arrived at the scene until 10 minutes after Hass collapsed; and that, when a bystander arrived with the AED at the 11-minute mark, it was too late to help Hass. The Hass Family also found fault with the communications equipment provided by RhodyCo for the Half Marathon. Although the EMS Plan represented that “all event safety personnel” would have “cell phone active radios,” the Hass Family averred that only six or seven radios were provided to the medical team; that no radio was provided to the ambulance or to either chiropractic doctor onsite; and that there was no radio in the medical tent. Finally, the Hass Family presented declarations from several experts indicating that the standard of care for an event like the Half Marathon is to have a competent medical director who is a medical doctor and to follow the medical plan. Moreover, according to one of the Hass Family’s experts, because races like the Half Marathon can disrupt the local 911 system, [*10]  the standard of care additionally requires enough onsite ambulances (and/or backfilling of ambulances) to provide for rapid medical care for runners who collapse due to sudden cardiac arrest, particularly near the finish line.2

As stated above, the trial court initially granted RhodyCo’s summary judgment motion, concluding that the Hass Family’s wrongful death action was barred under theories of primary assumption of the risk and express waiver. The Hass Family then filed a motion for new trial, arguing that the trial court had erred in its legal analysis of the primary assumption of the risk doctrine. In addition, they asserted that all of the trial court’s conclusions with respect to the Release were erroneous. In particular, they argued that they were not required to plead gross negligence in the Complaint and that, in any event, it was an abuse of discretion to deny their request to amend the Complaint to cure any such perceived defect. The Hass Family also provided new evidence that they alleged supported finding a triable issue with respect to gross negligence—the deposition testimony of Dr. Brown, the head of the Agency, stating that nothing in the EMS Plan indicated [*11]  that chiropractic students would be substituted for EMTs at the finish line and that his discussions with RhodyCo regarding the use of chiropractic students was limited to their use on the mobile teams. Dr. Brown also testified that he had never discussed with RhodyCo the propriety of substituting a chiropractic doctor for a medical doctor as race supervisor. RhodyCo opposed the motion for new trial, arguing that the trial court’s initial decision was correct under the law; that Dr. Brown’s deposition testimony should not be considered as the Hass Family had not acted with diligence in producing it; and that, regardless, the statements from the deposition highlighted by the Hass Family were undercut by other deposition testimony.

After hearing, the trial court granted the Hass Family’s new trial motion. Specifically, the court agreed with the Hass Family that primary assumption of the risk was inapplicable on these facts and further determined that the Hass Family should have been allowed to amend the Complaint to plead gross negligence. Although it refused to rule on the existence of a triable issue with respect to gross negligence pending the filing of the amended Complaint, it did [*12]  reject RhodyCo’s argument that the Hass Family had not moved with diligence in taking the deposition of Dr. Brown.

RhodyCo’s notice of appeal and the Hass Family’s notice of cross-appeal now bring the matter before this court.

II. DISCUSSION

A. Standard of Review

CA(1)[] (1) As described above, the procedural posture of this case is somewhat convoluted. Although the trial court initially granted RhodyCo’s summary judgment motion, it subsequently reversed itself on one ground (primary assumption of the risk) and then deferred ruling on another ground it had previously rejected (gross negligence) pending amendment of the Complaint, effectively granting a new trial on both issues. HN1[] Such an order is appealable. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858 [107 Cal. Rptr. 2d 841, 24 P.3d 493] (Aguilar) [noting, in finding appealability under similar circumstances, that it “makes no difference” that an order granting a new trial following an order granting summary judgment “may operate like an order denying summary judgment, which is nonappealable”].) Further, HN2[] although orders granting a new trial are generally examined for abuse of discretion, any determination underlying the new trial order is scrutinized using “the test appropriate for that determination.” (Douglas v. Fidelity National Ins. Co. (2014) 229 Cal.App.4th 392, 407 [177 Cal. Rptr. 3d 271]; see also Aguilar, supra, 25 Cal.4th at pp. 859–860.)

Here, then, [*13]  the trial court’s conclusions with respect to the appropriateness of summary judgment are subject to our de novo review. (Aguilar, supra, 25 Cal.4th at p. 860; In re Automobile Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 150 [204 Cal. Rptr. 3d 330] (Automobile Antitrust Cases).) In this regard, we review the trial court’s ruling; not its rationale. (Automobile Antitrust Cases, supra, 1 Cal.App.5th at p. 150.) “Thus, ‘[t]he sole question properly before us on review of the summary judgment [order] is whether the judge reached the right result … whatever path he [or she] might have taken to get there.'” (Id. at pp. 150–151.)

CA(2)[] (2) Moreover, HN3[] the underlying issues implicated by RhodyCo’s summary judgment motion are also subject to our independent review. For instance, HN4[] “‘[c]ontract principles apply when interpreting a release, and “normally the meaning of contract language, including a release, is a legal question.” [Citation.] “Where, as here, no conflicting parol evidence is introduced concerning the interpretation of the document, ‘construction of the instrument is a question of law, and the appellate court will independently construe the writing.'”‘” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1483 [72 Cal. Rptr. 3d 471] (Cohen); see also Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754–755 [29 Cal. Rptr. 2d 177] (Paralift).) CA(3)[] (3) Similarly, it has long been recognized that HN5[] application of the primary assumption of the risk doctrine is a legal question, to be determined by the courts as a matter of law. (See Kahn, supra, 31 Cal.4th at pp. 1003–1004; see also Honeycutt v. Meridian Sports Club, LLC (2014) 231 Cal.App.4th 251, 257 [179 Cal. Rptr. 3d 473] [“‘[T]he legal question of duty, [*14]  and specifically the question of whether a particular risk is an inherent part of a sport, “is necessarily reached from the common knowledge of judges, and not the opinions of experts”‘”].) In our resolution of this matter, then, we are writing on what is essentially a clean slate, bearing in mind that HN6[] we should resolve any evidentiary doubts in the Hass Family’s favor, given that they are the party opposing summary judgment. (Automobile Antitrust Cases, supra, 1 Cal.App.5th at p. 151 [“In undertaking our analysis, we ‘”accept as true the facts … in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.”‘”].)

B. Express Waiver

During the online registration process for the Half Marathon, Hass was presented with the following warning regarding his need to execute the Release: “Please read any waiver carefully. It includes a release of liability and waiver of legal rights and deprives you of the ability to sue certain parties. Do not agree to this document unless you have read and understood it in its entirety. By agreeing electronically, you acknowledge that you have both read and understood all text presented to you as part of the registration process. You also understand and agree [*15]  that events carry certain inherent dangers and risks which may not be readily foreseeable, including without limitation personal injury, property damage, or death. Your ability to participate in the event(s) is/are subject to your agreement to the waiver and by agreeing herein, you accept and agree to the terms of the waiver and release agreement.” (Italics added.) The document referenced in this warning—which could either be printed out or read in its entirety online—is entitled “Waivers” and reads in pertinent part as follows: “I understand that by registering I have accepted and agreed to the waiver 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 understand 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. [¶] In consideration [*16]  of your accepting this entry … , I, intending to be legally bound, do hereby for myself, my heirs, executors, and/or administrators, waive and release any and all claims for damages I may accrue against … RhodyCo … any and all contractors, their employees, representatives, agents and heirs from any and all injuries that may be suffered by me at or enroute to or from this event. I attest that I am physically fit and sufficiently trained for this strenuous competition. I will assume my own medical and emergency expenses in the event of an accident or other incapacity or injury resulting from or occurring in my participation. …” (Italics added.)3

As stated above, RhodyCo argued in its summary judgment motion that the Release signed by Hass acted as a complete bar to the instant action. The trial court initially agreed, rejecting the Hass Family’s arguments that the wording of the Release was insufficient to exempt RhodyCo from wrongful death claims and that the Release was void on public policy grounds. In addition, because gross negligence was not specifically alleged in the Complaint, the court refused to consider the Hass Family’s third argument—that RhodyCo [*17]  had engaged in gross negligence falling outside of the scope of the Release. However, the trial court later granted a new trial on this issue, stating it would allow the Hass Family to amend its Complaint to cure this defect. The court declined to determine whether a triable issue as to RhodyCo’s alleged gross negligence existed, pending the filing of the amendment. In this appeal and cross-appeal, the parties raise all three of these issues involving the impact of the executed Release as potential grounds either supporting or undermining the trial court’s summary judgment decision. We therefore address each contention in turn.

1. Waiver of Wrongful Death Claim

CA(4)[] (4) Our high court has explained that HN7[] wrongful death claims “are not derivative claims but are independent actions accruing to a decedent’s heirs.” (Ruiz v. Podolsky (2010) 50 Cal.4th 838, 841 [114 Cal. Rptr. 3d 263, 237 P.3d 584]; see also Madison v. Superior Court (1988) 203 Cal.App.3d 589, 596 [250 Cal. Rptr. 299] (Madison) [“‘The longstanding rule is that a wrongful death action is a separate and distinct right belonging to the heirs, and it does not arise until the death of the decedent.'”].) “Because a wrongful death claim is not derivative of the decedent’s claims, an agreement by the decedent to release or waive liability for [his or] her death does not necessarily bar a [*18]  subsequent wrongful death cause of action … .” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 725 [183 Cal. Rptr. 3d 234].) Rather, a distinction is made in these circumstances “between the legal ineffectiveness of a decedent’s preinjury release of his [or her] heirs'[] subsequent wrongful death action and the legal effectiveness of an express release of negligence by a decedent which provides a defendant with ‘a complete defense.‘” (Madison, supra, 203 Cal.App.3d at p. 597.) In other words, although a decedent cannot release or waive a subsequent wrongful death claim by the decedent’s heirs, that decedent’s “express agreement to waive the defendant’s negligence and assume all risks” acts as a complete defense to such a wrongful death action. (Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758, 763–764 [276 Cal. Rptr. 672] (Saenz); see also Ruiz, supra, 50 Cal.4th at pp. 851–852 [“although an individual involved in a dangerous activity cannot by signing a release extinguish his [or her] heirs’ wrongful death claim, the heirs will be bound by the decedent’s agreement to waive a defendant’s negligence and assume all risk”].) Under such circumstances, the releasor is essentially agreeing not to expect the other party to act carefully, thus eliminating that person’s duty of care. (Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1, 7 [236 Cal. Rptr. 181] (Coates).)

As an example, in Coates, supra, 191 Cal.App.3d 1, the decedent, a dirtbike rider, signed a release before using the defendant’s motorcycle park. (Id. at pp. 3–4.) After [*19]  the decedent was fatally injured, his heirs sued, arguing that the defendant had been negligent in the design and maintenance of the trail on which the decedent was hurt. (Ibid.) The appellate court agreed with the trial court that the decedent’s release barred the subsequent wrongful death action. Specifically, the court noted that, in the first half of the release, the decedent “expressly waived liability for injuries or death which might result from respondents’ ordinary negligence in the future. In the second half, he expressly assumed all risk of injury from dangers inherent in dirtbike riding on respondents’ premises.” (Id. at p. 7; see also id. at p. 4 & fn. 2.) The court concluded that this express assumption of the risk also bound the decedent’s heirs. (Id. at p. 8.) The court additionally opined that whether or not the decedent had “sufficient knowledge of the particular risk which resulted in his death” was irrelevant under the circumstances of the case because “knowledge of a particular risk is unnecessary when there is an express agreement to assume all risk.” (Id. at pp. 8–9.)

CA(5)[] (5) Our own decision in Saenz, supra, 226 Cal.App.3d 758 is in accord. There, the decedent fell out of a raft on a white-water rafting trip hosted by Whitewater, a commercial rafting [*20]  company, and drowned. (Id. at pp. 759, 762.) Prior to this fatal incident, the decedent had signed a release, stating: “‘I am aware that certain risks and dangers may occur on any river trip with Whitewater … . These risks include, but are not limited to, hazards of and injury to person and property while traveling in rafts on the river, accident or illness in remote places without medical facilities, the forces of nature … . [¶] … I hereby assume all of the above risks and, except in the case of gross negligence, will hold Whitewater … harmless from any and all liability, actions, causes of action, debts, claims, and demands of every kind and nature whatsoever which I now have or which may arise out of or in connection with my trip or participation in any activities with Whitewater … .’ The agreement further stated it operated as a release and assumption of risk for his heirs.” (Id. at p. 763, fn. 7, italics added.) Noting that “drafting a legally valid release is no easy task,” we opined that HN8[] “‘[t]o be effective, a release need not achieve perfection … . It suffices that a release be clear, unambiguous, and explicit, and that it express an agreement not to hold the released party liable for negligence.'” [*21]  (Id. at p. 765.) Given that the plain language of the Saenz release indicated that the decedent consented to assume the risks associated with white-water rafting and release Whitewater from any and all liability arising out of the trip, the fact that the exculpatory sentence did not explicitly state that it covered Whitewater’s negligence and did not specifically mention death or drowning was insufficient to invalidate the otherwise clear release. (Id. at pp. 765–766; see also Cohen, supra, 159 Cal.App.4th at p. 1485 [“‘If a release of all liability is given, the release applies to any negligence of the defendant.'” (italics added)].)

Indeed, generally speaking, “‘[w]hether a release bars recovery against a negligent party “turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control.”‘” (Sanchez v. Bally’s Total Fitness Corp. (1998) 68 Cal.App.4th 62, 66–67 [79 Cal. Rptr. 2d 902].) Moreover, in this regard, “‘[o]ur analysis is not based on the mechanical application of some formula. The presence or absence of the words “negligence” or “bodily injury” is not dispositive. We look instead to the intention of the parties as it appears in the release forms before the court.'” (Id. at p. 67; see also Cohen, supra, 159 Cal.App.4th at p. 1488
[noting that release should be understood as speaking to an ordinary person untrained in the law].) By [*22]  signing the Release in the instant case, we conclude that Hass intended both to assume all risks associated with his participation in the race, up to and including the risk of death, and to release RhodyCo (on behalf of himself and his heirs) from any and all liability with respect to any injuries he might suffer as a result of his participation. This was sufficient to block the Hass Family’s wrongful death claim for ordinary negligence.

The Hass Family, however, argues that the Release executed by Hass in this case is ineffective as a defense to their wrongful death claim because the express assumption of the risk language is limited solely to risks “inherent” in race participation—I “accept the inherent dangers and risks … that arise from participation in the event”—which does not include any potentially negligent conduct by RhodyCo that may have increased those inherent risks. They further contend that the release language contained in the next sentence of the Release is similarly ineffectual in the wrongful death context because it is limited to “any and all claims for damages I [i.e., Hass] may accrue,” thus excluding claims accrued by his heirs. We are not persuaded.

HN9[] CA(6)[] (6) “With [*23]  respect to the question of express waiver, the legal issue is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release.” (Cohen, supra, 159 Cal.App.4th at p. 1484.) Here, reading the Release as a whole—as would an ordinary person untrained in the law—we are convinced it expresses Hass’s intent to assume all risks arising from his participation in the Half Marathon, including any risks related to RhodyCo’s negligence. In particular, and as we remarked in Saenz (also a wrongful death action), we believe that the juxtaposition of the assumption of risk language and the blanket release language conveys the message that Hass assumed all risks related to participation in the Half Marathon while excusing RhodyCo from any liability arising from the race. (See Paralift, supra, 23 Cal.App.4th at pp. 756–757 [considering broad release language as well as assumption language in upholding release in wrongful death action]; Saenz, supra, 226 Cal.App.3d at p. 765 [same]; Coates, supra, 191 Cal.App.3d at pp. 7, 9 & fn. 2 [release valid where decedent waived all liability for injury or death and assumed risk of injury from dangers inherent in riding dirt bike on premises]; see also National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 937–938, 940 [264 Cal. Rptr. 44] (Street Racers) [in case claiming lack of competent medical [*24]  attention/rescue equipment, release is valid even though it included an assumption of “‘all risk inherent in racing'” because it also released “in unqualified terms … all claims arising from plaintiff’s participation in the race”].)4

We similarly reject the Hass Family’s assertion that the assumption of risk language used in the Release—I “accept the inherent dangers and risks … that arise from participation in the event”—is ambiguous as “accept” in this context could reasonably mean “understand” as well as “assume.” (See Cohen, supra, 159 Cal.App.4th at p. 1485 [an ambiguity in a release exists when a party can identify an alternative, semantically reasonable, candidate of meaning; an ambiguity “‘should normally be construed against the drafter'” of the release].) The complete sentence at issue reads: “By agreeing electronically, I have acknowledged that I have both read and understand 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 [*25]  participation in the event.” (Italics added.) Since the signator, in the first part of the sentence, has already acknowledged understanding the contents of the waiver—which includes the statement that there are risks inherent in participating—it seems unlikely that he or she would be asked to acknowledge such an understanding a second time in the latter part of the sentence. Rather, the much more reasonable interpretation of this second clause is that the signator is agreeing to shoulder—i.e., take on or otherwise assume—the dangers and risks inherent in the activity.

Finally, in construing the Release, we are cognizant of the fact that “[i]n cases arising from hazardous recreational pursuits, to permit released claims to be brought to trial defeats the purpose for which releases are requested and given, regardless of which party ultimately wins the verdict. Defense costs are devastating. Unless courts are willing to dismiss such actions without trial, many popular and lawful recreational activities are destined for extinction.” (Street Racers, supra, 215 Cal.App.3d at p. 938.) While certainly imperfect, we believe that the Release was intended to be, and was accepted as, a comprehensive assumption of all risks associated [*26]  with race participation. We therefore agree with the trial court that the Release constitutes a complete defense to a wrongful death action based on ordinary negligence.

2. Public Policy

CA(7)[] (7) The Hass Family, however, argues that, even if the Release might otherwise be deemed a valid bar to their negligence claim, it is void as against public policy to the extent it purports to apply to the provision of emergency medical services, as such services implicate the public interest. Civil Code section 1668 provides that “[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”
HN10[] A contractual provision exculpating a party from liability is invalid under this statute if it “affects the public interest.” (Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 96, 98 [32 Cal. Rptr. 33, 383 P.2d 441] (Tunkl).)

CA(8)[] (8) In Tunkl, supra, 60 Cal.2d 92, HN11[] our high court identified six characteristics typical of contracts affecting the public interest: “‘[1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often [*27]  a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.'” (Id. at pp. 98–101, fns. omitted.) Not all of these factors need to be present for an exculpatory contract to be voided as affecting the public interest. (Id. at p. 98.) However, in Tunkl, the Supreme Court found all six factors were implicated and, on that basis, concluded that a release from liability [*28]  for future negligence imposed as a condition for admission to a charitable research hospital affected the public interest and was thus invalid. (Id. at pp. 94, 101–102.) In making this determination, our high court found “hardly open to question” the fact that “the services of the hospital to those members of the public who are in special need of the particular skill of its staff and facilities constitute a practical and crucial necessity.” (Id. at p. 101.)

In contrast, California courts have consistently declined to apply the Tunkl factors to invalidate exculpatory agreements in the recreational sports context. (See Street Racers, supra, 215 Cal.App.3d 934 [upholding release in case claiming lack of competent medical attention/rescue equipment]; see also Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1259 [128 Cal. Rptr. 2d 885] [fall from chairlift during ski lesson]; Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 161–162 [21 Cal. Rptr. 2d 245] [swim class]; Paralift, supra, 23 Cal.App.4th at p. 756 [skydiving]; Saenz, supra, 226 Cal.App.3d at p. 764 [commercial river rafting]; Madison, supra, 203 Cal.App.3d at pp. 593, 597–599 [scuba diving]; Okura v. United States Cycling Federation (1986) 186 Cal.App.3d 1462, 1464, 1466–1468 [231 Cal. Rptr. 429] [bicycle race].) Although they acknowledge the current state of California law, the Hass Family invites us to revisit the issue based on an analysis of the Tunkl factors by the Washington Supreme Court in Vodopest v. MacGregor (1996) 128 Wn.2d 840 [913 P.2d 779] (Vodopest). In that case, the plaintiff agreed to join a mountain trek that was designed as a research trip to test the efficacy of a breathing technique used to eliminate high altitude [*29]  sickness. (Id. at pp. 843–844.) Portions of the research proposal were submitted to the University of Washington Human Subjects Review Committee (University) for approval. (Id. at p. 845.) Prior to the trek, the plaintiff executed a broad release in researcher MacGregor’s favor. (Ibid.) A similar release which included the University was rejected by the University as invalid because “releases from liability for negligence are not allowed as a part of any approved study, as the federal government does not allow exculpatory language in human subject experimentation.” (Id. at p. 846.) Ultimately, the plaintiff suffered a cerebral edema from altitude sickness on the trek and sued MacGregor for negligence and gross negligence. (Id. at p. 847.)

The sole issue on appeal in Vodopest was whether the release signed by the plaintiff violated public policy and was thus unenforceable. (Vodopest, supra, 128 Wn.2d at p. 848.) The court noted that medical research was a significant component of the trek and that the “critical question” in the case was “whether the alleged conduct giving rise to the cause of action for negligence occurred in the context of the mountain trekking or within the scope of the research project.” (Id. at pp. 850, 852–853.) It concluded—after consideration of the six Tunkl factors—that to [*30]  the extent MacGregor attempted to use the release “to release herself as a researcher from negligent acts performed in the furtherance of medical research,” it was unenforceable as violative of public policy. (Id. at p. 853; see id. at pp. 853–862.) In particular, the court opined that “there are critical public policy reasons to maintain the usual standard of care in settings where one person is using another as a medical research subject.” (Id. at p. 856.)

CA(9)[] (9) Vodopest is obviously distinguishable on its facts and we reject the Hass Family’s invitation to depart from long-existing California precedent based on this Washington decision. HN12[] Many recreational activities may require the ancillary provision of first aid or emergency medical services by event organizers, but that fact alone does not change such pursuits into anything other than the voluntary leisure pastimes that they are. In particular, with reference to the Tunkl factors, we note that half marathons are not an activity of great importance to the general public and are certainly not a matter of necessity. No racer is required to enter a particular event or to run it in any particular way. (Cf. Okura, supra, 186 Cal.App.3d at p. 1468 [bicycle race participant retains complete control and can drop out of the race or [*31]  adjust his pace at any time; organizers have no control over how the participant approaches the race].) The Tunkl court, itself, made clear that such private, voluntary exculpatory contracts are permissible: “While obviously no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party, the above circumstances [admission to research hospital] pose a different situation. In this situation the releasing party does not really acquiesce voluntarily in the contractual shifting of the risk, nor can we be reasonably certain that he receives an adequate consideration for the transfer.” (Tunkl, supra, 60 Cal.2d at p. 101.) Here, Hass was permitted to make the voluntary decision, in return for being allowed to participate in the race, to shoulder the risk of RhodyCo’s potential negligence. “‘”‘The power of the courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and … should be exercised only in cases free from doubt.'”‘” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777, fn. 53 [62 Cal. Rptr. 3d 527, 161 P.3d 1095] (Santa Barbara).) We decline to exercise it here.

3. Gross Negligence

CA(10)[] (10) The final issue with respect to the impact [*32]  of the Release in this matter is whether the Hass Family has raised a triable issue of material fact as to whether RhodyCo acted with gross negligence in its management of the Half Marathon. Even if the Release was sufficient to block a claim for ordinary negligence—as we have held—HN13[] it is insufficient, as a matter of public policy, to preclude liability for gross negligence. (Santa Barbara, supra, 41 Cal.4th at p. 751 [“an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy”].) For purposes of this distinction, ordinary negligence “consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” (Id. at pp. 753–754.) “‘[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty,'” amounts to ordinary negligence. (Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 48 [135 Cal.Rptr. 761].) In contrast, “‘[g]ross negligence‘ long has been defined in California and other jurisdictions as either a ‘”‘want of even scant care'”‘ or ‘”‘an extreme departure from the ordinary standard of conduct.'”‘” (Santa Barbara, supra, 41 Cal.4th at p. 754.) “‘“[G]ross negligence” falls short of a reckless disregard of consequences, [*33]  and differs from ordinary negligence only in degree, and not in kind.‘” (Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 197 [167 Cal. Rptr. 881]; see also Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 881 [208 Cal. Rptr. 3d 792].) In assessing where on the spectrum a particular negligent act falls, “‘[t]he amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it.'” (Gore, supra, 110 Cal.App.3d at p. 198.)

CA(11)[] (11) In the present case, we agree with both parties that the trial court erred by refusing to consider the Hass Family’s claim of gross negligence because they had not pled gross negligence in their Complaint. Several appellate courts have opined that California does not recognize a separate cause of action for gross negligence. (Saenz, supra, 226 Cal.App.3d at p. 766, fn. 9; Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 108, fn. 5 [243 Cal. Rptr. 536], disapproved on other grounds in Knight v. Jewett (1992) 3 Cal.4th 296, 306–309 [11 Cal. Rptr. 2d 2, 834 P.2d 696] (Knight).) In Santa Barbara, the Supreme Court did not definitively resolve this issue, commenting only that it did not view its holding invalidating releases for future gross negligence “as recognizing a cause of action for gross negligence.” (Santa Barbara, supra, 41 Cal.4th at pp. 779–780.) Instead, as is more relevant here, the high court went on to declare: “Our holding simply imposes a limitation on the defense that is provided by a release. HN14[] A plaintiff is not required to anticipate such a defense [citation]; [*34]  instead, the defendant bears the burden of raising the defense and establishing the validity of a release as applied to the case at hand.” (Id. at 780, fn. 58.) Thus, regardless of whether gross negligence can be a separate cause of action, and/or the Hass Family could have alleged gross negligence in the Complaint in anticipation of RhodyCo’s likely defense, they were not required to do so. The consequences of this pleading decision in the context of a summary judgment motion were summarized in Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715 [22 Cal.Rptr.2d 781]—which involved alleged negligence by a ski rental company in the adjustment of ski bindings—as follows: “Had plaintiff anticipated the defense of the release agreement in his complaint and alleged facts suggesting [its invalidity], the matter would have been a material issue which defendants would have had to refute in order to obtain summary adjudication.” (Id. at pp. 1723–1724, 1739–1740; see also id. at p. 1740 [“‘If … the plaintiff pleads several theories or anticipates affirmative defenses by a show of excusing events or conditions, the challenge to the opponent is made by the complaint, requiring the moving defendant to affirmatively react to each theory and excusing or justifying event, or condition which supports a theory, if the motion is [*35]  to be successful'”].) In contrast, “[s]ince plaintiff’s complaint said nothing about the agreement, the matter of [its validity] was not a material issue for purposes of defendants’ initial showing on its motion for summary adjudication. [The defendant] met its initial burden by adducing evidence of the … agreement and plaintiff’s execution. The burden thereafter shifted to plaintiff to raise a triable issue of material fact.” (Id. at p. 1740.)

Similarly, here, although the Hass Family set forth certain facts in the Complaint which could be viewed as supporting a claim of gross negligence, it cannot be said that the Complaint—which does not even mention the Release—anticipated the Release defense or raised gross negligence as a material issue which RhodyCo was required to refute in order to succeed on summary judgment. Instead, RhodyCo met its initial burden by producing evidence of the existence of the Release and its execution by Hass. The burden then shifted to the Hass Family to raise a triable issue of material fact as to gross negligence.

CA(12)[] (12) Viewing the evidence in the light most favorable to the Hass Family, we believe they have met their burden in this case, making summary judgment inappropriate. [*36] 5
It is true that HN15[] summary judgment on the issue of gross negligence may be warranted where the facts fail to establish an extreme departure from the ordinary standard of care as a matter of law. However, “[g]enerally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence.” (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358 [257 Cal. Rptr. 356].) In this case, there are clearly factual and credibility questions that need to be answered regarding exactly what was required under the terms of the EMS Plan. For example, there is conflicting evidence as to whether the “finish line” included the crowded postrace expo area for purposes of compliance with the EMS Plan, and it must also be established exactly what medical personnel and equipment were required to be stationed at the finish line. We will not here catalogue every conceivable argument that the Hass Family could present in an attempt to prove grossly negligent conduct by RhodyCo in this context. We conclude only that, viewing the evidence in the light most favorable to them, it is possible that the Hass Family could establish that, despite the potential for grave risk of harm in the sport of long-distance running, RhodyCo failed to implement the EMS Plan in several [*37]  material ways and that its management of the Half Marathon—in particular with respect to the allocation of medical resources to the finish line and communication among race personnel—constituted an extreme departure from the standard of care for events of its type. This is sufficient to raise a triable issue of fact with respect to gross negligence.
6

In sum, we have concluded that the Release is not void on public policy grounds and that it is adequate to bar the Hass Family’s action for ordinary negligence. However, since we have additionally determined that a triable issue of material fact exists as to whether RhodyCo’s provision of emergency medical services was grossly negligent, the trial court’s new trial order reversing its initial grant of summary judgment was appropriate, unless the Hass Family’s negligence action is completely barred by the doctrine of primary assumption of the risk. We therefore turn finally to that question.

C. Primary Assumption of the Risk

CA(13)[] (13) In Knight, supra, 3 Cal.4th 296, the Supreme Court considered the continued applicability of the assumption of the risk doctrine in light of the court’s prior adoption of comparative fault principles. (Id. at pp. 299–300.) Specifically, [*38]  HN16[] our high court distinguished between two different types of assumption of the risk: primary assumption of the risk—”those instances in which the assumption of risk doctrine embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk”—and secondary assumption of
risk—”those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.” (Id. at p. 308.) When applicable, primary assumption of the risk “operate[s] as a complete bar to the plaintiff’s recovery.” (Id. at p. 315.) In contrast, secondary assumption of the risk “is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.” (Ibid.; id. at p. 314 [“a jury in a ‘secondary assumption of risk’ case would be entitled to take into consideration a plaintiff’s voluntary action in choosing to engage in an unusually risky sport … in determining whether the plaintiff properly should bear some share of responsibility for the injuries he or she suffered”]; see also Kahn, supra, 31 Cal.4th at p. 1003 [in a secondary assumption [*39]  of the risk case, “the plaintiff’s knowing and voluntary acceptance of the risk functions as a form of contributory negligence“].)

CA(14)[] (14) The Supreme Court further concluded in Knight that HN17[] “the question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm … [turns] on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” (Knight, supra, 3 Cal.4th at p. 309.) Although Knight dealt with the duty owed by a coparticipant in recreational activity (an informal touch football game on Super Bowl Sunday), it also discussed the potential liability here at issue, that of operators and organizers of recreational events. (Id. at pp. 300–301, 315–317.) For instance, the Knight court opined: “In the sports setting … conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. Thus, although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. [Citation.] … [¶] Although defendants generally [*40]  have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant.” (Id. at pp. 315–316, italics added.) The high court also cited with approval a case involving an injury from a thrown baseball bat in which the jury returned a verdict in favor of the baseball player (since throwing bats is inherent in the game), but implicitly recognized “the duty of the stadium owner to provide a reasonably safe stadium with regard to the relatively common (but particularly dangerous) hazard of a thrown bat.” (Id. at p. 317.) Finally, Knight acknowledged a line of cases in which the duty of an operator is defined “by reference to the steps the [*41]  sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport.” (Id. at p. 317.)

CA(15)[] (15) Twenty years later, in Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148 [150 Cal. Rptr. 3d 551, 290 P.3d 1158] (Nalwa), the Supreme Court revisited the scope of the primary assumption of the risk doctrine in the specific context of the duty owed by an operator/organizer. The Nalwa court summarized the doctrine as follows: HN18[] “‘Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities—and, specifically, many sports—are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.’ [Citation.] The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. [Citations.] Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” (Id. at p. 1154.) Applying this analytical framework to the case at hand, the high court concluded that the operator of a bumper car ride at an amusement park had [*42]  no duty to protect the plaintiff from the collision which fractured her wrist. (Id. at pp. 1152, 1157–1158, 1162–1163.) Rather, “[l]ow-speed collisions between the padded, independently operated cars are inherent in—are the whole point of—a bumper car ride.” (Id. at p. 1157.) Thus, “‘[i]mposing liability would have the likely effect of the amusement park either eliminating the ride altogether or altering its character to such a degree—by, for example, significantly decreasing the speed at which the minicars could operate—that the fun of bumping would be eliminated, thereby discouraging patrons from riding.'” (Id. at pp. 1157–1158.)

Here, RhodyCo asserts that the primary assumption of the risk doctrine serves as a complete bar to the Hass Family’s negligence claim, and thus the trial court erred in concluding otherwise. Specifically, RhodyCo argues that the risk of cardiac arrest is inherent to the sport of long-distance running and that, since it did nothing to increase Hass’s risk of suffering cardiac arrest in the way it conducted the Half Marathon, it owed no further duty to the Hass Family. In particular, according to RhodyCo—under the test articulated in Nalwa—it had no duty to minimize Hass’s risk of death from cardiac arrest. Or, put another way, it had no duty to [*43]  reduce the natural consequences of Hass’s cardiac arrest or increase his chances of recovery.

In taking this position, RhodyCo acknowledges that the appellate court in Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173 [119 Cal. Rptr. 2d 497] (Saffro) held that a race producer has a duty to conduct a “reasonably safe event,” which “requires it to take reasonable steps to ‘minimize the risks without altering the nature of the sport.'” (Id. at p. 175.) In Saffro, a marathon runner suffered a grand mal seizure after a race and was diagnosed with severe hyponatremia, likely caused by his inability to consume adequate amounts of water and fluids containing electrolytes (such as Gatorade) during the race. (Id. at p. 176.) Although the race organizer sent written materials to participants prior to the event indicating that such liquids would be provided in sufficient quantities, the evidence suggested that they were not. (Id. at pp. 176–177.) The trial court granted summary judgment in favor of the race organizer, concluding that hyponatremia is an inherent risk of running a marathon. (Id. at pp. 177–178.) The appellate court reversed, stating that a race organizer’s duty to conduct a reasonably safe event includes “the obligation to minimize the risks of dehydration and hyponatremia by providing adequate water and electrolyte [*44]  fluids,” especially where the race organizer had made representations to the participants that such fluids would be available. (Id. at p. 179.) Since Saffro had presented sufficient evidence to create a triable issue of fact as to whether the race organizer had breached this duty, summary judgment was improper. (Id. at pp. 179–181; see also Rosencrans, supra, 192 Cal.App.4th 1072, 1079, 1082–1083 [although collisions with coparticipants are an inherent risk of motocross, operator of a motocross track has a duty to minimize this risk without altering the nature of the sport by providing a warning system, such as caution flaggers; triable issue of fact existed as to whether failure to provide a caution flagger constituted gross negligence].) RhodyCo claims that Saffro is inapplicable both because it is a secondary assumption of the risk case and because the “duty to minimize risk” language from Knight that Saffro and other cases have “latched onto” is dictum which has been abrogated by the Supreme Court’s subsequent decision in Nalwa.

We disagree with RhodyCo that the Nalwa court’s formulation of the primary assumption of the risk doctrine somehow supplanted the high court’s earlier discussion of the matter in Knight, particularly with respect to the Supreme Court’s statements [*45]  regarding an organizer/operator’s duty “to minimize the risks without altering the nature of the sport.” (Knight, supra, 3 Cal.4th at p. 317.) Rather, Nalwa—far from disagreeing with Knight—referenced it as the “seminal decision explicating and applying primary assumption of risk in the recreational context.” (Nalwa, supra, 55 Cal.4th at p. 1155.) Moreover, Nalwa‘s formulation of the limited duty existing in a primary assumption of the risk case—”the duty not to act so as to increase the risk of injury over that inherent in the activity”—comes directly from Knight. (Nalwa, supra, 55 Cal.4th at pp. 1154–1155, 1162–1163.) Finally, and most importantly for our purposes, Nalwa did not reject cases such as Saffro and Rosencrans which concluded, based on language found in Knight, that operators/organizers have a duty to minimize risks without altering the nature of the sport. (Nalwa, supra, 55 Cal.4th at p. 1163 & fn. 7.) Instead, it characterized them as “decisions addressing the duty to reduce extrinsic risks of an activity” and found them distinguishable in that particular case because it concluded that the risk of injury from bumping—at any angle—was not an extrinsic risk, but was instead a risk inherent to riding bumper cars. (Id. at pp. 1157–1158, 1163.)

CA(16)[] (16) Indeed, Nalwa expressly states that “[t]he operator of a bumper car ride might violate its ‘duty to use due care not to [*46]  increase the risks to a participant over and above those inherent’ in the activity (Knight, supra, 3 Cal.4th at p. 316) by failing to provide routine safety measures such as seatbelts, functioning bumpers and appropriate speed control.” (Nalwa, supra, 55 Cal.4th at p. 1163.) Thus, Nalwa actually reaffirms Knight‘s conclusions regarding the duties owed to participants by operators/organizers of recreational activities. In short, HN19[] such operators and organizers have two distinct duties: the limited duty not to increase the inherent risks of an activity under the primary assumption of the risk doctrine and the ordinary duty of due care with respect to the extrinsic risks of the activity, which should reasonably be minimized to the extent possible without altering the nature of the activity. Nalwa explains the interplay between these two types of duties by confirming that an operator’s or organizer’s negligence with respect to extrinsic risks “might violate its ‘duty to use due care not to increase the risks to a participant over and above those inherent’ in the activity.” (Nalwa, supra, 55 Cal.4th at p. 1163.)

In the present case, both parties acknowledge that cardiac arrest is an inherent risk of the sport of long-distance running. Further, it is not suggested on these facts that RhodyCo did [*47]  anything that increased the risk that Hass would have a heart attack.7 Moreover, requiring runners to slow down or take breaks in order to decrease this inherent risk would alter the character of racing to such a degree that it would likely discourage runners from participating. However, as both Knight and Nalwa teach us, this is not the end of the inquiry. While the operator or organizer of a recreational activity has no duty to decrease risks inherent to the sport, it does have a duty to reasonably minimize extrinsic risks so as not to unreasonably expose participants to an increased risk of harm. (Nalwa, supra, 55 Cal.4th at p. 1163 [while risk of injury from bumping bumper cars is generally low, an operator could violate its duty not to increase this inherent risk by failing to provide routine safety measures]; Knight, supra, 3 Cal.4th at pp. 315–316 [negligent maintenance of towropes by ski resort could violate duty not to expose skiers to increased risk of harm]; Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1297–1302 [222 Cal. Rptr. 3d 633] [crash landings caused by failure to safely pilot a hot air balloon are an inherent risk of hot air ballooning, but an operator has a duty not to increase that risk by failing to instruct participants on safe landing procedures, a customary practice in the ballooning industry]; Jimenez v. Roseville City School Dist. (2016) 247 Cal.App.4th 594, 610–611 [202 Cal. Rptr. 3d 536] [although [*48]  contact with the floor is an inherent risk in dancing, school may have increased student’s risk of harm through failure to properly disseminate its no-flip policy]; Rosencrans, supra, 192 Cal.App.4th at pp. 1083–1086 [negligent failure to provide collision warning system in motocross]; Saffro, supra, 98 Cal.App.4th at pp. 175, 179–181 [duty not to increase risk of dehydration and hyponatremia by unreasonably failing to provide adequate fluids]; Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 364–367 [114 Cal. Rptr. 2d 265] [although falling is an inherent risk of skiing, failure to mark off race area containing jumps which an ordinary skier would not expect to encounter may breach duty not to increase inherent risk]; Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127 [40 Cal. Rptr. 2d 249] [although being hit by a golf ball is an inherent risk of golfing, golf course owner had a duty to design course to minimize the risk of being hit where possible without altering the nature of golf].) As the Fourth District recently opined in Grotheer, “[w]hat the primary assumption of risk doctrine does not do … is absolve operators of any obligation to protect the safety of their customers. (Knight, supra, 3 Cal.4th at pp. 317–318.) As a general rule, where an operator can take a measure that would increase safety and minimize the risks of the activity without also altering the nature of the activity, the operator is required to do so.” (Grotheer, supra, 14 Cal.App.5th at p. 1300.) And, in Solis, the appellate court succinctly [*49]  illustrated the issue raised by these cases as follows: “[F]alling off a horse is an inherent risk of horseback riding. But if a person put a barrel in the middle of the Churchill Downs racetrack, causing a collision and fall, we would not say that person owed no duty to the injured riders, because falling is an inherent risk of horseback riding.” (Solis, supra, 94 Cal.App.4th at p. 365.)

When viewed under this analytical framework, Rotolo v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307 [59 Cal. Rptr. 3d 770], disapproved on another ground as stated in Verdugo v. Target Corp. (2014) 59 Cal.4th 312, 327 [173 Cal. Rptr. 3d 662, 327 P.3d 774], and Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8 [45 Cal. Rptr. 2d 855]—two cases relied upon by RhodyCo—are not inconsistent. In Rotolo, parents of a teenager who died as a result of sudden cardiac arrest while playing ice hockey sued the ice hockey facility for wrongful death, claiming that the facility had a duty to notify facility users of the existence and location of the facility’s AED. (Rotolo, supra, 151 Cal.App.4th at p. 313.) The appellate court disagreed, noting that sudden cardiac arrest is a risk inherent in playing strenuous sports and that the facility had done nothing to increase this risk. (Id. at p. 334.) During the course of its analysis, the Rotolo court stated: “We have found no authority for the proposition that a sports facility operator has a duty to reduce the effects of an injury that is an inherent risk in the sport, or to increase [*50]  the chances of full recovery of a participant who has suffered such a sports-related injury, or to give notice regarding any first aid equipment that may be available for such a purpose.” (Id. at pp. 334–335.) In making this determination, however, the Rotolo court searched exhaustively for a duty that the facility could have breached in this context and could not find one. (Id. at pp. 319–339.) In particular, it noted that the facility had not breached its duties to keep the property in a reasonably safe condition or to summon emergency medical aid.8 (Rotolo, at pp. 316–317, 332–334.) Since the sports facility had not acted negligently with respect to any risks extrinsic to the sport of hockey, thereby increasing its inherent risks, the primary assumption of the risk doctrine barred recovery. (Id. at pp. 334–335.) Similarly, in Connelly, the plaintiff argued that the ski resort had insufficiently padded a ski lift tower, thereby causing him serious injury when he collided with it. (Connelly, supra, 39 Cal.App.4th at pp. 10–11.) The appellate court concluded that colliding with a ski lift tower is an inherent risk of skiing and that the ski resort had done nothing to increase this risk by padding the towers, which the resort had no duty to do in the first place. (Id. at pp. 12–13.) In essence, the court concluded that the ski [*51]  resort had not breached its underlying duty to provide a reasonably safe ski resort and thus the primary assumption of the risk doctrine barred the plaintiff’s negligence action. (See id. at pp. 11–14.)

CA(17)[] (17) It is undisputed in this case that RhodyCo has provided event management and production services for “high profile” running and walking events for over 25 years and that, while these events involved over 1.5 million participants, Hass was the first fatality. Thus, while death from cardiac arrest is undeniably a risk associated with long-distance running, it appears from RhodyCo’s own facts to be a slight one. The question therefore remains whether RhodyCo, as the organizer of the Half Marathon, acted negligently in its provision of emergency medical services—a risk extrinsic to the sport of long-distance running—in such a way that it exposed Hass to an increased risk of harm over and above that generally inherent in the activity itself. Since we have previously concluded that the Hass Family has raised a triable issue of fact as to whether RhodyCo was grossly negligent in this regard, the primary assumption of the risk doctrine does not act as a complete bar to the present negligence action. [*52] 9 The trial court’s decision to reverse itself on this ground and allow the case to continue was therefore not error.

CA(18)[] (18) As a final matter, we note that HN20[] imposing a duty of due care with respect to “extrinsic” risks for operators and organizers of recreational activities makes sense based on the policies underlying the primary assumption of the risk doctrine. As stated above and as articulated in Nalwa, supra, 55 Cal.4th at pages 1156–1157: “The primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty ‘would work a basic alteration—or cause abandonment’ of the activity. … [¶] … Allowing voluntary participants in an active recreational pursuit to sue other participants or sponsors for failing to eliminate or mitigate the activity’s inherent risks would threaten the activity’s very existence and nature.” (Id. at pp. 1156–1157.) Moreover, “active recreation, because it involves physical activity and is not essential to daily life, is particularly vulnerable to the chilling effects [*53]  of potential tort liability for ordinary negligence.” (Id. at p. 1157.) The Nalwa court counseled that the doctrine’s parameters should be drawn according to this underlying policy goal. (Ibid.) Obviously, requiring an operator or organizer of recreational activities to provide a reasonably safe event, reasonably maintained attractions, and/or customary safety warnings—far from chilling vigorous participation in such activities—would almost certainly increase their attractiveness to potential participants. Moreover, an owner or event organizer is still protected from liability with respect to the inherent risks of these activities. And, given that participation in these recreational pursuits is almost always contingent on the signing of a release, such owners and organizers are generally also relieved of the consequences of their ordinary negligence. Allowing owners and organizers to avoid accountability for their gross negligence in this context, based on the primary assumption of the risk doctrine, would contravene public policy, not support it. (Santa Barbara, supra, 41 Cal.4th at pp. 750–751; see also id. at pp. 767–776 [rejecting as unsupported by empirical evidence the assertion that refusing to uphold agreements releasing liability for future gross negligence [*54]  will lead to the extinction of many popular and lawful recreational activities].)

III. DISPOSITION

The judgment is affirmed in part and reversed in part, and the matter remanded for further proceedings consistent with this opinion. In particular, the trial court is instructed to enter an order denying RhodyCo’s motion for summary judgment. The Hass Family is entitled to its costs on appeal.

REARDON, J.

We concur:

STREETER, Acting P. J.

SMITH, J.*


A loss of consortium claim started as a way to compensate a husband for the loss of his wife and the duties she performed in the home, including sex.

In most states, a loss of consortium claim is a derivative claim, meaning that the claim is successful if the original claim, the husband’s claim is successful.

In Maine, a loss of consortium claim may be derivative or independent and is based on a statute.

Hardy et al. v. St. Clair d/b/a Wiscasset Raceway,1999 ME 142; 739 A.2d 368; 1999 Me. LEXIS 161

State: Maine, Supreme Judicial Court of Maine

Plaintiff: Brent D. Hardy et al.

Defendant: David St. Clair d/b/a Wiscasset Raceway

Plaintiff Claims:

Defendant Defenses:

Holding:

Year: 1999

Summary

In the majority of states, a loss of consortium claim is a derivative claim, and a release stops those claims as well as the original claim of the injured plaintiff. In Maine, a loss of consortium claim is a separate claim and not stopped when the plaintiff signs a release.

Facts

The husband was part of a pit crew for a race car. He signed a release to enter the track and work on the race car he crewed for. During the race, a specific set of seats in the bleachers were reserved for the pit crew. While sitting in the bleachers, a plank on a set of bleachers collapsed, injuring him.

The trial court granted summary judgment on the husband’s claim but allowed the wife’s loss of consortium claim to continue.

Maine’s loss of consortium claims originally only available to a husband when a wife was injured. When the first claims from wives appeared based on husband’s injuries the courts determined it was not their job to make that decision on whether the wife had a claim, that it was the legislature’s responsibility. “However, “under common law, a wife had no cause of action for her loss of consortium occasioned by her husband’s injuries.”

The Maine legislature passed a law giving both husband and wife, when married, loss of consortium claims. The statute stated the claims were available to be brought in the person’s own name or in their spouse’s name.

In most states, a loss of consortium claim is a derivative claim. Meaning the claim is brought with the injured spouse’s claim and is subject to the defenses to the injured spouses claim. Alternatively, the non-injures spouse can only win if the injured spouse wins.

Based on the language of the Maine Statute, the trial court determined the loss of consortium claim of the non-injured spouse could continue. The defendant appealed that decision and this is the Maine Supreme Court’s decision on that issue.

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

The court started by reviewing the release, and Maine release law. As in most states the court started its analysis with:

Courts have traditionally disfavored contractual exclusions of negligence liability and have exercised a heightened degree of judicial scrutiny when interpreting contractual language [that] allegedly exempts a party from liability for his own negligence.”

Under Maine’s law, this means that a release must “expressly spell out with the greatest particularity the intention of the parties contractually to extinguish negligence liability” That means the court must look at the plain language of the agreement and determine the intent of the parties as set forth in the agreement.

Although the release was mainly written to cover injuries received as a member of the pit crew and stock-car racing, the court found that since the seating area where the injury occurred could only be occupied by members of a pit crew, the release covered the injuries the plaintiff suffered when the plank broke. The court stated.

…had Brent not been participating in the race events, he would not have been on the section of bleachers that collapsed because that section was reserved for members of the pit crews and not open to the general public

The plaintiff’s injuries were determined to have risen directly from the racing event. Overall, the court determined the agreement was written to extinguish negligence liability.

Finding the release prevented the claims of the husband, the court then turned to the issue of the loss of consortium claim of the spouse.

Looking at the law of releases, a release only bar’s claims of the person who signed the release. If the wife’s claims are derivative, then her claims would be barred also when the husband signed the release.

States adopting the derivative approach generally conclude that a cause of action for loss of consortium is subject to the same defenses available in the injured spouse’s underlying tort action. States adopting the independent approach generally conclude that a consortium claim is not subject to such defenses.

However, under the statute, the court found that loss of consortium claims in Maine are separate, independent causes of action. The wife’s loss of consortium claim could continue.

So Now What?

In Maine, and the minority of states that follow this line of reasoning, to bar all claims for injuries, a defendant is going to have to get a signature on a release for everyone who might have a claim based upon the injury of the injured person.

That could mean the spouse would have to sign a release, minor children if they are allowed, heirs of the plaintiff if he dies, or anyone else that could bring a claim all would have to release any possible defendant.

Understand if you live in a state where loss of consortium claims is derivative and covered by a release or stand alone and not covered by your release.

What do you think? Leave a comment.

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Need a Handy Reference Guide to Understand your Insurance Policy?

This book should be on every outfitter and guide’s desk. It will answer your questions, help you sleep at night, help you answer your guests’ questions and allow you to run your business with less worry.

Table of Contents

Chapter 1    Outdoor Recreation Risk Management, Law, and Insurance: An Overview

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

Chapter 4    Risk, Accidents, and Litigation: Why People Sue

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

Chapter 12    Water Sports, Paddlesports, and water-based activities

Chapter 13    Rental Programs

Chapter 14    Insurance

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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.