Round v. Trinidad Resort & Club, LLC (Mich. App. 2022)

Posted: September 26, 2022 | Author: Recreation Law | Filed under: Assumption of the Risk, Michigan, Ski Area | Tags: fatality, Michigan, Michigan Ski Area Safety Act, SASA, ski area, ski run, Snow Making, Snow Making Equipment | Leave a comment

Round v. Trinidad Resort & Club, LLC (Mich. App. 2022)

CHERYLE A. ROUND, as Personal Representative of the ESTATE OF CHARLES R. ROUND, Plaintiff/Counterdefendant-Appellee,
v.
TRINIDAD RESORT & CLUB, LLC,Defendant/Counterplaintiff-Appellant.

No. 357849

Court of Appeals of Michigan

September 15, 2022

UNPUBLISHED

Antrim County Circuit Court LC No. 20-009218-NO

Before: Cavanagh, P.J., and Garrett and Yates, JJ.

Per Curiam

Defendant appeals by leave granted^[1] an order denying its motion for summary disposition which asserted that it was entitled to immunity under Michigan’s Ski Area Safety Act (SASA), MCL 408.321 et seq., because plaintiff could not demonstrate noncompliance with a statutory duty; the snow-making equipment that plaintiff’s decedent collided with was not located on the ski run so a warning sign was not required. We agree and reverse.

On December 21, 2019, plaintiff’s decedent, Charles R. Round, died after allegedly sustaining fatal injuries when he collided with snow-making equipment at Schuss Mountain, a ski area owned and operated by defendant. At the time, Round was participating in an event called the Tannenbaum Blitzen parade whereby volunteer skiers ski down an unlit hill-known as Kingdom Come-at night while carrying lighted torches, eventually getting to the bottom of the hill to light the ski resort’s Christmas tree. Round was leading the parade of skiers-as he had for several years-when he suddenly veered to his left and skied beyond the edge of the ski run. A ski lift was located on the edge of the ski run and, underneath the ski lift, were four permanent snow-making machines installed at various points up the hill. At about the half-way point of the ski hill, Round crossed into this area, collided with a snow-making machine, and sustained severe injuries that proved fatal.

On June 24, 2020, Round’s wife, Cheryle A. Round, filed this negligence action, alleging that defendant failed to comply with duties imposed under the SASA, including by:

a. Failing to ensure that the snow-making equipment was properly marked or plainly visible to skiers;

b. Failing to properly light the ski area during the event;

c. Failing to mark the snow-making machine with a visible sign or other warning device to warn approaching skiers;

d. Failing to construct or maintain physical barriers to prevent skiers from colliding with the snow-making machine; and

e. Failing to install protective padding around the snow-making machine to prevent serious injuries from collisions.

In response to plaintiff’s complaint, defendant asserted affirmative defenses, including that it was immune and plaintiff’s claim was barred by the SASA. Defendant also filed a counterclaim alleging breach of contract, indemnification, and other claims based on the release Round had signed.

On November 2, 2020, plaintiff filed a motion for partial summary disposition under MCR 2.116(C)(9) and (C)(10) as to defendant’s defense of immunity under the SASA. Plaintiff argued that her decedent collided with a snow-making machine that was neither properly marked nor plainly visible during the nighttime event; thus, the SASA did not presume-as set forth under MCL 408.342(2)-that her decedent assumed the risk of being injured in this situation. Defendant responded to plaintiff’s motion arguing, in relevant part, that plaintiff’s decedent assumed the risk of skiing in the event and signed a release to that effect. But, further, defendant owed no duty to mark or make plainly visible the snow-making machine at issue because it was 10 feet tall and was not located on the ski run.

On January 4, 2021, the trial court rendered its decision and order granting plaintiff’s motion for summary disposition holding, in relevant part, that “the injury causing hazard (e.g. the snow-making equipment) was neither properly marked nor plainly visible, [and thus], the Decedent cannot be said to have assumed the inherent risk of the hazard and recovery is not precluded by SASA.”

Defendant filed its application for leave to appeal the trial court’s order which was denied “for failure to persuade the Court of the need for immediate appellate review.” See Round v Trinidad Resort & Club, LLC, unpublished order of the Court of Appeals, entered May 18, 2021 (Docket No. 356123).

On April 27, 2021, defendant filed a motion for summary disposition under MCR 2.116(C)(7), (C)(8), and (C)(10), arguing that defendant strictly complied with its duties mandated by the SASA. And contrary to plaintiff’s claims, defendant had no duty under the SASA to light, mark, or pad the snow-making machine at issue because it is undisputed that (1) the ski run was not open to the public when plaintiff’s decedent was fatally injured, (2) the snow-making machine extended more than six feet above the snow surface; it was ten feet above the snow surface, and (3) the snow-making machine was located off of the ski run; it was nine feet away from the groomed edge of the ski run known as Kingdom Come. Moreover, plaintiff’s decedent breached his duties under the SASA to “maintain reasonable control of his or her speed and course at all times.” MCL 408.341(1). The video evidence showed that plaintiff’s decedent abruptly departed from the ski run without effort to correct his course before striking the snow-making machine. Defendant supported its motion with numerous exhibits, including deposition testimony transcripts, affidavits, an incident report, and photographs.

Plaintiff responded to defendant’s motion for summary disposition arguing, in relevant part, that the trial court already decided that plaintiff’s decedent did not assume the risk in this case, and thus, defendant was not entitled to immunity under the SASA. Further, plaintiff argued, (1) the ski run was open to the public when this incident occurred, (2) the snow-making machine was less than 6 feet above the snow surface when plaintiff’s expert, Stanley Gale, performed a site visit on March 6, 2021, and (3) the snow-making machine was located on the skiable portion of the trail, as Gale also determined, but, in any case, “it is the snow-making operations that must be located on the ski run-not the snow-making equipment itself.” Plaintiff supported her response with exhibits, including Gale’s investigative report.

Defendant replied to plaintiff’s response to its motion for summary disposition, arguing that (1) the ski run was not open to the public at the time of the accident, a fact supported by the deposition testimony of witnesses, the incident report, and even the deposition testimony of plaintiff’s purported expert, Stanley Gale; (2) the snow-making machine extended more than six feet above the snow surface at the time of the accident and Gale’s measurement using only his ski to gauge the distance more than one year after the accident was incompetent to refute defendant’s evidence; and (3) the snow-making machine was not located on the ski run, as even plaintiff’s decedent’s wife, son, and daughter admitted, and as testified to by other witnesses. Defendant supported its response with exhibits, including deposition testimony transcripts.

On June 1, 2021, the trial court heard oral argument on defendant’s motion and the parties argued consistently with their briefs. On June 27, 2021, the trial court entered an order denying defendant’s motion for summary disposition, holding that (1) whether the ski run was open to the public at the time of the accident is irrelevant but, in any case, was a question of fact for the jury considering that not just employees participated in the event; (2) whether the height of the snow-making machine at issue was six feet above the snow surface was a question of fact for the jury because plaintiff’s expert found it to be less than six feet and the machine had been manipulated; and (3) whether the snow-making equipment was located on the ski run was a question of fact for the jury because plaintiff’s expert stated that it was on a skiable portion of the trail. The court did not address defendant’s claim that plaintiff’s decedent breached his duties under MCL 408.341(1) of the SASA to “maintain reasonable control of his or her speed and course at all times.” Accordingly, the court concluded that genuine issues of material fact existed that must be decided by a jury, and thus, defendant’s motion was denied.

On July 16, 2021, defendant filed its application for leave to appeal arguing that preemptory reversal was required but, at minimum, leave to appeal should be granted. The snow-making equipment at issue in this case was not located on a ski run, and thus, defendant owed no duty to mark the snow-making equipment and cannot be held liable for plaintiff decedent’s accident. This Court granted leave to appeal. Round v Trinidad Resort & Club, LLC, unpublished order of the Court of Appeals, entered September 1, 2021 (Docket No. 357849). On November 8, 2021, while this appeal was pending, plaintiff filed a motion to affirm which this Court denied. Round v Trinidad Resort & Club, LLC, unpublished order of the Court of Appeals, entered November 24, 2021 (Docket No. 357849).

On appeal, defendant argues that it was entitled to summary disposition because the snow-making equipment at issue was not located on a ski run; thus, defendant had no duty to place a warning sign on that equipment and defendant cannot be held liable for plaintiff’s decedent’s accident. We agree.

A trial court’s decision on a motion for summary disposition is reviewed de novo. Hughes v Region VII Area Agency on Aging, 277 Mich.App. 268, 273; 744 N.W.2d 10 (2007). Defendant’s motion for summary disposition was brought under MCR 2.116(C)(7) (immunity), (C)(8) (failure to state a claim), and (C)(10) (no material factual issue), but was supported by numerous exhibits. Although the trial court did not indicate under which subrule it denied defendant’s motion, the court considered matters outside of the pleadings and so we review the motion as having been denied under MCR 2.116(C)(10). See id.; see also Patterson v Kleiman, 447 Mich. 429, 434; 526 N.W.2d 879 (1994).

Further, issues of statutory interpretation are reviewed de novo. Anderson v Pine Knob Ski Resort, Inc, 469 Mich. 20, 23; 664 N.W.2d 756 (2003). Our purpose in reviewing questions of statutory construction is to discern and give effect to the Legislature’s intent. Echelon Homes, LLC v Carter Lumber Co, 472 Mich. 192, 196; 694 N.W.2d 544 (2005). Our analysis begins by examining the plain language of the statute; if the language is unambiguous, no judicial construction is required or permitted and the statute must be enforced as written, giving its words their plain and ordinary meaning. Id. (citation omitted).

The SASA was enacted in 1962 “in an effort to provide some immunity for ski-area operators from personal-injury suits by injured skiers.” Anderson, 469 Mich. at 23. It delineates duties applicable to ski-area operators and to skiers. As to the duties imposed on skiers, and their acceptance of the associated risks of skiing, MCL 408.342 of the SASA provides, in part:

(2) Each person who participates in the sport of skiing accepts the dangers that inhere in that sport insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries which can result from variations in terrain; surface or subsurface snow or ice conditions; bare sports; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment.

This provision has been referred to as an “assumption-of-risk provision,” and means that a skier has assumed the risk of being injured by these and similar dangers as inherent in the sport of skiing. Rusnak v Walker, 273 Mich.App. 299, 301, 304; 729 N.W.2d 542 (2007). Thus, when a skier’s injury arises from one of these dangers considered to be inherent in the sport of skiing, the ski-area operator is immune from liability unless the ski-area operator violated a specific duty imposed by the SASA that resulted in injury. Id. at 304-305, 313-314; see also Kent v Alpine Valley Ski Area, Inc, 240 Mich.App. 731, 742-744; 613 N.W.2d 383 (2000).

Relevant to this case is the immunity related to snow-making equipment. Under MCL 408.342(2), ski-area operators are immune from liability for collisions with snow-making equipment, if that equipment is “properly marked or plainly visible.” Plaintiff filed a motion for partial summary disposition which addressed SASA’s immunity provision, MCL 408.342(2). Specifically, plaintiff argued that defendant was not entitled to immunity because plaintiff’s decedent did not assume the risk of skiing into the unmarked and not plainly visible snow-making equipment at issue in this case. The trial court agreed and granted plaintiff’s motion, holding that the snow-making equipment was neither properly marked nor plainly visible, and thus, plaintiff’s decedent cannot be charged with assuming this risk as inherent in the sport of skiing so liability was not precluded under the SASA.

Thereafter, defendant filed the motion for summary disposition at issue here, arguing that the snow-making equipment at issue in this case actually did not have to be “properly marked or plainly visible” because it was not on the ski run; rather, plaintiff’s decedent skied off of the ski run and into an area that was not meant for skiing where he collided with the snow-making equipment. In other words, defendant argued that it breached no duty imposed by the SASA with regard to the snow-making equipment, and thus, could not be held liable for plaintiff’s decedent’s accident.

The duty provision pertaining to snow-making equipment is codified in MCL 408.326a(b) and Mich. Admin Code, R 408.80(2). These provisions address the issue that was not decided by plaintiff’s motion for summary disposition, i.e., whether defendant, as the ski-area operator, had a duty to mark the snow-making equipment in this case. If SASA did not require marking this equipment with a warning sign or other device, defendant did not breach any statutory duty to plaintiff and summary disposition in favor of defendant would be appropriate.

MCL 408.326a provides in relevant part:

Each ski area operator shall, with respect to operation of a ski area, do all of the following:

* * *

(b) Mark with a visible sign or other warning device the location of any hydrant or similar fixture or equipment used in snow-making operations located on a ski run, as prescribed by rules promulgated [by the Ski Area Safety Board].

The corresponding administrative rule, Mich. Admin Code, R 408.80, prescribes the conditions under which snow-making equipment must be marked, stating:

(1) When a ski run, slope, or trail is open to the public, the ski area operator shall mark snowmaking devices as stated in this rule.

(2) A ski area operator shall mark the location of any hydrant, snow gun, or similar fixture or equipment which is used in snowmaking operations located on a ski run and which extends less than 6 feet above the snow surface with a caution sign that has contrasting colors. An orange marking disc, with a minimum diameter of 8 inches, may be used as a caution sign. One sign is adequate for all devices within an area 3 feet on either side of the sign and 10 feet in the downhill direction of the ski run from the sign.

The dispositive issue here is whether the snow-making equipment at issue was “located on a ski run,” as set forth in MCL 408.326a(b) and R 408.80(2).^[2] We conclude that it was not. Accordingly, defendant was not in violation of the SASA, and thus, could not be held liable for plaintiff’s decedent’s accident.

The SASA does not define the phrase “ski run.” When a statute does not define a term, it is construed in accordance with its ordinary and generally accepted meaning. Popma v Auto Club Ins Ass’n, 446 Mich. 460, 470; 521 N.W.2d 831 (1994). At minimum, the plain meaning of the phrase “ski run” for purposes of the SASA must include a path or route expected to be used for skiing down a hill. Indeed, ski runs are named, designed, constructed, groomed, and designated as the route skiers are to use for skiing down a particular hill. As this Court similarly noted in Rhoda v O’Dovero, Inc, unpublished per curiam opinion of the Court of Appeals, issued March 24, 2016 (Docket No. 321363), unpub op at 8: “Although the SASA does not define the terms ‘run,’ ‘slope’ or ‘trail,’ the plain, ordinary and common meanings of these terms encompass the paths a skier or snowboarder takes to get down a hill, including those paths designed and constructed by the ski operator for precisely that purpose.”^[3]

In this case, no genuine issue of material fact exists-the snow-making equipment at issue was not located on the path or route expected to be used for skiing down Kingdom Come. The evidence presented by defendant in support of its argument included deposition testimony from witnesses. Plaintiff admitted during her deposition that she saw a video taken the night of the accident and she saw that her decedent actually veered the wrong way before striking the equipment-that had been in the same place for years-which was located off of the ski trail. Rick Van Tongeren, the snow sports school manager at the Shanty Creek Resort, testified that he watched a video taken the night of the incident and plaintiff’s decedent was skiing out of control in the wrong direction, i.e., not on the expected path, and was skiing very fast before the accident.

Mike Moreen, the director of the ski patrol at the Shanty Creek Resort, testified that he was skiing in the parade and was at the back of the lineup when he received a radio call from Fred Hunt that ski patrol was needed “skier’s left off of ski run about halfway down the hill.” When Moreen arrived to help Round, he saw that Round was “in a difficult location down off of the skiing surface, underneath the snow gun, underneath the structure, the stanchion of the snow gun . . . .” Moreen noted that they were “in deep snow” and “were off of the skiing surface quite a ways, several feet.” Round was down an embankment; about 10 to 15 feet away. And after they got Round on the toboggan to remove him from the accident site, “it probably took four or five repetitions to get him from the snow gun up to the skiing surface.”

Mark Durance, a member of the ski patrol at the Shanty Creek Resort, testified that he was skiing in the parade and was the second person from the last in the lineup. When the radio call came in, Durance followed Moreen to the accident site. Round was located about “ten feet or so off the ski run so it’s not a run.” Durance could not really determine Round’s condition “because he was so far off the existing run” that he could barely make observations. Ted Ewald, a ski instructor at Shanty Creek Resort, testified that he was skiing in the parade about 10 people from the front and he saw that “somebody went into the woods . . . .” But he did not see precisely what happened, the actual event; “I saw something in the woods when I skied by there.”

The evidence presented by defendant in support of its motion for summary disposition also included an incident report. The incident report included witness statements. One witness, Michael Casey, who was the third person from the front skiing in the parade, reported that he saw that Round-who was the leader of the parade-at one point seemed to be a lot further away than he should have been, indicating increased speed. He then saw Round “go off the ski hill into the woods.”

The incident report included a drawing of the snow-making machine at issue and depicted measurements taken the day after the accident. The drawing shows that the snow-making machine was located nine feet from the groomed trail; the machine sat between the groomed trail and trees, i.e., a “woods,” that was located 22 feet from the groomed trail; and the machine stood ten feet tall above the snow surface. The drafter of the drawing, Tom Murton, averred in an affidavit that he drew the diagram after the accident and the precise measurements were accurate. Murton also testified in a deposition about his investigation of the accident-including the measurements taken-that occurred the day after the accident. He testified that the snow-making equipment at issue is not part of Kingdom Come’s groomed ski surface or the ski run itself and had been in the same location permanently since at least the mid-1990s when he began working there. Photographs were also submitted in support of defendant’s motion for summary disposition and they show the scene of the accident, including the snow-making machine at issue, and it is clear that the machine was very close to the wooded area and not on the ski run known as Kingdom Come.

In opposition to defendant’s claim that it had no duty to mark the snow-making equipment at issue in this case because it was “not located on a ski run,” plaintiff argued that the machine was located on a skiable portion of the trail. Plaintiff supported that argument with a report from her purported expert, Gale, which stated that the snow-making machine was located on the skiable portion of the trail. But it is unclear as to what Gale considered a “skiable portion of the trail.” At issue here was the path or route expected to be used for skiing down Kingdom Come. Any area where there is snow is likely to be considered by some people as “skiable,” or able to be skied on-even areas that are not expected to be skied on and areas not designed or designated for skiing. We cannot agree with the trial court that Gale’s statement, alone-and which is unsupported by precise measurements or other evidence-is sufficient to establish a genuine issue of disputed fact that warrants a trial. The party filing a motion for summary disposition has the initial burden of supporting its position with documentary evidence and the party opposing that motion must then establish by evidentiary materials that a genuine issue of disputed fact exists. Quinto v Cross & Peters Co, 451 Mich. 358, 362; 547 N.W.2d 314 (1996). Defendant provided a plethora of evidence establishing that plaintiff’s decedent did not encounter and collide with the snow-making equipment on the path or route expected to be used for skiing down Kingdom Come. Gale’s claim that the snow-making equipment was located on a “skiable portion of the trail” is not sufficient to establish that it was “located on a ski run,” which would give rise to a duty for defendant to mark that equipment with a caution sign or other warning device.

And most obviously in this case, if the snow-making machine at issue was, in fact, located on the path or route expected to be used for skiing down Kingdom Come-within the contemplation of R 408.80(2), other skiers in the Tannenbaum Blitzen parade would likely have collided with-or at least seen and avoided-that equipment. There is no such evidence. The SASA imposes certain and specific duties on ski-area operators, one of which is to mark the location of snow-making equipment “located on a ski run and which extends less than 6 feet above the snow surface . . . .” Mich. Admin Code, R 408.80(2); see also MCL 408.326a(b). Clearly, snow-making equipment that is located on a ski run and which extends more than 6 feet above the snow surface need not be marked. This balancing of responsibilities recognizes that skiers are charged with exercising care for their own safety by avoiding obvious hazards they might encounter skiing down a hill, and ski-area operators are charged with providing warnings when a hazard that a skier might encounter skiing down a hill is less likely to be obvious. A ski-area operator is not charged by law with the impossible task of making its ski runs or every allegedly “skiable” area at its facility “accident proof.” Ski-area operators are not absolute insurers of safety, particularly with regard to those skiers who intentionally or inadvertently ski off the path or route expected to be used for skiing down a particular hill. This conclusion is consistent with the SASA’s purpose of “promoting safety, reducing litigation and stabilizing the economic conditions in the ski resort industry,” Grieb v Alpine Valley Ski Area, Inc, 155 Mich.App. 484, 487; 400 N.W.2d 653 (1986), while at the same time ensures that ski-area operators stay vigilant and responsible for providing reasonably safe skiing conditions in the areas their patrons are invited, and expected, to ski.

In this case, the trial court erred in denying defendant’s motion for summary disposition because defendant had no duty under the SASA to mark the location of the snow-making equipment that plaintiff’s decedent collided with, allegedly causing his fatal injuries. There is no genuine issue of fact that the snow-making equipment was not located on the ski run, i.e., the path or route expected to be used for skiing down Kingdom Come. Therefore, we reverse the trial court’s decision. This matter is remanded to the trial court for entry of an order granting defendant’s motion for summary disposition and dismissing this case.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

———

Notes:

^[1]
Round v Trinidad Resort & Club, LLC, unpublished order of the Court of Appeals, entered September 1, 2021 (Docket No. 357849).

^[2] To the extent plaintiff argues that it was the snow-making operations that must be on the ski run and not the snow-making equipment itself, we reject that argument as inconsistent with the plain language of MCL 408.326a(b) and R 408.80(2).

^[3] Although not binding precedent, a court may consider unpublished opinions for their instructive or persuasive value. Cox v Hartman, 322 Mich.App. 292, 307; 911 N.W.2d 219 (2017).

———

Sometimes you can go too far and in this case Mountain Creek Ski Resort went stupid far.

Posted: August 1, 2022 | Author: Recreation Law | Filed under: New Jersey, Release (pre-injury contract not to sue), Ski Area, Skier v. Skier | Tags: Indemnification, Indemnification Clause, Mountain Creek Ski Resort, Release, Rental Agreement, Ski Equipment Rental Agreement, skier collision, Skier v. Skier Collision | Leave a comment

In attempting to recover their defense costs and attorney’s fees based on a rental agreement, they court found the agreement was a contact of adhesion.

Vladichak v. Mountain Creek Ski Resort, Inc. (N.J. Super. App. Div. 2022)

State: New Jersey

Plaintiff: Andrea Vladichak

Defendant: Mountain Creek Ski Resort, Inc., and Michael Lavin

Defendant Lavin Claims: indemnity clause is ambiguous

Defendant Defenses: Indemnity Clause is valid

Holding: For the defendant Lavin & against Mountain Creek Ski Resort

Year: 2022

Summary

The ski area one the lawsuit when brought into a skier v. skier collision lawsuit. Afterwards, they attempted to sue the plaintiff in the skier v. skier case for their costs in defending based on the “indemnification” clause in the rental agreement he signed when the plaintiff rented ski equipment.

The court tore through the release holding for the original plaintiff. The court’s interpretation will not affect this case; however, the interpretation will have a negative bearing on any future case.

Facts

On December 21, 2017, plaintiff sustained personal injuries while skiing at a ski area owned and operated by Mountain Creek in Vernon Township, New Jersey. Plaintiff was struck from behind by Lavin, another skier. Plaintiff filed a complaint alleging Mountain Creek and Lavin were negligent. Plaintiff’s complaint alleged Mountain Creek was independently negligent for failing to provide appropriate warnings to skiers, failing to appropriately designate the difficulty of ski trails, failing to provide skiers with appropriate information about trail conditions, failing to timely remove obvious manmade hazards, and/or otherwise failing to establish adequate procedures to provide a safe skiing environment. The complaint alleged Lavin was negligent for breaching his duty to others to ski in a reasonably safe manner by skiing in a reckless manner and/or intentionally colliding into plaintiff and causing her injuries.

Prior to the incident, Lavin signed an equipment rental agreement (Rental Agreement) and lift ticket agreement (Release Agreement) in which he agreed to defend and indemnify Mountain Creek from any claims related to his own conduct and use of the property’s equipment facilities. On August 7, 2019, Mountain Creek filed an answer and cross-claims seeking defense and indemnification from Lavin based on the executed Rental and Release Agreements. Mountain Creek previously tendered the defense to Lavin on July 16, 2019.

The co-defendant Lavin rented skis from the ski area Mountain Creek. The rental agreement included a release and an indemnification clause. Like 99% of the indemnification clauses in releases it was written badly, but Mountain Creek tried to sue Lavin for their costs in defending the lawsuit by the original plaintiff and lost!

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

Indemnification agreements are not understood by 95% of the outdoor industry. 99% of them when attempted to be used by the courts have been thrown out, but you still find the language in releases.

Get rid of that language, it does not work and only makes judges mad!

In this case, the indemnification language was in the rental agreement signed by the co-defendant when he rented skis. The language was the general “I don’t know what this means, but I’ll stick it in a release” language.

After the ski area had won its lawsuit, and the co-defendant had settled with the plaintiff, the ski area sued the co-defendant to recover their attorney fees and costs they spent in defending the lawsuit.

The court, in this case, started by looking at New Jersey state law covering indemnification agreements. Because they are such of a particular type of contracts, each state has evolved its own set of laws on how an indemnification agreement is going to be interpreted. New Jersey:

… indemnity provisions differ from provisions in a typical contract in one important aspect. If the meaning of an indemnity provision is ambiguous, the provision is ‘strictly construed against the indemnitee.

Meaning the courts interpreted the agreement strictly. “We have characterized this approach as a “bright line” rule requiring “explicit language” when “indemnification includes the negligence of the indemnitee.”

The court then looked at the indemnification language in the ski equipment rental agreement and said the language fails.

We agree with the motion judge that the indemnity provisions in the agreements are ambiguous as to claims of Mountain Creek’s independent negligence. Although the provisions reference Mountain Creek’s negligence in bold and capitalized letters, the language “arising out of or resulting from my conduct . . . whether or not MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part” is insufficient to meet the Azurak standard. One could reasonably interpret the provisions to require indemnification and defense of Mountain Creek for any claims of negligence against it caused by Lavin’s conduct even when Mountain Creek is partially at fault or to require Lavin to indemnify and defend Mountain Creek for separate claims of its own negligence.

The court then proceeded to destroy the entire idea that an indemnity agreement in this case would ever work.

Simply stated the court found “The provisions at issue do not meet the bright line rule requiring “unequivocal terms” that the duty to indemnify extends to the indemnitee’s own negligence.”

The ski area then argued the New Jersey Skier Safety Act supported the indemnification. The court struck this down with one sentence.

This indemnification scheme is consistent with the Ski Act’s purpose to promote “the allocation of the risks and costs of skiing” as “an important matter of public policy.” N.J.S.A. 5:13-1(a). Moreover, in Stelluti, the Court considered that “some activities involve a risk of injury and thus require risk sharing between the participants and operators”

The court went into the entire issue of the release that contained the indemnification provision and found the release was a contract of adhesion.

As a threshold issue, we determine that the Release and Rental Agreements were contracts of adhesion. If a contract is characterized as a contract of adhesion, “nonenforcement of its terms may be justified on other than such traditional grounds as fraud, duress, mistake, or illegality.” An adhesion contract is one that “is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” “Although a contract of adhesion is not per se unenforceable, a [judge] may decline to enforce it if it is found to be unconscionable.”

The court reviewed under New Jersey law what a contract of adhesion was and how it was determined to be one.

When determining whether an adhesion contract is unconscionable, we evaluate four factors that “focus on procedural and substantive aspects of the contract to determine whether the contract is so oppressive, or inconsistent with the vindication of public policy, that it would be unconscionable to permit its enforcement.” Id. at 247 (internal quotation marks omitted) Those factors include “the subject matter of the contract, the parties’ relative bargaining positions, the degree of economic compulsion motivating the ‘adhering’ party, and the public interests affected by the contract.” The first three factors speak to procedural unconscionability, and the last factor speaks to substantive unconscionability. We consider these factors using a “sliding scale analysis.”

The court then applied the test for an adhesion contract to the rental agreement.

applying the four-factor test, the Release and Rental Agreements are not procedurally unconscionable. At the time of the incident, Lavin was twenty years old and a layperson without specialized knowledge of the law. He maintains he did not read the agreements before signing them despite having the opportunity to do so. Lavin also stated that he did not have the opportunity to negotiate the terms of the agreement. However, Lavin was engaging in a recreational activity like the adhering party in Stelluti, and he was under no economic duress or obligation to consent to the agreements. Lavin could have chosen to take his business to another ski resort, rented skis from a different facility, or could have simply read the agreements or contemplated them before signing.

The court found the rental agreement was a contract of adhesion. However, in this situation it was not void on its face.

However, that creates a ruling that all other courts in New Jersey must rely upon in reviewing the rental agreement of Mountain Creek Ski Resort. By pushing the issue, they created a lower step for the plaintiff’s bar to overcome in the future.

So Now What?

If you have indemnification language in your release, and it was not written by me, have an attorney remove it. It is a waste of space on the paper and only can be used to make judges mad.

Indemnification agreements must be written in a special way to cover very specific circumstances that must be outlined in the agreement.

If you want to understand an indemnification agreement, read your automobile insurance policy. (Think about shrinking that to fit into your release…..)

That does not mean indemnification agreements in releases are all bad. They can be used, IF WRITTEN PROPERLY, to indemnify the outfitter for their actions if backed up by other documents or contracts. Meaning if you live in a state that charges for rescue, you can require your guests to indemnify you for any rescue costs you may incur on their behalf.

What do you think? Leave a comment.

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

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Vladichak v. Mountain Creek Ski Resort, Inc. (N.J. Super. App. Div. 2022)

Posted: August 1, 2022 | Author: Recreation Law | Filed under: New Jersey, Release (pre-injury contract not to sue), Ski Area, Skier v. Skier | Tags: equipment rental, Indemnification, Indemnification Clause, Mountain Creek Ski Resort, New Jersey, Release, Rental, Ski Rental, Skier v. Skier Collision, Waiver | Leave a comment

ANDREA VLADICHAK, Plaintiff-Respondent,
v.
MOUNTAIN CREEK SKI RESORT, INC., Defendant-Appellant,

and MICHAEL LAVIN, Defendant-Respondent.

No. A-1367-20

Superior Court of New Jersey, Appellate Division

April 13, 2022

This opinion shall not “constitute precedent or be binding upon any court .” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Argued April 4, 2022

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0590-18.

Samuel J. McNulty argued the cause for appellant (Hueston McNulty, PC, attorneys; Samuel J. McNulty, of counsel and on the briefs; Edward J. Turro, on the briefs).

Matthew E. Kennedy argued the cause for respondent Michael Lavin (Leary Bride Mergner & Bongiovanni, PA, attorneys; Matthew E. Kennedy, of counsel and on the brief).

Before Judges Fasciale and Sumners.

PER CURIAM

Defendant Snow Creek, LLC d/b/a Mountain Creek Resort, Inc. (Mountain Creek) appeals from a November 9, 2020 order denying its motion for summary judgment and granting summary judgment to defendant Michael Lavin (Lavin) dismissing Mountain Creek’s cross-claims for defense costs and contractual indemnification. Judge David J. Weaver (motion judge) concluded in a thorough opinion that the contractual language was ambiguous and therefore Mountain Creek was not entitled to indemnification from Lavin or defense costs incurred to defend plaintiff’s allegations that Mountain Creek itself was negligent. We affirm.

Plaintiff’s counsel served a report from plaintiff’s liability expert, who concluded that Lavin violated the New Jersey Ski Statute, N.J.S.A. 5:13-1 to -12, and the Skier’s Responsibility Code by failing to control his speed and course and by failing to yield to the skiers ahead of him. The expert opined that Lavin’s reckless conduct caused the accident. On March 27, 2020, Judge Stephan C. Hansbury entered an order granting Mountain Creek’s motion for summary judgment dismissing plaintiff’s claims that Mountain Creek was negligent. Lavin and plaintiff settled and filed a stipulation of dismissal with prejudice dated May 29, 2020.

After plaintiff’s settlement with Lavin, Mountain Creek filed its motion seeking reimbursement from Lavin for defending plaintiff’s allegations and indemnification from Lavin.^[1] Lavin filed a cross-motion for summary judgment on September 1. That led to the order under review.

The judge concluded that, as a matter of law, the indemnification provisions were ambiguous and thus unenforceable to compel indemnification in favor of Mountain Creek for claims of its own negligence. The motion judge denied Lavin’s cross-motion for summary judgment in part and granted it in part. The motion judge requested the parties submit the detail and extent of defense costs incurred by Mountain Creek for costs incurred for which liability was only vicarious.

Mountain Creek’s attorneys stipulated that there were no fees or costs incurred from defending vicarious liability claims. On December 14, 2020, Judge Robert J. Brennan entered a consent order resolving all remaining issues as to all parties.

Mountain Creek raises the following arguments on appeal:

POINT I

STANDARD OF REVIEW-DE NOVO[.]

POINT II

THE [MOTION JUDGE] CORRECTLY RULED THAT THE TWO AGREEMENTS WERE NOT CONTRACTS OF ADHESION NOR WERE THEY CONTRARY TO PUBLIC POLICY.

POINT III

THE [MOTION JUDGE] ERRED IN FINDING THAT THE LANGUAGE IN THE AGREEMENTS SIGNED BY . . . LAVIN IS AMBIGUOUS AND INSUFFICIENT TO COMPEL . . . LAVIN TO INDEMNIFY AND DEFEND MOUNTAIN CREEK FOR CLAIMS OF ITS OWN NEGLIGENCE.

A. Special Status Of A Ski Operator.

B. The Two Agreements Were Unambiguous And Should Be Enforced.^[2]

Mountain Creek raises the following points in reply, which we have renumbered:

POINT IV

. . . LAVIN’S REQUEST THAT THE APPELLATE DIVISION REVERSE THE [MOTION JUDGE]’S JUDGMENT THAT THE CONTRACTS WERE NOT UNCONSCIONABLE SHOULD BE REJECTED AS NO CROSS-APPEAL WAS FILED.

POINT V

THE AGREEMENTS IN QUESTION ARE ENFORCEABLE AND NOT UNCONSCIONABLE CONTRACTS OF ADHESION.

POINT VI

THE INDEMNIFICATION LANGUAGE IS SUFFICIENT AND EXPRESSLY PROVIDES FOR INDEMNIFICATION FOR CLAIMS ASSERTING MOUNTAIN CREEK’S OWN NEGLIGENCE.

We review the motion judge’s grant of a motion for summary judgment de novo. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). We apply the same standard as the motion judge and consider “whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.” Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Mountain Creek contends the motion judge erred in ruling the indemnification provisions in the Release and Rental Agreements were ambiguous and unenforceable to compel Lavin to indemnify Mountain Creek for Mountain Creek’s own negligence. Mountain Creek also contends that it should be permitted to obtain indemnification from Lavin based on its special status as a ski area operator under the Ski Statute.

The judge’s role “in construing a contractual indemnity provision is the same as in construing any other part of a contract-it is to determine the intent of the parties.” Kieffer v. Best Buy, 205 N.J. 213, 223 (2011). Generally, courts give contractual provisions “their plain and ordinary meaning.” Ibid. (quoting M.J. Paquet, Inc. v. N.J. Dep’t of Transp., 171 N.J. 378, 396 (2002)). “However, indemnity provisions differ from provisions in a typical contract in one important aspect. If the meaning of an indemnity provision is ambiguous, the provision is ‘strictly construed against the indemnitee.'” Ibid. (quoting Mantilla v. NC Mall Assocs., 167 N.J. 262, 272 (2001)).

We have characterized this approach as a “bright line” rule requiring “explicit language” when “indemnification includes the negligence of the indemnitee.” Azurak v. Corp. Prop. Invs., 347 N.J.Super. 516, 523 (App. Div. 2002). Azurak involved a contract between a janitorial company (PBS) and a shopping mall owner (the Mall) that contained the following provision:

Contractor [PBS] shall indemnify, defend and hold harmless each Indemnitee [the Mall] from and against any claim (including any claim brought by employees of Contractor), liability, damage or expense (including attorneys’ fees) that such Indemnitee may incur relating to, arising out of or existing by reason of (i) Contractor’s performance of this Agreement or the conditions created thereby (including the use, misuse or failure of any equipment used by Contractor or its subcontractors, servants or employees) or (ii) Contractor’s breach of this Agreement or the inadequate or improper performance of this Agreement by Contractor or its subcontractors, servants or employees.

[Azurak v. Corp. Prop. Invs., 175 N.J. 110, 111 (2003) (alterations in original).]

The plaintiff sued the Mall and PBS for injuries she sustained when she slipped on the Mall’s floor. Ibid. The trial judge granted the Mall’s summary judgment motion on the issue of indemnification based on the contract provision. Ibid. At trial, the jury determined “that plaintiff was 30% negligent; the Mall, 30%; and PBS, 40%.” Ibid. This court disagreed with the trial judge, finding that the indemnification provision did not encompass the Mall’s negligence because the provision’s language was neither explicit nor unequivocal as to claims of the Mall’s own negligence. Id. at 111-12. Our Court affirmed and held that “in order to allay even the slightest doubt on the issue of what is required to bring a negligent indemnitee within an indemnification agreement, we reiterate that the agreement must specifically reference the negligence or fault of the indemnitee.” Id. at 112-13.

Mountain Creek’s Release Agreement contained a provision that states:

INDEMNIFICATION. To the fullest extent permitted by law, I agree to DEFEND, INDEMNIFY AND HOLD HARMLESS Mountain Creek from any and all claims, suits, costs and expenses including attorneys’ fees asserted against Mountain Creek by me or third parties arising or allegedly arising out of or resulting from my conduct while utilizing Mountain Creek’s facilities WHETHER OR NOT MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part.

One provision of the Rental Agreement states:

To the fullest extent permitted by law, I also agree to DEFEND, INDEMNIFY AND HOLD HARMLESS Mountain Creek from any and all claims, suits, costs and expenses including attorneys’ fees for personal injury, death or property damage against it by me or third parties arising or allegedly arising out of or resulting from my conduct while utilizing Mountain Creek’s facilities or the use of this equipment whether or not MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part.

We agree with the motion judge that the indemnity provisions in the agreements are ambiguous as to claims of Mountain Creek’s independent negligence. Although the provisions reference Mountain Creek’s negligence in bold and capitalized letters, the language “arising out of or resulting from my conduct . . . whether or not MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part” is insufficient to meet the Azurak standard. One could reasonably interpret the provisions to require indemnification and defense of Mountain Creek for any claims of negligence against it caused by Lavin’s conduct even when Mountain Creek is partially at fault or to require Lavin to indemnify and defend Mountain Creek for separate claims of its own negligence. See Nester v. O’Donnell, 301 N.J.Super. 198, 210 (App. Div. 1997) (noting that a contract is ambiguous if it is “susceptible to at least two reasonable alternative interpretations” (quoting Kaufman v. Provident Life & Cas. Ins. Co., 828 F.Supp. 275, 283 (D.N.J. 1992), aff’d, 993 F.2d 877 (3d Cir. 1993))).

An indemnitor may expect to indemnify and defend an indemnitee for claims caused by its negligent conduct when the indemnitee may also be at fault but may not expect to be solely responsible to indemnify and defend the indemnitee when the indemnitee has committed separate acts of negligence. That is the case here, as plaintiff’s complaint alleged Mountain Creek was separately negligent for failing to provide adequate instructions to skiers and a safe ski environment. A better-and likely enforceable-provision would explicitly state that the indemnitor indemnifies Mountain Creek for claims arising out of indemnitor’s conduct and for claims of Mountain Creek’s independent negligence.

The provisions at issue do not meet the bright line rule requiring “unequivocal terms” that the duty to indemnify extends to the indemnitee’s own negligence. Thus, the provisions are ambiguous and must be strictly construed against Mountain Creek. The same reasoning and standards apply with equal force to Mountain Creek’s defense costs. The provisions’ ambiguity precludes their enforcement against Lavin for recovery of the costs incurred by Mountain Creek for defending its own negligence claims.

We also conclude Mountain Creek’s argument that the Ski Statute supports enforcement of the indemnification provisions is without merit. While the Ski Act may emphasize the inherent risk that skiers assume when skiing, the Act provides separate duties to the ski operator, which include establishing and posting a system for identifying slopes and their difficulty, ensuring the availability of information to skiers, and removing hazards as soon as practicable. N.J.S.A. 5:13-3(a). The allegations in plaintiff’s complaint, which include failing to provide adequate signage and failing to instruct skiers properly, do not fall under the risks that “are essentially impractical or impossible for the ski area operator to eliminate” defined in the statute. N.J.S.A. 5:13-1(b). In fact, plaintiff’s complaint addressed the responsibilities of a ski area operator as prescribed by the Act. Requiring indemnification in favor of a ski resort for claims of its own independent negligence does not further the Ski Act’s purpose of allocating the inherent risk of skiing between the skier and ski resort. Moreover, the public policy of the Ski Act has no bearing on our interpretation of the indemnity provisions and our conclusion that the provisions are ambiguous.

II.

Lavin argues, on an alternative basis, that the Rental and Release Agreements are unconscionable contracts of adhesion. Lavin was not required to file a Notice of Cross-Appeal to preserve this argument for appeal because “appeals are taken from judgments, not opinions, and, without having filed a cross-appeal, a respondent can argue any point on the appeal to sustain the trial [judge’s] judgment.” Chimes v. Oritani Motor Hotel, Inc., 195 N.J.Super. 435, 443 (App. Div. 1984). Even if Lavin were required to file a cross-appeal, we will address the merits of his argument.

As a threshold issue, we determine that the Release and Rental Agreements were contracts of adhesion. If a contract is characterized as a contract of adhesion, “nonenforcement of its terms may be justified on other than such traditional grounds as fraud, duress, mistake, or illegality.” Rudbart v. N. Jersey Dist. Water Supply Comm’n, 127 N.J. 344, 353 (1992). An adhesion contract is one that “is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” Vitale v. Schering-Plough Corp., 231 N.J. 234, 246 (2017) (quoting Rudbart, 127 N.J. at 355). “Although a contract of adhesion is not per se unenforceable, a [judge] may decline to enforce it if it is found to be unconscionable.” Ibid.

We agree with the motion judge that “the Agreements at issue evidence characteristics of contracts of adhesion.” The Release and Rental Agreements were standardized form contracts that fit our Court’s definition as “take-it-or-leave-it” adhesion contracts. See ibid. All potential skiers at Mountain Creek’s resort are obligated to sign the Release Agreement, and there is little to no negotiating done before the agreements’ execution. However, an agreement found to be an adhesion contract may nevertheless be enforced if it is not unconscionable. See ibid.

When determining whether an adhesion contract is unconscionable, we evaluate four factors that “focus on procedural and substantive aspects of the contract to determine whether the contract is so oppressive, or inconsistent with the vindication of public policy, that it would be unconscionable to permit its enforcement.” Id. at 247 (internal quotation marks omitted) (quoting Rodriguez v. Raymours Furniture Co., Inc., 225 N.J. 343, 367 (2016)). Those factors include “the subject matter of the contract, the parties’ relative bargaining positions, the degree of economic compulsion motivating the ‘adhering’ party, and the public interests affected by the contract.” Rudbart, 127 N.J. at 356. The first three factors speak to procedural unconscionability, and the last factor speaks to substantive unconscionability. See Rodriguez, 225 N.J. at 367. We consider these factors using a “sliding scale analysis.” Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 301 (2010).

The motion judge correctly relied on Stelluti in determining the agreements are not procedurally unconscionable. In Stelluti, the plaintiff was injured in a spinning class at a private fitness center and argued that the pre-injury waiver of liability she signed was unenforceable on unconscionability grounds. Id. at 291, 300. The Court found that although the pre-printed form was an adhesion contract, it was not procedurally unconscionable. Id. at 301-02. The Court reasoned the plaintiff was not in a position of unequal bargaining power, despite being a layperson and not being fully informed of the legal effect of an adhesion contract, when she had the ability to take “her business to another fitness club,” to find a form of exercise different than joining a private gym, or to contemplate the agreement for some time before joining the gym and using its equipment. Id. at 302.

Under the Court’s reasoning in Stelluti and applying the four-factor test, the Release and Rental Agreements are not procedurally unconscionable. At the time of the incident, Lavin was twenty years old and a layperson without specialized knowledge of the law. He maintains he did not read the agreements before signing them despite having the opportunity to do so. Lavin also stated that he did not have the opportunity to negotiate the terms of the agreement. However, Lavin was engaging in a recreational activity like the adhering party in Stelluti, and he was under no economic duress or obligation to consent to the agreements. Lavin could have chosen to take his business to another ski resort, rented skis from a different facility, or could have simply read the agreements or contemplated them before signing.

As for the remaining factor-the impact on public interest-Mountain Creek points to the “strong public policy of protecting ski operators and allocating the risks and costs of inherently dangerous recreational activities” under the Ski Statute. The Act’s purpose is to make explicit a policy of this State which clearly defines the responsibility of ski area operators and skiers, recognizing that the sport of skiing and other ski area activities involve risks which must be borne by those who engage in such activities and which are essentially impractical or impossible for the ski area operator to eliminate. It is, therefore, the purpose of this act to state those risks which the skier voluntarily assumes for which there can be no recovery.

[N.J.S.A. 5:13-1(b).]

We agree that the Agreements are not substantively unconscionable. The agreements do not contain terms that are so “harsh” or “one-sided” to render them unconscionable and unenforceable. See Muhammad v. Cnty. Bank of
Rehoboth Beach, Del., 189 N.J. 1, 15 (2006). Construing the indemnity provision against Mountain Creek due to its ambiguity, the provision requires that Lavin indemnify and defend Mountain Creek for claims arising out of Lavin’s conduct while using Mountain Creek’s equipment and facilities, even when Mountain Creek is partially at fault. This indemnification scheme is consistent with the Ski Act’s purpose to promote “the allocation of the risks and costs of skiing” as “an important matter of public policy.” N.J.S.A. 5:13-1(a). Moreover, in Stelluti, the Court considered that “some activities involve a risk of injury and thus require risk sharing between the participants and operators” and that our Legislature has enacted statutes to address the allocation of risk in those circumstances. 203 N.J. at 308. It would not be against public policy to require indemnification of Mountain Creek by Lavin for claims of vicarious liability due to Lavin’s reckless conduct; however, Mountain Creek stipulated that it did not incur any costs in defending claims of vicarious liability.

Affirmed.

———

Notes:

^[1] Mountain Creek did not contribute towards plaintiff’s settlement with Lavin.

^[2] To comport with our style conventions, we altered the capitalization of Mountain Creek’s Points A and B but omitted the alterations for readability.

———

Just because your son died, does not mean you get money

Posted: January 19, 2022 | Author: Recreation Law | Filed under: Oregon, Skiing / Snow Boarding | Tags: Cause, fatality, Injury, Mt. Bachelor Ski and Summer Resort, Negligence, skiing, snowboarding, Tree Well | Leave a comment

https://rec-law.us/3qXgQ5b

State: Oregon

Most non-attorneys think this way. I got hurt; therefore, someone owes me money. I even got an email from someone who admitted they were not paying attention and walked off the curb and were injured. They wanted to sue. They did not know who to sue, but simply because they were injured, they thought they were owed money.

Or in this example, it may be pain. I hurt because I lost a loved one, therefore, you owe me money.

In this case, there are two different lawsuits going against Mt. Bachelor for two tree well deaths that occurred on the same day four years ago. The father of one of the deceased made this statement in the article.

“If you have four accidents on the highway, they will fix that turn; they will do something,” Braun said Friday. “They will close it, they will fix it.”

When someone has a duty to keep the highways safe, then that occurs. However, most states do not owe you a duty to keep highways safe. The poor father’s knowledge of how the law works is going to confuse him even more when he loses his lawsuit.

And I suspect that his deceased son was not skiing fresh powder because it was easy, because there was no risk. Skiing is risky and most of us ski for that risk.

What’s worse, is the writer is supporting this misinformation by writing about it. If it is in the news, it must be true.

It is a perfect combination to write a bad article to make someone feel worse. The only people who are going to “win” in this mess is the writer, who will move on and the attorneys.

It also appears that the plaintiff’s attorneys are not skiers or boarders. Allegedly, the complaint has an allegation that Mt. Bachelor is negligent because the ski area did not “mark the tree wells or monitor them.”

If Mt. Bachelor or anyone knew where the tree wells were, or even if there was a way to find them, I suspect they would. But if you have never skied fresh power after a dump, you have no idea what you are complaining about.

Why Is This Interesting?

It’s sad more than anything.

@MtBachelor #Lawsuit #SkiFatality @RecreationLaw #SkiLaw #SkiAreaLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

What do you think? Leave a comment below.

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

Search called off at Ski Area for missing Inbounds Snowboarder found next day dead

Posted: January 7, 2022 | Author: Recreation Law | Filed under: Skiing / Snow Boarding | Tags: Inbounds, SAR, Search, Search & Rescue, ski area, Snowboarder | Leave a comment

https://rec-law.us/3pwQ303

https://rec-law.us/3qBBw2i

State: Idaho

For some reason, this caught my eye. A search was called off for a missing snowboarder at a ski area. The snowboarder was inbounds and eventually found dead.

Why Is This Interesting?

Seems like an explanation might be needed to keep the resort out of trouble on why the search was called off.

@RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry #SnowboardFatality #Fatality #SkiLaw #SkiAreaLaw

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

What do you think? Leave a comment below.

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

Headline is more than Misleading, it is plain Wrong

Posted: December 29, 2021 | Author: Recreation Law | Filed under: Colorado, Ski Area | Tags: Colorado Skier Safety Act, Journalish, Risk, Westword | 1 Comment

https://rec-law.us/32tlT4y

State: Colorado

This is the headline about skiing in Colorado “Why Colorado’s Slopes Are More Dangerous This Year” I checked; the mountains did not get taller; the slopes did not get steeper; no one planted more trees on the slopes. How could the risk of skiing change?

The article is not about the risks of skiing. The article is about the chances of recovering if you are injured at a ski area and want to sue a ski area. The entire article is a rehash of prior Colorado case law concerning ski areas an attempt by several Plaintiff’s attorneys to make changes to the Colorado Skier Safety Act to make it easier to sue ski areas.

Honestly, a couple of the recent decisions concerning skiing in Colorado caught me off guard. However, the law is the law, and if you are injured skiing in Colorado, you will not have a chance of successfully suing the ski area for your injuries. Either accept the risk or go somewhere else to ski.

And using the media to try to get your point across in an attempt, to change the law has been around since the first person reported the news. Nothing new there.

However, the reporter writing the article, or maybe the person putting their name on the article, whomever wrote it, should at least have some journalistic integrity to be honest within the article.

More so from Westword, which for the 37 years I’ve lived in Colorado has earned a reputation for standing up and speaking the truth. Unless it has been the last ten years when Westword has been writing about ski areas. I don’t pick up the paper anymore because of that.

Why Is This Interesting?

Cause I hate it when people are misled. There is enough of a story to put an honest headline on the article. This one is just crap.

@RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry @DenverWestword #SkiAreaLaw #SkiLaw

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

What do you think? Leave a comment below.

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

Lawsuit continues against Avalanche airbag manufacturer for failure to deploy

Posted: December 24, 2021 | Author: Recreation Law | Filed under: Avalanche, Colorado | Tags: airbag, avalanche, Backcountry Access, K2, Lawsuit, San Juan Search & Rescue, SAR, Search and Rescue, Silverton Avalanche School | Leave a comment

https://rec-law.us/3GWSMFQ

State: Colorado

The good news is the lawsuit against the San Juan Search and Rescue, the Silverton Avalanche School and the school’s guide; Zachary Lovell have been dismissed.

Never Sue Search & Rescue!

They are just volunteers trying to save your dumb A$$

In that initial lawsuit, the airbag manufacturer Backcountry Access, a subsidiary of K2 was also sued.

The lawsuit argued the school, guide and pack-maker “created substantial and unreasonable risks of serious injury and death to participants” in the safety class.

The lawsuit is attempting to tie the failure of the airbag to deploy to a recall of the product.

The U.S. Consumer Products Safety Commission reported the recall of 8,200 Float 18 packs on Nov. 26, 2013, with a warning that the trigger assembly can fail “resulting in the air bag not deploying, posing a risk of death and injury in the event of an avalanche.”

Why Is This Interesting?

This will be watched, for several reasons.

Product liability lawsuits are nasty & don’t change anything.
Avalanches kill. If you are in the backcountry in the wintertime, there is not much you can do about that, except get lucky.
Backcountry skiing is growing and when a sport grows so do the lawsuits.

@RecreationLaw #RecLaw #RecreationLaw #OutdoorRecreationLaw #OutdoorLaw #OutdoorIndustry @JjasonBlevins @ColoradoSun #Fatality #Lawsuit #InherentRisk #SkiAreaLaw #Avalanche @FriendsofCAIC @COAvalancheInfo

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

What do you think? Leave a comment below.

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

In a strange round about way, Missouri Appellate Court finds release stops tubing hill claim, but only after release identified the risk the plaintiff complained of.

Posted: June 21, 2021 | Author: Recreation Law | Filed under: Missouri, Release (pre-injury contract not to sue), Snow Tubing | Tags: assumption of the risk, Inherent Risk, Missouri, Release, Snow Tubing, Tubing | Leave a comment

Court comes to the conclusion the release is valid, but starts at the very beginning of the law and circles continuously to get there.

The Good News is releases are valid under Missouri’s law. The bad news is, you might never know from this decision.

Ferbet v. Hidden Valley Golf and Ski, Inc. and Peak Resorts, Inc.,

State: Missouri, Court of Appeals of Missouri, Eastern District, Fourth Division

Plaintiff: Douglas E. Ferbet

Defendant: Hidden Valley Golf and Ski, Inc. and Peak Resorts, Inc.

Plaintiff Claims: negligent maintenance and operation of the tubing hill

Defendant Defenses:

Holding: Release

Year: 2020

Summary

Plaintiff was snow tubing, and his foot got caught in a hole or divot breaking his leg. The plaintiff signed a release, which stopped the lawsuit. The court reviewed all the possible ways the plaintiff could win and lose the lawsuit in this 12-page opinion.

Facts

Hidden Valley’s snow tubing operation, located on a hillside adjacent to its ski resort, consists of a series of parallel and adjacent lanes descending down the hill. Customers slide down the lanes while perched on rubber inner tubes provided to them by Hidden Valley. Hidden Valley maintains the surface of the lanes covered in snow and ice and separates the lanes from each other by raised rows of packed snow and ice.

On January 25, 2013, when Ferbet arrived with his family at the ticket window, he was presented with this one-page, single-spaced, form agreement. He signed and dated the agreement in the spaces designated at the bottom, purchased tickets, and then proceeded to the tubing hill. Hidden Valley provided Ferbet an inner tube to use to slide down any of the tubing lanes he chose. And during what would turn out to be Ferbet’s last slide of the day, his right foot lodged into a crevice in the sliding surface fracturing his tibia and fibula when his momentum carried the rest of his body forward.

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

This court decided to write a law school analysis of the law concerning outdoor recreation injuries. The problem was the decision is extremely difficult to read because it keeps circling back on itself to bring up new legal topics.

The first issue the court reviewed was whether the release contained assumption of the risk language specific to the injury the plaintiff suffered.

I’ve argued that releases need this language for years. However, my argument is based on proving assumption of the risk if the release is thrown out by the court. Here, the appellate court seems to require the language in a release in Missouri, but never comes right out and says so.

The first analysis the court undertook was whether the release met Missouri’s law. This is a common analysis of any case where a release is used to stop the lawsuit. The second analysis, whether the thing that caused the plaintiff’s injury was covered by the release, is also sometimes seen in reviewing releases. In that analysis, the issue is, was the release written broadly enough to cover the injury the plaintiff is complaining about.

However, in this case, the court wanted to know if the release specifically looked at the specific issue that caused the plaintiff’s injury. Did the release cover the cracks and divots in the snow where the plaintiff caught his foot?

First looking at whether the release was valid under Missouri’s law the court reviewed Missouri’s law.

It is a “well-established rule of construction that a contract provision exempting one from liability for his or her negligence will never be implied but must be clearly and explicitly stated.” In doing so, courts must ensure that the exculpatory clause complies with the bright-line test established in Alack, the seminal case on this question, requiring that the words “negligence” or “fault” or their equivalents be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs.

Here is where the case starts to veer into new areas. The exact same clause the court is reviewing was already found valid in a prior case involving the same defendant on the same tubing hill with a different plaintiff seven years earlier.

Moreover, this Court has already considered this exact same release in Guthrie v. Hidden Valley Golf and Ski, Inc., 407 S.W.3d 642 (Mo. App. E.D. 2013) (Van Amburg, J., dissenting), in which a divided panel of this Court affirmed summary judgment in Hidden Valley’s favor and found that the language in paragraph 7 releasing Hidden Valley from its future negligence was sufficiently clear and conspicuous. Id. at 648. There, Guthrie’s foot was broken when another snow tuber collided with him in the run-out portion of the hill, the area where all of the snow tubers end their runs. So, Guthrie differs somewhat from this case because of the mechanism of injury which was a collision with another snow tuber, a risk the release covered repeatedly and extensively in paragraph 2 and again in the 8th bullet point of paragraph 3, while here the injury was allegedly caused by the condition of the premises.

Normally once a court finds a release valid in a prior case, they won’t even review the latest decision, they court just issues an order saying the prior decision is controlling. Here, they acknowledge the prior case and still analyzed every possible aspect of release and assumption of risk law in Missouri.

The court found the language of the release was valid. The court also found the word negligence was a necessary requirement of the release.

The court then quoted the decision forming the basis for release law in Missouri, which stated the word negligence was not necessary as long as similar language was used and also requires a notification to the defendant of the specific risks of the activity.

Alack instructs that doing so would be insufficient because the agreement must not only pass the bright-line conspicuity test by employing the word “negligence” or its equivalent, but it also must notify the participant of the specific nature of the claims he or she is releasing.

I believe that the word negligence is not required under Missouri’s law, but I would not bet on it. If you are using a release in Missouri, make sure your release says you are not liable for your own negligence.

The court, after finding the release was valid because it was identical to a release in a prior decision, reviewed all aspects of the document, starting with whether or not the release met Missouri’s requirements for a contract.

Since this is a contract, we apply our rules of contract interpretation to determine whether the language of the agreement should be construed to encompass Ferbet’s specific claim of negligence and whether Hidden Valley is released from that claim. The Supreme Court in Alack framed the issue thusly: “There must be no doubt that a reasonable person agreeing to an exculpatory clause actually understands what future claims he or she is waiving.” “Because standardized contracts address the mass of users, the test for reasonable expectations is objective, addressed to the average member of the public who accepts such a contract, not the subjective expectations of an individual adherent

The cardinal principle of contract interpretation is to ascertain the intention of the parties and to give effect to that intent. The terms of a contract are read as a whole and are given their plain, ordinary, and usual meaning. Courts prefer a contract construction that gives meaning to all contract provisions and we avoid construing the contract so as to leave portions meaningless and inexplicable. Under the doctrine of contra proferentem, the language of the contract is construed against the drafting party. And this doctrine is enhanced in this case because we strictly construe contracts that seek to exonerate a party from acts of future negligence against the party claiming the benefit of that provision.

This is a pretty good analysis of contract law for any state. However, it is pages longer than any other decision reviewing a release as a contract, 99% of which do so in a paragraph.

The court then concluded that it was their job to determine if a reasonable party would have understood what they were signing.

Here, our task is to determine whether a reasonable person would clearly understand and be put on notice that he or she was releasing Hidden Valley from liability for a claim arising from an injury suffered as a result of Hidden Valley negligently maintaining in a dangerous condition the surface of the sliding area so that parts of the body extending from the tube would not become lodged in the sliding surface and cause injury.

It is that last section, that departs from all other reviews of releases. Whether the plaintiff knew, by reading the release, that his food could become lodged in a hole in the ice causing him injury. Normally, the analysis is, did the release say the plaintiff could be injured and was that clear and unambiguous.

The court then looked at inherent risk to determine if the risk of a hole in the snow and ice was inherent in tubing. A first in release law, but here the court found a way to tie it back in by including another area of the law never reviewed when looking at release law.

First, it looks at whether term inherent risks as mentioned in the release, define the inherent risks of the sport.

Unfortunately, while Hidden Valley tells its customers in paragraph 1 that “there are inherent and other risks associated with the sport . . .” it does not identify or define in the contract which risks are inherent and which are the “other risks.”

Inherent risks are identified as such because you assume them no matter what. You know the inherent risks of a sport or activity, by law. There is no need to list them in a release.

The court then looks to Missouri’s law to define inherent risks.

Our Supreme Court has defined a risk that is “inherent” to an activity as something “structural” or involving the “constitution or essential character” of the activity. And, generally, a participant is deemed to have assumed the risk of injury from the inherent risks of an activity that are known and understood, and the defendant is not liable for injuries stemming from such inherent risks because no duty is owed as to those risks.

The Missouri Supreme Court stated that a participant is “…deemed to have assumed the risk of injury from the inherent risks of an activity that are known and understood…” Why would there be any requirement to list them in a release? You know what they are. In fact, any releases that only protects the defendant from the inherent risks are worthless. You can’t sue for the inherent risks of a sport or activity. Therefore, you release does not need to protect you from the inherent risks. A release must protect you from the risks of the sport or activity that are not inherent.

If your release only protects you from claims from the inherent risks of a sport or activity send me a copy. jim@rec-law.us And get a new release written.

The court then veered into assumption of the risk under Missouri’s law. The case that was referenced to define inherent risks, and this court then determined a further review of assumption of the risk was needed.

Judge Wilson expounded on the history and current state of Missouri law regarding assumption of the risk. Coomer [a legal decision] identified three types of assumption of the risk, “express assumption of the risk,” “implied primary assumption of the risk,” and “implied secondary assumption of the risk.” For our purposes, implied primary assumption of the risk and express assumption of the risk are helpful to illustrate the concept of inherent risks raised by Hidden Valley in the participation agreement with Ferbet and the impact of assumption of the risk on duty. Implied primary assumption of the risk bars a plaintiff from recovery when the plaintiff has knowingly and voluntarily encountered risk that is inherent in the nature of the defendant’s activity. In express assumption of the risk, which is directly applicable to this case, the plaintiff makes an express statement that he is voluntarily accepting a specified risk and is barred from recovering damages for an injury resulting from that risk. The plaintiff’s consent relieves the defendant of any duty to protect the plaintiff from injury and as a result, the defendant cannot be negligent.

The definitions are the same as in most other states. What is confusing is why the court is taking this circuitous route to get to its decision? If the release is valid, it stops the claims, whether or not the risk is assumed or not in most states, including Missouri.

The court then attempted “tied” everything together, unsuccessfully.

Application of these principles to this case illustrates the circumstances to which the release here applies and those to which it may not and also the extent to which assumption of the risk principles may apply. It is for that reason that we have incorporated into our legal rationale these assumption of the risk principles even though the trial court relied solely on the release for its grant of summary judgment. Disposition of this case requires application of the release and of assumption of the risk.

The court circled back to the facts in this case by setting forth the analysis of the facts of the case. The court stated if the risk encountered by the plaintiff was an inherent risk of the activity, and the defendant did not increase that risk, there is no duty owed to the plaintiff. No duty, means there cannot be negligence.

A defendant owes no duty to anyone for the inherent risks of the activity. That is a basic year two of law school analysis.

However, if the defendant enhanced or increased the risk, then the risk is not inherent and whether or not the defendant is liable is based on the validity of the risk. Again, year two basic law school analysis.

Neither analysis has anything to do with release law. Is the release a valid contract? Doe the release meet the requirements of the state law on releases? If so, case over.

The court then looked at the issue if the risk was not an inherent risk.

In addition, if Ferbet’s injury was not the result of an inherent risk, but was the result of negligence on the part of Hidden Valley, then we apply the release and our analysis is whether that “other risk” was adequately covered by the release such that Ferbet was on notice that he was releasing Hidden Valley for its negligence in causing or creating the risk which resulted in his injury.

The analysis is correct, it is just written in a way that is confusing to read and seems to start a discission, leave it and then circle back to it. On top of that, it does not matter if the release is valid.

The court circled back again and reviewed if the risk suffered by the plaintiff was inherent in the activity.

Then the court changes its mind……. again. “But how uneven can the surface be and still be considered an inherent risk?”

After more analysis, the court concluded the risk was not inherent and if the claim was to be stopped it must rely upon the release. Which it could have found in the first paragraph of the decision.

As a result, we find that to the extent the particular variation that resulted in Ferbet’s injury was the result of Hidden Valley’s negligence, then this release extinguished that claim.

The court found the risk was not inherent, and the release stopped the claim. (Inherent risks, if an issue for the decision, are usually determined by the trier of fact, the jury.)

The court took off on another deviation, one which I found entertaining and correct. Many releases have stupid language in them because they are written by attorneys who don’t understand releases or written by non-attorneys. One of those phrases is the person accepts the facilities as is.

Before we turn to Ferbet’s remaining points, we briefly address paragraph 4 in which Hidden Valley seeks to exonerate itself by having the participant accept the snow tubing facility “AS IS” and that “NO WARRANTIES” are being made with respect to the snow tubing facility. These are terms of art with specific meanings in the context of the sale of goods and the sale of real estate. But these concepts have no role in this case involving a business inviting a customer onto their premises for a fee to participate in a recreational activity. Hidden Valley’s customers are not buyers and there is little if any opportunity for them to inspect the snow tubing facility before executing the release and paying their money or even before plunging down the hill.

If your release uses the language “as is” or “no warranties” send me a copy. jim@rec-law.us And get a new release written.

The court points out that the language is from the sale of goods and real estate and has no place in a release. On top of that, you are asking a person, who probably has never seen the activity to agree it is OK. If there is an opportunity for a release to be invalidated, it is by forcing the signor to agree to something that they cannot legally agree to.

The plaintiff argued the snow tubing hill was a common carrier, which requires the highest level of care. The court quickly found a tubing hill is not a common carrier.

After that the issue of whether the plaintiff knew what he was signing came back, and the court dismissed the claim with this statement.

It has been uniformly held that a person who can read, and is in no way prevented from reading a written contract before he signs it, is bound by its terms, and cannot void it on the ground that he did not know its contents when he signed it.”). Ferbet testified that nothing prevented him from reading the document.

Which seems to be contrary to its statement where the court determined if the plaintiff would have been fully informed of the possible risks as I quoted above.

After twelve pages, the court concluded the defendant was not liable.

So Now What?

There is a great analysis of how the legal system looks; it is just rarely done outside of law school. However, reading and understanding the decision the way it jumps around makes it very difficult.

The decision makes several great points; it is just maddening to try to find them and understand them in the circular decision.

What is confusing it the courts’ statement about wanting the release to identify the inherent risks of the activity. Inherent risks are known by people under the law and do not need to be identified. You can’t sue over the inherent risks because they are inherent, and you know them.

The good news is Missouri allows the use of a release, if it is carefully written correctly.

If you email me, a release with either of the language pointed out above, include your mailing address, and I’ll send you a sticker or magnet or something cheap and kitschy!

What do you think? Leave a comment.

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

Ferbet v. Hidden Valley Golf and Ski, Inc. and Peak Resorts, Inc.,

Posted: June 21, 2021 | Author: Recreation Law | Filed under: Missouri, Snow Tubing | Tags: assumption of the risk, Inherent Risk, Missouri, Release, Snow Tubing, tubing hill | Leave a comment

Ferbet v. Hidden Valley Golf and Ski, Inc. and Peak Resorts, Inc.,

Douglas E. Ferbet, Appellant,

Hidden Valley Golf and Ski, Inc. and Peak Resorts, Inc., Respondents.

No. ED108495

Court of Appeals of Missouri, Eastern District, Fourth Division

December 15, 2020

Appeal from the Circuit Court of St. Louis County 18SL-CC00050 Honorable Mary Elizabeth Ott.

James M. Dowd, P.J., Gary M. Gaertner, Jr., J., and Robin Ransom, J.

James M. Dowd, Presiding Judge.

Introduction

Appellant Douglas Ferbet’s recreational outing with his family on January 25, 2013 to Respondents’ snow tubing hill in Eureka, Missouri ended abruptly when as he slid down the hill seated on a large rubber inner tube, his dangling right foot engaged with a crevice in the sliding surface of the slippery slope breaking his leg in two places. Now, Ferbet appeals the trial court’s summary judgment entered in favor of Respondents Hidden Valley and Peak Resorts (Hidden Valley) on Ferbet’s negligence claim in which he alleged that his injuries were caused by Hidden Valley’s negligent maintenance of the tubing hill. Hidden Valley sought summary judgment based on release-of-liability language in an agreement Hidden Valley required Ferbet to sign before selling snow tubing tickets to him and his family just before they headed to the hill.

The trial court found the agreement enforceable and therefore that Ferbet had released Hidden Valley from his negligence claim based on the document’s references both to specific risks involved in snow tubing and that Ferbet was releasing Hidden Valley from liability for injuries including those caused by Hidden Valley’s own negligence.

We affirm the judgment, but our legal rationale is somewhat different than the trial court’s. We agree with the trial court that while exculpatory clauses like the one here that purport to release a party from its own future negligence are disfavored, they are not prohibited by Missouri public policy, and to the extent Ferbet has adequately pled a negligence claim, the language of this agreement is sufficiently specific to encompass Ferbet’s claim and, importantly, it also clearly and conspicuously states that even claims resulting from Hidden Valley’s negligence are released. We also affirm because to the extent that the risk Ferbet claims caused his injury was a known and understandable inherent risk of snow tubing for which Hidden Valley owed Ferbet no duty, his claim is without merit under the doctrine of assumption of the risk.

Background

At all relevant times, customers, in order to be permitted to buy tickets, were required to read and sign the following document, which we reproduce verbatim here, purporting to identify certain general and specific injury risks posed by snow tubing. The document also contains language that purports to release Hidden Valley from liability for injuries sustained while snow tubing including for claims arising from Hidden Valley’s own negligence: POLAR PLUNGE SNOW TUBING HIDDEN VALLEY SKI-TUBE-RIDE AREA, WILDWOOD, MISSOURI ACKNOWLEDGMENT OF RISK AND AGREEMENT NOT TO SUE THIS IS A CONTRACT! * * * * * * * * * * PLEASE READ! 1. I understand and acknowledge that snow tubing is a dangerous, risky sport and that there are inherent and other risks associated with the sport and that all of these risks can cause serious and even fatal injuries. 2. I understand that part of the thrill, excitement and risks of snow tubing is that the snow tubes all end up in a common, run-out area at various times and speeds and that [sic] is my responsibility to try to avoid hitting another snow tuber, and it is also my responsibility to try to avoid being hit by another snow tuber, but that notwithstanding these efforts by myself and other snow tubers, there is a risk of collisions. 3. I acknowledge that the risks of snow tubing include, but are not limited to, the following: • Variations in the steepness and configuration of the snow tubing chutes and run-out area; • Variations in the surface upon which snow tubing is conducted, which can vary from wet, slushy conditions to hard packed, icy conditions and everything in between; • Fence and/or barriers at or along portions of the snow tubing area, the absence of such fence and/or barriers and the inability of fences and/or barriers to prevent or reduce injury; • Changes in the speed at which snow tubers travel depending on surface conditions, the weight of snow tubers and the inter-linking of snow tubers together to go down the snow tubes runs; • The chance that a patron can fall out, be thrown out or otherwise leave the snow tube; • The chance that a snow tube can go from one run to another run, regardless of whether or not there is a barrier between runs, and the chance that a snow tube can go beyond the run-out area; • The chance that a snow tube can go up the run-out hill and then slide in the general run-out area; • Collisions in the run-out area and other locations of the snow tubing facility, with collisions happening between snow tubes, between a snow tube and another patron, between a snow tube and a snow tubing facility attendant, between a snow tubing patron who may or may not be in or on a snow tube at the time of the collision and other sorts of collisions; collisions with fixed objects, obstacles or structures located within or outside of the snow tube facility; • The use of the snow tubing carpet lift or tow, including falling out of a tube, slipping backwards, becoming entangled with equipment, railing and fencing, slipping and falling on the carpet lift and/or the adjacent deck and other risks. 4. I also acknowledge and understand that I am accepting AS IS the snow tube and any other equipment involved with the snow tubing activity, including lifts and tows, and further acknowledge and understand that NO WARRANTIES are being extended to me with respect to any aspect of the snow tubing facility. 5. I agree and understand that snow tubing is a purely voluntary, recreational activity and that if I am not willing to acknowledge the risk and agree not to sue, I should not go snow tubing. 6. I agree to allow the use of my image or likeness incidental in any photograph, live recorded video display or other transmission or reproduction of the event in any form to which this agreement admits me. 7. IN CONSIDERATION OF THE ABOVE AND BEING ALLOWED TO PARTICIPATE IN THE SPORT OF SNOWTUBING, I AGREE THAT I WILL NOT SUE AND WILL RELEASE FROM ANY AND ALL LIABILITY, HIDDEN VALLEY GOLF AND SKI, INC. OR PEAK RESORTS, INC., THEIR OWNERS, OPERATIONS, LESSORS, LESSEES, OFFICERS, AGENTS, AND EMPLOYEES IF I OR ANY MEMBER OF MY FAMILY IS INJURED WHILE USING ANY OF THE SNOWTUBING FACILITIES OR WHILE BEING PRESENT AT THE FACILITIES, EVEN IF I CONTEND THAT SUCH INJURIES ARE THE RESULT OF NEGLIGENCE ON THE PART OF THE SNOWTUBING FACILITY. 8. I further agree that I WILL INDEMNIFY AND HOLD HARMLESS HIDDEN VALLEY GOLF AND SKI, INC. AND PEAK RESORTS, INC. THEIR OWNERS, OPERATORS, LESSORS, LESSEES, OFFICERS, AGENTS, AND EMPLOYEES from any loss, liability, damages or cost of any kind that it may incur as the result of any injury to myself or to any member of my family or to any person for whom I am explaining that meaning of this agreement, even if it is contended that any such injury was caused by the negligence on the part of the snow tubing facility. 9. I understand and agree that this Agreement is governed by the laws of the State of Missouri. I further agree that if any part of this Agreement is determined to be unenforceable, all other parts shall be given full force and effect. 10. I have read and understand the foregoing Acknowledgement of Risks and Agreement Not to Sue. I understand by reading this that I may be giving up the rights of my child and spouse to sue as well as giving up my own right to sue.

On December 27, 2018, Ferbet filed suit alleging that his injuries and damages were caused by Hidden Valley’s negligent maintenance and operation of the tubing hill, specifically with respect to the dangerous condition of the sliding surface that he claims caused his injuries. After some discovery took place, Respondents filed their motion for summary judgment on the sole basis that Ferbet had released his claim against them by signing the above agreement.

In his response, Ferbet asserted that the release was unenforceable as against public policy. He also alleged that amusement park and recreational area operators such as Hidden Valley should be considered common carriers and therefore held to the highest degree of care, as opposed to ordinary care, and that an exculpatory clause should be unenforceable when the highest degree of care is owed.

After a June 7, 2019 hearing on the motion, the trial court granted summary judgment based on its findings that the facts were undisputed that Ferbet had signed the agreement; that the agreement was enforceable and not against public policy; that its operative release language clearly and explicitly exonerated Hidden Valley for its negligence in causing Ferbet’s injuries; and that Hidden Valley is not a common carrier subject to the highest degree of care. This appeal follows.

Standard of Review

On appeals from summary judgment, our review is essentially de novo and we review the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Missouri Supreme Court Rule 74.04 governs summary judgment procedures. The trial court shall grant summary judgment “[i]f the motion, the response, the reply and the sur-reply show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 74.04(c)(6); See also, Id. at 378. The trial court and this Court look to the pleadings, depositions, answers to interrogatories and admissions on file together with any affidavits to determine whether the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Miller v. River Hills Development, 831 S.W.2d 756, 757 (Mo. App. E.D. 1992). But “[t]he key to a summary judgment is the undisputed right to a judgment as a matter of law; not simply the absence of a fact question.” Birdsong v. Christians, 6 S.W.3d 218, 223 (Mo. App. S.D. 1999) (quoting Southard v. Buccaneer Homes Corp., 904 S.W.2d 525, 530 (Mo. App. S.D. 1995)).

Where the defending party is the movant, it may establish a right to judgment by showing: (1) facts negating any one of the non-movant’s elements; (2) that the non-movant, after an adequate period of discovery, has not been able and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the non-movant’s elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense. ITT, 854 S.W.2d at 381.

Here, since Hidden Valley has asserted the release as an affirmative defense, we review de novo the legal and fact questions (1) whether the release before us is enforceable to release Ferbet’s claims as a matter of law, and (2) whether Hidden Valley has established as a matter of undisputed fact that the injury-causing negligent conduct alleged by Ferbet is within the purview of this release. Alack v. Vic Tanny Intern. of Missouri, Inc., 923 S.W.2d 330, 337 (Mo. banc 1996); see also Abbott v. Epic Landscape Prods., L.C., 361 S.W.3d 13, 19 (Mo. App. W.D. 2011), as modified (Jan. 31, 2012).

Hidden Valley also asserted assumption of the risk as an affirmative defense. Although it did not seek summary judgment on that basis nor did the trial court rely on assumption of the risk in its grant of summary judgment here, our review is de novo and we may do so. See ITT Commercial, 854 S.W.2d at 387-88 (summary judgment may be “affirmed in this Court on an entirely different basis than that posited at trial”). In fact, for the reasons we provide below, we find it necessary to employ Hidden Valley’s assumption of the risk affirmative defense in addition to the release in order to resolve this case.

Discussion

1. In Missouri, exculpatory clauses are disfavored but not void as against public policy.

In his first point, Ferbet alleges the trial court failed to address his affirmative avoidance that the exculpatory clause before us violates public policy and is therefore unenforceable. While we may agree and acknowledge that there continue to be strong policy arguments why these anticipatory releases are problematic, e.g., the party best positioned to prevent the harm is relieved of liability and instead the burden of loss is placed upon the party least able to prevent it, the public policy implications of such releases have been litigated, analyzed, and largely decided by our Supreme Court. See Alack, 923 S.W.2d at 334 (“Although exculpatory clauses in contracts releasing an individual from his or her own future negligence are disfavored, they are not prohibited as against public policy.”) In short, that public policy ship has sailed aboard the S.S. Alack.

Thus, our initial analysis is whether the release here complies with the dictates of Alack and its progeny to which we now turn. It is a “well-established rule of construction that a contract provision exempting one from liability for his or her negligence will never be implied but must be clearly and explicitly stated.” Id. (citing Poslosky v. Firestone Tire and Rubber Co., 349 S.W.2d 847, 850 (Mo. 1961)). In doing so, courts must ensure that the exculpatory clause complies with the bright-line test established in Alack, the seminal case on this question, requiring that the words “negligence” or “fault” or their equivalents be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs. Alack, 923 S.W.2d at 337.[ 1]

Moreover, this Court has already considered this exact same release in Guthrie v. Hidden Valley Golf and Ski, Inc., 407 S.W.3d 642 (Mo. App. E.D. 2013) (Van Amburg, J., dissenting), in which a divided panel of this Court affirmed summary judgment in Hidden Valley’s favor and found that the language in paragraph 7 releasing Hidden Valley from its future negligence was sufficiently clear and conspicuous. Id. at 648. There, Guthrie’s foot was broken when another snow tuber collided with him in the run-out portion of the hill, the area where all of the snow tubers end their runs. Id. at 646. So, Guthrie differs somewhat from this case because of the mechanism of injury which was a collision with another snow tuber, a risk the release covered repeatedly and extensively in paragraph 2 and again in the 8th bullet point of paragraph 3, while here the injury was allegedly caused by the condition of the premises.

i. Paragraph 7’s release language satisfies Alack’s bright-line test.

Nevertheless, we abide by our previous holding in Guthrie that the release language here satisfies Alack’s conspicuity requirement. Paragraph 7, located three quarters down the one-page agreement, provides in all capital letters that snow tubing participants agree to release Hidden Valley for claims if injured while using or being present at the snow tubing facility “even if … such injuries are the result of negligence on the part of” Hidden Valley.

ii. The word “negligence” is necessary, but we still construe the whole contract.

But our inquiry does not end with the mere inclusion of the word “negligence.” If that was the case, Hidden Valley could have simply presented its customers with a 9-word declaration to sign: “I release Hidden Valley for all claims including negligence.” Alack instructs that doing so would be insufficient because the agreement must not only pass the bright-line conspicuity test by employing the word “negligence” or its equivalent, but it also must notify the participant of the specific nature of the claims he or she is releasing. Alack, 923 S.W.2d at 337.

Hidden Valley seems to concede this by virtue of its 850-word agreement here in which it endeavors to comprehensively identify the risks associated with, inherent to, or that may arise during snow tubing. And while paragraph 7 sets forth the release language on which Hidden Valley relies, paragraph 7 does not stand alone in this contract. In fact, with its opening phrase “[i]n consideration of the above…,” paragraph 7 incorporates the preceding six numbered paragraphs, the first four of which specifically address the types and nature of the risks involved in snow tubing.[ 2] In this way, Hidden Valley has sought to define and identify the risks of injury from snow tubing for which it not only seeks to obtain a release from its customers but also requests its customers to assume those risks.

Since this is a contract, we apply our rules of contract interpretation to determine whether the language of the agreement should be construed to encompass Ferbet’s specific claim of negligence and whether Hidden Valley is released from that claim. The Supreme Court in Alack framed the issue thusly: “There must be no doubt that a reasonable person agreeing to an exculpatory clause actually understands what future claims he or she is waiving.” Id. at 337-38. “Because standardized contracts address the mass of users, the test for reasonable expectations is objective, addressed to the average member of the public who accepts such a contract, not the subjective expectations of an individual adherent.” Woods v. QC Fin. Servs., Inc., 280 S.W.3d 90, 95 n.1 (Mo. App. E.D. 2008) (citations and quotations omitted).

The cardinal principle of contract interpretation is to ascertain the intention of the parties and to give effect to that intent. Dunn Indus. Group, Inc. v. City of Sugar Creek, 112 S.W.3d 421, 428 (Mo. banc 2003). The terms of a contract are read as a whole and are given their plain, ordinary, and usual meaning. Id.; Alack, 923 S.W.2d at 337-38. Courts prefer a contract construction that gives meaning to all contract provisions and we avoid construing the contract so as to leave portions meaningless and inexplicable. Storey v. RGIS Inventory Specialists, LLC, 466 S.W.3d 650, 655 (Mo. App. E.D. 2015). Under the doctrine of contra proferentem, the language of the contract is construed against the drafting party. Burns v. Smith, 303 S.W.3d 505, 509 (Mo. banc 2010). And this doctrine is enhanced in this case because we strictly construe contracts that seek to exonerate a party from acts of future negligence against the party claiming the benefit of that provision. Alack, 923 S.W.2d at 334.

The first three numbered paragraphs are the focus of our attention. In paragraph 1, Hidden Valley very broadly and generally puts customers on notice that snow tubing is dangerous and risky and that there are inherent and other risks associated with the activity that can cause injury or death. Paragraph 2 explains in detail the risk of collisions during snow tubing. And in paragraph 3 with its nine subparts, Hidden Valley identifies and notifies customers of a myriad of the risks they might face.

iii. Assumption of the risk – the nature of the risk determines whether a duty exists.

Hidden Valley’s reference to “inherent risks” of the sport of snow tubing[ 3] presents an important legal concept that requires our attention because the extent to which the risk that caused Ferbet’s injuries is an inherent risk to snow tubing will determine whether the release here even applies. Unfortunately, while Hidden Valley tells its customers in paragraph 1 that “there are inherent and other risks associated with the sport . . .” it does not identify or define in the contract which risks are inherent and which are the “other risks.”

Our Supreme Court has defined a risk that is “inherent” to an activity as something “structural” or involving the “constitution or essential character” of the activity. Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 202 (Mo. banc 2014). And, generally, a participant is deemed to have assumed the risk of injury from the inherent risks of an activity that are known and understood, and the defendant is not liable for injuries stemming from such inherent risks because no duty is owed as to those risks. Id. at 197.

In the Coomer opinion, which doubles as an ode to the national pastime, Judge Wilson expounded on the history and current state of Missouri law regarding assumption of the risk. Coomer identified three types of assumption of the risk, “express assumption of the risk,” “implied primary assumption of the risk,” and “implied secondary assumption of the risk.” Id. at 192. For our purposes, implied primary assumption of the risk and express assumption of the risk are helpful to illustrate the concept of inherent risks raised by Hidden Valley in the participation agreement with Ferbet and the impact of assumption of the risk on duty. Implied primary assumption of the risk bars a plaintiff from recovery when the plaintiff has knowingly and voluntarily encountered risk that is inherent in the nature of the defendant’s activity. Id. at 192. In express assumption of the risk, which is directly applicable to this case, the plaintiff makes an express statement that he is voluntarily accepting a specified risk and is barred from recovering damages for an injury resulting from that risk. Id. at 191. The plaintiff’s consent relieves the defendant of any duty to protect the plaintiff from injury and as a result, the defendant cannot be negligent. Id. at 193.

The rule that a defendant is not liable because it owes no duty for the known and understandable inherent risks of an activity “extends only to those risks” that the defendant “is powerless to alleviate without fundamentally altering” the activity. Id. But the defendant “still owes a duty of reasonable care not to alter or increase such inherent risks.” Id. at 197-198. Coomer illustrates this point with two examples. The first is the baseball spectator injured by a foul ball which he claimed he was prevented from seeing because he was being repeatedly jostled and distracted by the team’s dinosaur mascot. Id. at 198 (citing Lowe v. California League of Professional Baseball, 56 Cal.App.4th 112, 65 Cal.Rptr.2nd 105 (1997)). While getting hit by a foul ball is an inherent risk to attending a baseball game for which implied primary assumption of the risk precludes recovery because the team owes no duty of care, the jury may hold the team liable if the negligence of the mascot altered or increased that otherwise inherent risk and that negligence causes the plaintiff’s injuries. Coomer, at 198.

The second example Coomer cites is from Sheppard v. Midway R-1 Sch. Dist., 904 S.W.2d 257 (Mo. App. W.D. 1995), which involved a high school long-jumper injured during a competition by a bad landing in the landing pit. Id. at 259. The court held that even though the student cannot sue the school district for a bad landing because that is an inherent risk to long-jumping, the jury may hold the school district liable when that inherent risk is altered or increased by the defendant’s negligence in preparing the landing pit. Id. at 264.

Thus, if Ferbet’s injury resulted from a known and understandable risk deemed to be inherent to the sport of snow tubing, and Hidden Valley did not negligently enhance or increase that inherent risk, then the release language in paragraph 7 is not relevant nor applicable because Hidden Valley owed Ferbet no duty with respect to risks inherent to snow tubing. But if Hidden Valley negligently enhanced or increased that inherent risk, then the release language in the agreement is applicable and operative and we would look to the agreement as a whole to determine whether that enhanced risk was covered by the release. In addition, if Ferbet’s injury was not the result of an inherent risk, but was the result of negligence on the part of Hidden Valley, then we apply the release and our analysis is whether that “other risk” was adequately covered by the release such that Ferbet was on notice that he was releasing Hidden Valley for its negligence in causing or creating the risk which resulted in his injury.

iv. The risks created by an uneven sliding surface on Hidden Valley’s snow tubing hill are inherent to the activity of snow tubing.

We turn now to the crevice in the sliding surface that caused Ferbet’s injury and we find that an uneven sliding surface and the potential risks it creates for snow tubers are inherent risks of snow tubing because they are “structural” to the activity and involve the “essential character” of snow tubing. Coomer, 437 S.W.3d at 202. The packed snow and ice surface is outdoors at the mercy of both the changing meteorological conditions and the continual battering from plunging snow tubes and tubers. As with traditional snow sledding, an uneven surface and its impact on the participant’s experience and enjoyment seems to be part of the “essential character” of snow tubing.

But how uneven can the surface be and still be considered an inherent risk? Unfortunately, the record below is largely silent. We know little about the size or configuration of the spot on the surface in which Ferbet’s foot became lodged. Ferbet described it as an area of riprap which seemed to be along the raised rows of packed snow and ice that separated the individual lanes. The agreement, for its part, not only identified these rows but mentioned that snow tubers may slide up and over these rows into the next lane. We also know little about Hidden Valley’s care and maintenance of the surface and whether Hidden Valley was aware of the danger of body parts becoming lodged in crevices in the surface or whether there had been any, and if so, how many prior similar instances like Ferbet’s.

As the Supreme Court in Coomer recognized, a risk that is deemed inherent may become actionable if the risk is altered or enhanced by the negligence of the activity operator. Id. at 198. So, an uneven area that simply adds to snow tubers’ thrill by pitching them up, and perhaps occasionally out, of the tube is one thing. But a divot that repeatedly and unexpectedly catches and fractures customers’ limbs may go beyond being an inherent risk and become actionable because it is no longer a known and understandable risk that is part of the structure and essence of the activity.

While the paucity of this record certainly limits the concreteness of our factual findings, it does not prevent us from reaching the following legal conclusions and holdings, each of which ends in the demise of Ferbet’s appeal: First, to the extent the crevice was merely a known and understandable risk inherent to snow tubing, then Hidden Valley owed Ferbet no duty and the release is inapplicable and irrelevant because there is no claim to release; Second, if the record had demonstrated that the crevice was so big and dangerous that it went beyond what would be deemed an inherent risk to snow tubing and instead would constitute a negligently maintained surface, then Hidden Valley would owe Ferbet a duty and in that circumstance, the release would be triggered. Looking to the contract, specifically, paragraph 3, we find it adequately notified Ferbet that there could be “[v]ariations in the surface upon which snow tubing is conducted, which can vary from wet, slushy conditions to hard packed, icy conditions and everything in between.” As a result, we find that to the extent the particular variation that resulted in Ferbet’s injury was the result of Hidden Valley’s negligence, then this release extinguished that claim.

Before we turn to Ferbet’s remaining points, we briefly address paragraph 4 in which Hidden Valley seeks to exonerate itself by having the participant accept the snow tubing facility “AS IS” and that “NO WARRANTIES” are being made with respect to the snow tubing facility. These are terms of art with specific meanings in the context of the sale of goods and the sale of real estate. Davis Indus. Sales, Inc. v. Workman Const. Co., Inc., 856 S.W.2d 355, 359 (Mo. App. S.D. 1993); Harper v. Calvert, 687 S.W.2d 227, 230 (Mo. App. W.D. 1984). But these concepts have no role in this case involving a business inviting a customer onto their premises for a fee to participate in a recreational activity. Hidden Valley’s customers are not buyers and there is little if any opportunity for them to inspect the snow tubing facility before executing the release and paying their money or even before plunging down the hill.

In light of the above, we deny Ferbet’s first point.

2. Hidden Valley was not a common carrier in that its tubing hill was not a commercial ride for hire.

Ferbet asserts that because they operate rides and slides, recreation area operators such as Hidden Valley should be considered common carriers and should therefore be held to the highest degree of care. Ferbet then alleges without citation to any authority that such a degree of care is inconsistent with the enforcement of an exculpatory clause. We disagree.

Missouri law applies a heightened degree of care only to a very small number of well-defined activities including common carriers, such as railroads, buses, commercial airlines, streetcars, and elevator operators; electric companies; users of explosives; users of firearms; and motor vehicle operators. Chavez v. Cedar Fair, LP, 450 S.W.3d 291, 296 (Mo. banc 2014). Otherwise, the applicable standard is the ordinary degree of care. Id. (citing Lopez v. Three Rivers Elec. Co-op., Inc., 26 S.W.3d 151, 158 (Mo. banc 2000)) (“The common law ordinary negligence rule requires a defendant to exercise the degree of care of a reasonable person of ordinary prudence under similar circumstances, now commonly referred to as the ‘ordinary degree of care.'”).

In Missouri, neither the common carrier designation nor the application of the highest degree of care has ever been extended to amusement parks or recreation areas such as ski resorts or snow tubing hills. Id. at 296; see also McCollum v. Winnwood Amusement Co., 332 Mo. 779, 59 S.W.2d 693, 697 (1933) (holding the operator of a place of public amusement operating has a duty of ordinary care to its patrons); Lewis v. Snow Creek, Inc., 6 S.W.3d 388, 392 (Mo. App. W.D. 1999) (applying a duty of ordinary care when skiers were injured due to icy conditions). And, since this activity resembles both skiing and an amusement park ride, we decline Ferbet’s invitation to do so. Hidden Valley owed Ferbet a duty of ordinary care in connection with its operation and maintenance of its snow tubing hill.

Point two is denied.

3. The summary judgment entered in this case fully disposed of Ferbet’s affirmative avoidances and did not violate Ferbet’s due process rights.

Ferbet claims the trial court’s grant of summary judgment violated his due process rights because the court failed to address his numerous affirmative avoidances. We have reviewed Ferbet’s affirmative avoidances and find they fall into two groups. The first group attacks the formation of the agreement here by raising such issues as duress and that Ferbet had not actually read or understood the document before signing it. The second group of affirmative avoidances broadly attacks the exculpatory clause on public policy grounds. And we conclude from our review of the record and in our opinion here that Ferbet’s affirmative avoidances have been fully considered and resolved.

With respect to Ferbet’s attacks on the contract’s formation, the trial court’s enforcement of the agreement necessarily signifies that the trial court found as a matter of law that this was a properly formed agreement when Ferbet signed it and dated it. Austin v. Brooklyn Cooperage Co., 285 S.W. 1015, 1017 (Mo. App. 1926) (“It has been uniformly held that a person who can read, and is in no way prevented from reading a written contract before he signs it, is bound by its terms, and cannot void it on the ground that he did not know its contents when he signed it.”). Ferbet testified that nothing prevented him from reading the document.

As for Ferbet’s affirmative avoidances regarding the public policy considerations relevant to exculpatory clauses, we discussed at length above that Missouri case law is settled that though disfavored, exculpatory clauses are not prohibited as against public policy. Alack, 923 S.W.2d at 334. In effect, Ferbet’s public policy arguments have been baked into the controlling precedent by Alack and its progeny. We decline Ferbet’s invitation to ignore that precedent.

Point three is denied.

Conclusion

The trial court’s grant of summary judgment is affirmed.

Gary M. Gaertner, Jr., J. and Robin Ransom, J. concur.

———

Notes:

[ 1] We also note that Alack sought to distinguish between ordinary negligence and gross negligence in the context of exculpatory clauses with the former being disfavored but enforceable and the latter void as against public policy. Id. at 337 (“there is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence[.]” (emphasis added)). However, in Decormier v. Harley-Davidson Motor Co. Group, Inc., the Supreme Court erased this distinction because “Missouri courts do not recognize degrees of negligence at common law.” 446 S.W.3d 668, 671 (Mo. banc 2014). Decormier permits exculpatory clauses to shield parties from negligence but holds exculpatory clauses provide no protection for reckless conduct or for intentional torts. Id. Here Ferbet’s claims against Hidden Valley were for ordinary negligence.

[ 2] But even if paragraph 7 had not included the phrase “[i]n consideration of the above…”, our rule of contract interpretation require us to consider paragraph 7 in conjunction with the remaining portions of the contract including the paragraphs that seek to identify the risks involved in snow tubing.

[ 3] Hidden Valley refers to snow tubing as a sport. We need not decide whether this is the case, or whether riding a roller coaster is a sport, whether descending the log flume at Six Flags is a sport or, for that matter, whether golf is a sport.

———

Inherent Risk is the part of any sport and is assumed by participants when undertaking the activity.

Posted: May 31, 2021 | Author: Recreation Law | Filed under: Assumption of the Risk, Ski Area, Skiing / Snow Boarding, Wyoming | Tags: Fresh Snow, Inherent Risk, Jackson Hole Mountain Resort, skiing, Stump, Wyoming, Wyoming Recreation Safety Act | Leave a comment

A ski trunk just beneath the surface of fresh snow is an inherent risk of skiing in Wyoming.

Standish v. Jackson Hole Mountain Resort Corporation

State: Wyoming, 10^th Circuit Court of Appeals

Plaintiff: Thomas A. Standish, IV; Meghan Keiter

Defendant: Jackson Hole Mountain Resort Corporation

Plaintiff Claims: Negligence and Loss of Consortium

Defendant Defenses: Inherent Risk as identified under the Wyoming Recreation Safety Act

Holding: For the Defendant Ski Area

Year: 2021

Summary

While skiing in an ungroomed area at Jackson Hole Mountain Resort, Thomas Standish was injured when his right ski struck a six-and-a-half-foot stump covered with freshly fallen snow. Standish and his wife brought a negligence lawsuit against Jackson Hole Mountain Resort (“Jackson Hole”) to recover for his injuries.

Jackson Hole moved for summary judgment, contending the Wyoming Recreation Safety Act (WRSA) limited Jackson Hole’s liability because Standish’s injury was a result of an “inherent risk” of alpine skiing. The district court granted summary judgment, finding that a tree stump covered by fresh snow was an inherent risk of skiing for which the WRSA precludes liability. We agree with that conclusion. Thus, exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Facts

In January 2017, California residents Thomas Standish and his then-fiancée, Megan Keiter, traveled to Jackson Hole Mountain Resort as part of a “bucket list” ski trip. From January 8 through 10-the three days prior to Standish’s arrival-Jackson Hole had received about 27 inches of new snow, and on the morning of January 11, Jackson Hole received an additional 18 inches of snow. Over these four days, the mid-mountain depth of the snow increased from 56 to 80 inches.

On January 11, the couple purchased ski passes for Jackson Hole. The backs of these “J Cards” bear language indicating that the pass-holder “acknowledges that participation in any and all winter recreation activities at [Jackson Hole], including . . . skiing . . . involves SUBSTANTIAL AND INHERENT RISKS, HAZARDS, AND DANGERS THAT MAY RESULT IN SERIOUS INJURY, DEATH or damages to property.” Aplt. App. 41. The couple first skied a few groomed runs. They then ventured down an off-piste run near the Thunder Chairlift line, with Standish-the more experienced skier-leading the way. “Off-piste” is a term for a ski run or area that is ungroomed and left in its natural state. See Roberts v. Jackson Hole Mountain Resort Corp., 884 F.3d 967, 970 (10th Cir. 2018). About halfway down the mountain, Standish’s right ski hit the top of a six-and-a-half-foot-tall tree stump that was covered with about two inches of fresh snow. His ski came off on impact, and he broke multiple bones in his right leg.

Standish underwent surgery, receiving fourteen screws, two metal plates, and a bone graft. After returning to California a few days later, Standish suffered a pulmonary embolism, a common complication resulting from serious fractures. This required anti-coagulation injections in his abdomen for several months. Because of Standish’s long recovery, he and Keiter pushed their wedding back from June to September 2017. They also sold their business because Standish was unable to work during his recovery.

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

This is a simple case that explains the issues between the two major types of risk as identified under the law, inherent and non-inherent risks. The Wyoming Recreation Safety Act defines for Wyoming what is an inherent risk.

“Inherent risk” with regard to any sport or recreational opportunity means those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity;

An inherent risk is a risk that if removed from the activity, would change the activity such that it would not be the same. Or looking at inherent risks another way, remove the inherent risks and the sport would not really exist.

Hitting things under the snow, no matter how they look when the snow is gone, is an inherent risk of skiing.

When a statute defines the inherent risks of an activity, the judge is able to determine in advance if the defendant owes a duty to the injured plaintiff. If the inherent risks are not defined by statute, then a jury decides whether the risk incurred by the plaintiff was inherent, unless the risk is obviously inherent.

Most states that have specific statutes covering outdoor recreation activities do so by listing the risks of the activity and by law makes those inherent so an injured party cannot sue for their injuries. As an example, the Colorado Skier Safety Act has a long list of what is an inherent risk of skiing in Colorado.

(3.5) “Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. The term “inherent dangers and risks of skiing” does not include the negligence of a ski area operator as set forth in section 33-44-104 (2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.

Obviously, since jumps, machine made snow, extreme terrain, lift towers, signs, posts, fences, hydrants, etc. are natural and only on the slope because of the acts of man, those risks are not naturally, inherent. However, since the act defines them as inherent, they now are and cannot be used by an injured plaintiff to make a claim.

The Wyoming Recreation Safety Act covers a multitude of sports, not just skiing and does not list the risks that are inherent. Consequently, the act does not do anything to provide any greater protection than existed in the common law. Therefore, each judge or jury makes the determination if the risk complained of by the plaintiff was inherent in the sport.

Under Wyoming law and the Wyoming Recreation Safety Act removes any duty, the first element to prove negligence, of the defendant to the plaintiff if the risk is inherent.

In other words, because the WRSA provides that a participant has assumed certain risks that are inherent to the activity, the recreational provider typically owes no duty for inherent risks of an activity. In sum, a recreational “provider has no duty to eliminate, alter, or control the inherent risks of an activity, and any person who chooses to take part in a sport or recreational opportunity assumes all inherent risks [that] are associated with that opportunity.”

Under the WRSA, a reasonableness standard is applied to determine if the risk complained of is inherent.

I]f reasonable minds cannot differ as to whether or not a given set of factual circumstances involve an ‘inherent risk’ of skiing (in this particular instance, we are concerned with skiing, or fill in the blank as the case might be), then the protections of the [W]RSA apply, and the litigation of that controversy must come to an end.

Applying that reasonableness standard, the courts looked at the uncontested facts.

Here, the operative facts are undisputed. The mountain had received 45 inches of fresh snow in the four days prior to the accident. The accident took place in an off-piste-and therefore ungroomed-area. Standish’s injury was caused by a collision with the top of the stump, which was lightly covered with the fresh snow and thus not visible to Standish. The stump had been cut to a height of six-and-a-half feet at some point in the past to mitigate some problem.

The court found that the stump was an inherent risk of skiing “…we conclude that encountering a snow-covered stump in an ungroomed area is an inherent risk of alpine skiing.”

A key component of this analysis was the run was off-piste and ungroomed. If the stump was located on a groomed run, the review and conclusion would have been different. The conclusion would have also been different if an employee of the defendant had told the plaintiff’s that the run was safe or free from hazards.

The court concluded:

Standish’s accident was the result of an unfortunate confluence of a stump, an ungroomed run, and the spectacular snow levels of the previous days. The combination of these factors is an inherent risk of skiing, a sport as thrilling as it can be risky. And the WRSA reflects this by limiting the duty owed by an entity offering access to such a sport. Accordingly, we affirm the district court’s grant of summary judgment in favor of Jackson Hole on the basis of the WRSA.

So Now What?

The great thing about this article is the courts clear expression of what constitutes an inherent risk. If the risk is inherent, you cannot sue the defendant because you automatically assume those risks when you engage in the sport.

The second is the risk might not have been inherent if the run was not off-piste. The risk would definitely not have been inherent if the plaintiff had been told by an employee of the defendant that there were no risks.

This second issue is, the cause of many lawsuits when the statements of the employee changes or removes any risk management issues the defendant has in place. Marketing makes promises Risk Management has to pay for.

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

Standish v. Jackson Hole Mountain Resort Corporation

Posted: May 31, 2021 | Author: Recreation Law | Filed under: Assumption of the Risk, Ski Area, Skiing / Snow Boarding, Wyoming | Tags: assumption of the risk, Inherent Risk, Jackson Hole Mountain Resort, skiing, WRSA, Wyoming, Wyoming Recreation Safety Act | 1 Comment

Thomas A. Standish, IV; Meghan Keiter, Plaintiffs – Appellants,

Jackson Hole Mountain Resort Corporation, Defendant-Appellees.

No. 20-8045

United States Court of Appeals, Tenth Circuit

May 14, 2021

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WYOMING (D.C. NO. 1:19-cv-00004-KHR)

Gary L. Shockey, Gary Shockey Law, Casper, Wyoming, for Appellants.

James K. Lubing (Nathan D. Rectanus with him on the brief), Lubing Law Group, Jackson, Wyoming, for Appellee.

Before TYMKOVICH, KELLY, and PHILLIPS, Circuit Judges.

TYMKOVICH, Chief Judge.

I. Background

In January 2017, California residents Thomas Standish and his then-fiancee, Megan Keiter, traveled to Jackson Hole Mountain Resort as part of a “bucket list” ski trip. From January 8 through 10-the three days prior to Standish’s arrival-Jackson Hole had received about 27 inches of new snow, and on the morning of January 11, Jackson Hole received an additional 18 inches of snow. Over these four days, the mid-mountain depth of the snow increased from 56 to 80 inches.[ 1]

On January 11, the couple purchased ski passes for Jackson Hole. The backs of these “J Cards” bear language indicating that the pass-holder “acknowledges that participation in any and all winter recreation activities at [Jackson Hole], including . . . skiing . . . involves SUBSTANTIAL AND INHERENT RISKS, HAZARDS, AND DANGERS THAT MAY RESULT IN SERIOUS INJURY, DEATH or damages to property.” Aplt. App. 41. The couple first skied a few groomed runs. They then ventured down an off-piste run near the Thunder Chairlift line, with Standish-the more experienced skier-leading the way. “Off-piste” is a term for a ski run or area that is ungroomed and left in its natural state. See Roberts v. Jackson Hole Mountain Resort Corp., 884 F.3d 967, 970 (10th Cir. 2018). About halfway down the mountain, Standish’s right ski hit the top of a six-and-a-half-foot-tall tree stump that was covered with about two inches[ 2] of fresh snow. His ski came off on impact, and he broke multiple bones in his right leg.

In January of 2019, Standish and Keiter brought this diversity suit in the District of Wyoming against Jackson Hole, alleging negligence and loss of consortium, respectively. During discovery, the parties were unable to ascertain when, why, or by whom the tree had been cut. In a deposition, Jackson Hole’s risk safety and environmental manager agreed that the stump had been cut at some point in the past, but no individuals or departments he talked to had any recollection or knowledge of cutting that tree. When asked why it was cut in the way it had been-that is, over six feet high-the manager suggested “it had been cut down during the winter to mitigate a hazard, like the tree blowing over or growing in a particular way that may have been identified to be a hazard.” Aple. App. 63. In October 2019, the stump was cut down completely, apparently as a result of the accident and the ongoing litigation.

Jackson Hole moved for summary judgment, which the district court granted. The district court concluded that Wyoming law provided immunity from the inherent risks of skiing, including unmarked objects on ungroomed runs-even objects like trees that have been partially cut.

II. Analysis

Standish makes two arguments about why the district court erred in granting summary judgment. First, he contends that the question of whether a subsurface, cut tree in an off-piste area is an inherent risk of alpine skiing should have been submitted to a jury. Second, Standish argues the district court improperly considered inadmissible facts in granting summary judgment. We address each in turn.

A. Inherent Risk

1. Standard of Review

We review a district court’s grant of summary judgment de novo. Roberts, 884 F.3d at 971. Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

Because this diversity suit arises out of Wyoming, we “must ascertain and apply state law to reach the result the Wyoming Supreme Court would reach if faced with the same question.” Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000). In doing so, “we rely foremost on decisions of the Wyoming Supreme Court, and then on ‘other state court decisions, federal decisions, and the general weight and trend of authority.'” Roberts, 884 F.3d at 972 (quoting Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1100 (10th Cir. 2002)). We review the district court’s determination of state law de novo. Cooperman, 214 F.3d at 1164.

2. The Wyoming Recreation Safety Act

Common-law tort principles typically guide our analysis of personal-injury claims brought on the basis of negligence. When bringing a negligence claim, a plaintiff must sufficiently assert that “(1) the defendant owed the plaintiff a duty to conform to a specified standard of care; (2) the defendant breached the duty of care; (3) the breach proximately caused injury to the plaintiff; and (4) the injury is compensable by money damages.” Dimickv. Hopkinson, 422 P.3d 512, 521 (Wyo. 2018) (internal quotation marks omitted).

But in enacting the WRSA, the Wyoming legislature chose to insulate recreational providers from some types of personal-injury claims. In relevant part, the WRSA[ 3] provides that [a]ny person who takes part in any sport or recreational opportunity assumes the inherent risks in that sport or recreational opportunity, whether those risks are known or unknown, and is legally responsible for any and all damage, injury or death to himself or other persons or property that results from the inherent risks in that sport or recreational opportunity.

Wyo. Stat. Ann. § 1-1-123(a). And a recreational provider “is not required to eliminate, alter or control the inherent risks within the particular sport or recreational opportunity.” Wyo. Stat. Ann. § 1-1-123(b).

a. Duty Under the WRSA

The WRSA limits the first negligence element: duty. Specifically, the WRSA “codifies the common-law concept of primary assumption of the risk,” which limits the recreational provider’s duty to a participant. Roberts, 884 F.3d at 972; see also Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo. 1995) (“[T]he assumption-of-risk terminology [in the WRSA] is intended to limit the duty which a provider owes to a participant.”). “When primary assumption of the risk applies, as it does under the WRSA, ‘the legal result is that the defendant is simply relieved of the duty which would otherwise exist.'” Roberts, 884 F.3d at 972 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68, at 481 & n.lO (5th ed. 1984)). In other words, because the WRSA provides that a participant has assumed certain risks that are inherent to the activity, the recreational provider typically owes no duty for inherent risks of an activity. In sum, a recreational “provider has no duty to eliminate, alter, or control the inherent risks of an activity, and any person who chooses to take part in a sport or recreational opportunity assumes all inherent risks [that] are associated with that opportunity.” Halpern, 890 P.2d at 565.

The district court generally decides whether the defendant owed a duty as a matter of law, see Halpern, 890 P.2d at 565, but the jury typically decides whether a particular risk is an inherent one, see Beckwith v. Weber, 277 P.3d 713, 722 (Wyo. 2012). In the context of whether a hazard is an inherent risk, the “level of factual specificity required . . . will often but not always preclude summary judgment on the duty question.” Creel v. L &L, Inc., 287 P.3d 729, 737 (Wyo. 2012). So “when genuine issues of material fact exist, it is proper to present the issue to the jury of whether a risk is inherent to a particular activity.” Halpern, 890 P.2d at 566. But in the absence of genuine issues of material fact, “the district court may decide as a matter of law that the provider does not owe a duty to the participant.” Roberts, 884 F.3d at 973 (quoting Halpern, 890 P.2d at 566); see also Jackson Hole Mountain Resort Corp. v. Rohrman, 150 P.3d 167, 168 (Wyo. 2006) (“If the court can say that, given that evidence, this is an ‘inherent risk’ and reasonable minds cannot differ about that, then summary judgment is appropriate.”).

b. Inherent Risk

The central question here is whether the plaintiff’s injury was the result of an inherent risk of a particular activity. If the injury was caused by an inherent risk, then the recreational provider owes no duty to “eliminate, alter, or control it[, ]” and the entry of summary judgment is appropriate. Rohrman, 150 P.3d at 168.

The WRSA defines “inherent risk” as “those dangers or conditions which are characteristic of, intrinsic to, or an integral part of any sport or recreational opportunity.” Wyo. Stat. Ann. § 1-1-122; see also Cooperman, 214 F.3d at 1166 (discussing definitions of “characteristic,” “intrinsic,” and “integral”). But the WRSA-unlike some other states’ recreational liability statutes-does not list examples of inherent risks. Rather, “[w]hat an ‘inherent risk’ means in any given set of circumstances is a variable that the Wyoming Legislature included in the statute by design.” Muller v. Jackson Hole Mountain Resort, 139 P.3d 1162, 1166 (Wyo. 2006), opinion after certified question answered sub nom. Muller v. Jackson Hole Mountain Resort Corp., 210 Fed.Appx. 792 (10th Cir. 2006).

In order to determine what is an inherent risk under the WRSA, the Wyoming Supreme Court has explained a “reasonableness” inquiry should guide courts. Rohrman, 150 P.3d at 170. So, the “central concern … is what ‘reasonable persons’ will view as inherent risks.” Id. “[I]f reasonable minds cannot differ as to whether or not a given set of factual circumstances involve an ‘inherent risk’ of skiing (in this particular instance we are concerned with skiing, or fill in the blank as the case might be), then the protections of the [W]RSA apply, and the litigation of that controversy must come to an end.” Id.

The Wyoming Supreme Court has pointed to several sources of guidance for determining what reasonable persons would view as inherent risks of an activity. One is, of course, jury deliberations on the particular facts of a case. See Rohrman, 150 P.3d at 170. Others are safety experts and experienced skiers.[ 4]Id. But the sources most discussed by the Court in this context are analogous statutes from similarly-situated states. See Rohrman, 150 P.3d at 170-72; Muller, 139 P.3d at 1166-67. In Rohrman, the Court held that reference to analogous statutes-for example, from Colorado, New Mexico, and Utah-is “a meaningful source of guidance in explaining the inherent risks of skiing to any fact finder.” Rohrman, 150 P.3d at 172.

The explicit citation to these statutes, and the reference to other similar state statutes, is meant to be an expansive guide for courts considering the inherent risk question. For one, the texts of all three analogous state statutes included in Rohrman have non-exhaustive lists of inherent risks of skiing. Each of the three has broad language that includes, for example, trees and forest debris, subsurface conditions, and man-made structures. See Colo. Rev. Stat. § 33-44-103(3.5) (2021); N.M. Stat. § 24-15-10 (2021); Utah Code Ann. § 78B-4-402 (2021). For another, the court expressly did not constrain itself to these lists, stating “those statutes are not the exclusive source of guidance and the factual variations are, in some senses, infinite.” Rohrman, 150 P.3d at 172.[ 5]

In particular, the court’s reference to analogous statutes is significant at the summary judgment stage. In situations with novel or contested facts, of course, the question of reasonableness-that is, whether reasonable minds cannot differ over what is an inherent risk-is appropriate for consideration by the fact-finder, not for determination as a matter of law by the court. But when there are no genuine disputes of material fact, the Wyoming Supreme Court has explicitly held that “[u]nder Wyoming’s statutory construct, which is much broader than that of Colorado, such items as those included in Colorado’s statute may, as a matter of law, be inherent risks of the recreational activity of skiing.” Muller, 139 P.3d at 1167 (emphasis added). “[I]n such cases[, ] a trial court may grant a motion to dismiss or a motion for summary judgment based on the [W]RSA.” Id. In other words, a court may look to the enumerated inherent risks in Colorado’s statute to hold that a particular risk is an inherent one as a matter of law. 3. The Risk to Standish

The district court determined that skiing into an unmarked six-and-a-half-foot-tall tree on an off-piste run-which had been previously altered by Jackson Hole and which was submerged and made invisible by recent, heavy snow fall-was an inherent risk of skiing. We agree with both the framing of the inherent risk and the district court’s conclusion.

With regard to the risk’s framing, we have previously acknowledged “we can not look at the risk in a vacuum.” Cooperman, 214 F.3d at 1167. Rather, “we must evaluate the risk at the greatest level of specificity permitted by the factual record.” Id. Here, the operative facts are undisputed. The mountain had received 45 inches of fresh snow in the four days prior to the accident. The accident took place in an off-piste-and therefore ungroomed-area. Standish’s injury was caused by a collision with the top of the stump, which was lightly covered with the fresh snow and thus not visible to Standish. The stump had been cut to a height of six-and-a-half feet at some point in the past to mitigate some problem. The district court’s inherent-risk framing did not employ any disputed facts and accurately captures the facts of the case. Neither party appears to contest this framing on appeal. We therefore adopt this framing of the risk.

With this specific factual scenario in mind, we conclude that encountering a snow-covered stump in an ungroomed area is an inherent risk of alpine skiing. Everyone familiar with the sight of the intertwining runs of a ski area knows that cutting and otherwise managing trees is necessary for the runs’ creation and upkeep. The vast majority of ski-able terrain simply could not exist in the first instance without the ministrations of sawyers and forest managers. And the forested setting of ski areas means that trees may sometimes fall or otherwise present hazards. As the risk safety and environmental manager for Jackson Hole indicated in his deposition, trees can be altered or “removed for various reasons.” Aple. App. 63. These can include creating more space for skiing in a particular run or glade or mitigating a hazard, such as a “tree blowing over or growing in a particular way that may have been identified to be a hazard.” Aple. App. 63. The height at which the tree in this case was cut could have been a function of a high snow-level during winter, or it could have resulted from a decision to cut just below a particular hazard in any season (i.e., the tree broke or became unstable above that height). Whatever the reason, the ability to act to mitigate hazards and cut trees that pose a risk to skiers-or to create new runs or vary the terrain-is essential to effectively managing a ski area.

Moreover, this accident occurred in an off-piste area, in which unmarked obstacles are frequent and inevitable. “[W]e cannot ignore the nature of the run on which he encountered [the stump] and the inherent risks that run presents.” Roberts, 884 F.3d at 976 (discussing an accident in an off-piste area). And a changing level of the snow-which here was, by chance, just enough to render the stump invisible-is another inherent risk of skiing. Variable snow conditions are intrinsic to the mountainous setting of ski resorts in the American West. See, e.g., Kopeikin v. Moonlight Basin Mgmt., LLC, 981 F.Supp.2d 936, 945 (D. Mont. 2013) (“Skiing presents a multitude of dangers and hazards. Notwithstanding an operator’s efforts to tame it, skiing takes place on essentially wild terrain, on a mighty mountain, with fluctuation in weather and snow conditions that constantly change.” (internal quotation marks omitted)). Consequently, all reasonable people understand that the combination of encountering the remnant stumps of forest-management practices and of changing snow levels at a ski area is an inherent risk of alpine skiing.

Furthermore, the Wyoming Supreme Court has explicitly held that because the WRSA is a broader statutory scheme than Colorado’s analogous law, “such items as those included in Colorado’s statute may, as a matter of law, be inherent risks of the recreational activity of skiing.” Muller, 139 P.3d at 1167 (emphasis added). Colorado’s statute expressly includes stumps-whether snow-covered or not-as inherent risks. See Colo. Rev. Stat. § 33-44-103(3.5) (‘”Inherent dangers and risks of skiing’ means those dangers or conditions that are part of the sport of skiing, including . . . surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects . . . .”).[ 6] And other states include subsurface stumps or forest debris as inherent risks in their analogous statutes, including Utah, see Utah Code Ann. § 78B-4-402 (stumps); New Mexico, see N.M. Stat. § 24-15-10 (“trees or other forms of forest growth or debris”); Idaho, see Idaho Code § 6-1106 (2021) (same); and Montana, see Mont. Code Ann. § 23-2-702 (2021) (stumps).[ 7]

Similarly, Colorado’s statute-as well as, for example, Utah’s, Idaho’s, and Montana’s-also includes changing snow conditions and levels as inherent risks. See Colo. Rev. Stat. § 33-44-103; Mont. Code Ann. § 23-2-702; Utah Code § 78B-4-402; Idaho Code § 6-1106; see also Fleury v. IntraWest Winter Park Operations Corp., 372 P.3d 349, 351 (Colo. 2016) (holding an in-bounds avalanche qualifies as an inherent risk of skiing because it is a “changing condition” of snow). The depth of the snow in this case is as integral to the accident as the height of the stump. Any less snow, and the stump would have been visible; any more, and Standish would have passed over the top unharmed. Given that there are no genuine disputes of material facts in this case, holding that a snow-covered stump in an off-piste area is an inherent risk of alpine skiing comports with Wyoming Supreme Court precedent.

This conclusion aligns with both our precedent and public policy. In Cooperman, a Tenth Circuit panel considered whether a slipping saddle that was loosely cinched by the recreational provider is an inherent risk of horseback riding. See Cooperman, 214 F.3d at 1168. Cinching a saddle, explained the panel, “is done by hand, and not with scientific precision,” so “a provider must make a judgment call as to how tight or loose to cinch the saddle.” Id. “This imprecision in the cinching of the saddle is characteristic or typical of and therefore inherent in the sport of horseback riding.” Id. (internal quotation marks omitted). The same is true for managing forests. Ski-area managers must make judgment calls about whether and how to cut a tree that has become a hazard. In winter, the height at which a tree is cut is as imprecise and judgment-based as cinching a saddle: it can be cut too tall or too short, and the risk of its being covered lightly with the next snow fall-or being exposed by snow melt-is characteristic of ever-changing mountain conditions at ski areas. So, too, in the summer: a tree could be cut at any height to mitigate a hazard, and a forest manager could decide to leave the stump remnant for a variety of reasons (e.g., impossibility of removal based on terrain, concerns about slope destabilization or damage, or ecological concerns about surrounding flora or fauna). Forest management, just as the saddle-cinching in Cooperman, is based on best practices-not exact practices-and the resulting risks are inherent to skiing in a forested ski area.

In a more recent case, this court held that encountering subsurface boulders-and the gaps between them-in an off-piste ski area in changing snow conditions is an inherent risk of skiing. See Roberts, 884 F.3d at 976. The panel in Roberts noted that a “critical distinction has emerged in the case law between a provider’s failure to control inherent risks (which is no longer actionable)[] and actions that affirmatively enhance existing risks (which remain actionable).” Id. at 975. Because subsurface boulders are an inherent risk of skiing in an off-piste area, and because Jackson Hole had done nothing to affirmatively enhance the existing risk of the boulders, the panel reasoned, the WRSA limited Jackson Hole’s liability, and summary judgment was appropriate. See id. at 977.

To reach this conclusion, the Roberts panel relied on Creel and Dunbar. See id. at 975-76. The outcomes in both Creel and Dunbar rest on the actions of the employees or agents of the recreational provider affirmatively enhancing existing risks. In Creel, the Wyoming Supreme Court held that the danger of being struck with a golf ball is an inherent risk of attending a golf tournament-but the employee who encouraged the golfer to hit despite the golfer’s concern about spectators in the way affirmatively enhanced the existing risk of stray golf balls. See Creel, 287 P.3d at 739. In Dunbar, the Tenth Circuit panel concluded encountering a half-pipe in a terrain park is an inherent risk of skiing-but the “delphic statements” of the employee on how to safely exit the terrain park affirmatively enhanced the existing risks posed by the terrain park features. Dunbar v. Jackson Hole Mountain Resort Corp., 392 F.3d 1145, 1153 (10th Cir. 2004).

Not so here. Had a Jackson Hole employee represented to Standish that this particular run was groomed or free of obstacles, Jackson Hole might have created a jury question that the resort somehow enhanced the risk of an accident. See, e.g., Roberts, 884 F.3d at 976 (The plaintiff “was not directed to [the area where the accident occurred] by an employee offering ‘delphic statements’ about its safety; in fact advanced skiers in search of fresh untracked and unconsolidated powder are attracted to off-piste terrain . . . because it is ungroomed, untamed, and provided the types of natural obstacles that distinguish such runs from those frequented by less talented skiers.” (quoting Dunbar, 392 F.3d at 1153; emphasis in original)).

But there are no facts in this case to suggest anything of the sort. “[T]here is a difference between the consequences of conduct chosen by [the skier], and risks that are inherent to that choice.” Dunbar, 392 F.3d at 1151. Standish knew that unmarked obstacles could and would exist in this off-piste area, and he chose to proceed down this more-advanced run. Nor did Standish present any evidence that cutting the tree at this particular height affirmatively enhanced the risk or took it “outside the realm of inherent risk.” Creel, 287 P.3d at 737. What made the stump’s height hazardous was the snow level on January 11-and changing snow levels are undoubtedly an inherent risk of mountain recreation. Consequently, the district court properly found that Jackson Hole did not enhance the already-existing risk of the stump.

The outcome in Roberts further supports our decision here. In that case, Roberts’s expert-who had concluded that subsurface boulders were not an inherent risk of off-piste skiing-“put the cart before the horse” by faulting Jackson Hole for not placing warning signs above the area. Roberts, 884 F.3d at 976-77′. But this targeted the element of breach without establishing the existence of a duty in the first place. Id. at 977. Conclusory statements that the boulders that had caused Roberts’s injuries were not inherent risks of skiing were insufficient to preclude summary judgment. Id.

The same is true of the expert testimony Standish presents. As the district court noted, Standish’s expert addressed how Jackson Hole breached the duty it supposedly owed Standish by not removing the remnant stump. But a snow- covered stump is itself an inherent risk of alpine skiing, and the expert’s testimony does not address what action by Jackson Hole takes the stump “outside the realm of inherent risk.” Creel, 287 P.3d at 737. The expert’s claim that “[t]he act of removing the top part of the tree was an affirmative act by the Resort which created the risk encountered by Mr. Standish” is unavailing. Aplt. App. 33. If that were true, then every tree cut by Jackson Hole’s forest managers would present a non-inherent risk to skiing-depending on the snow level on a particular day. And the expert’s claim that Jackson Hole’s “failure to finish the job . . . substantially enhanced the risk created by the Resort” improperly imposes a duty on Jackson Hole to remove completely the stumps made by its forest management. Neither the Wyoming legislature nor any court has imposed such a duty on ski areas. And given the Wyoming Supreme Court’s express embrace of the inherent risks in Colorado’s statute, including stumps, the expert testimony fails to preclude summary judgment.[ 8]

This conclusion also aligns with public policy. To hold that Jackson Hole has a duty to cut trees to a particular level or to remove stumps entirely would disincentivize recreational managers from attempting to mitigate hazards for their guests. If a fallen tree in an off-piste area is an inherent hazard of skiing, and cutting it off below the break creates a non-inherent risk, a ski area manager might decide to simply leave the fallen tree so as not to potentially incur liability. The WRSA is meant to limit the liability of recreational providers so that they can, in their judgment, both manage and offer sometimes-risky recreational opportunities.

Moreover, the standard that would arise from the opposite conclusion here would be untenable. Suppose a tree falls in an off-piste ski area during the winter and needs to be cut. The tree is cut to just above the current snow level, 70 inches. For the next week, the snow melts, leaving about 10 inches of the stump exposed and clearly visible to skiers. But then 11 inches of fresh snow falls, just covering the exposed stump. To conclude that the ski area is then liable for a skier’s collision with that stump would expose the ski area to liability the WRSA is clearly meant to limit. In other words, to hold that the WRSA does not preclude liability in this case would impose a duty on ski areas to never allow a tree stump be the same height as the current level of the snow-even in off-piste areas. We decline to reach such a conclusion.

* * *

B. Consideration of Inadmissible Facts

Standish also argues that, in evaluating the motion for summary judgment, the district court improperly considered facts that would be inadmissible before a jury. His argument is based on the district court’s discussion of the factual context of analogous and precedential cases-including, for example, Creel, Dunbar, Cooperman, and Roberts. See Aplt. Br. at 12-14.

While we review a district court’s evidentiary rulings for abuse of discretion, see, e.g., Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1268 (10th Cir. 1998), we review a district court’s findings of law and entry of summary judgment de novo. See Roberts, 884 F.3d at 971. It is true that a district court may consider only admissible evidence from a record in ruling on a motion for summary judgment. See Johnson v. Weld Cty., Colo., 594 F.3d 1202, 1209 (10th Cir. 2010) (“[I]t is well settled in this circuit that we can consider only admissible evidence in reviewing an order granting summary judgment.” (quoting Wright-Simmons, 155 F.3d at 1268)).

But in discussing these cases, the district court here was not making an evidentiary ruling about whether the facts of cases like Creel and Cooperman would be presented to a jury at trial. Rather, it was making a determination of law. In discussing the facts of these analogous cases, the district court was engaging in classic legal analysis: comparing the facts of Standish’s case with the factual context of other inherent-risk cases under the WRSA. See, e.g., Aplt. App. 54 (discussing the facts of Roberts to evaluate Standish’s claims); Aplt. App. 58 (discussing Dunbar to determine Standish’s claim of risk-creation).

To have erred here, the district court would have had to consider facts about Standish ‘s case that were not in the record or would have been otherwise inadmissible before a jury. The district court did not do so, and we reject Standish’s argument.

III. Conclusion

Thomas Standish’s injuries from his accident were severe and painful. This case provides a somber reminder of skiing’s risks to those who enjoy the sport. But Wyoming law does not provide recourse against Jackson Hole for Standish’s accident. We therefore AFFIRM the district court’s entry of summary judgment.

———

Notes:

[ 1] Though the numbers do not add up precisely, this fact is undisputed. The discrepancy may be due to the variance in measurements between lift-base depth and mid-mountain depth, as well as other environmental factors like wind.

[ 2] The district court came to this number by subtracting the height of the tree (78 inches) from the approximate depth of snow (80 inches). Neither party contests this finding on appeal.

[ 3] On July 1, 2017, Wyoming’s Ski Safety Act went into effect. See Wyo. Stat. Ann. § 1-1-123.2 (2020). This Act takes ski-area skiing out of the purview of the WRSA. In other words, now the Ski Safety Act, rather than the WRSA, sets out the statutory scheme for actions based on skiing at a ski area. But as the district court found, the parties in this case agree the Ski Safety Act is inapplicable to this case because the accident occurred before the law became effective.

[ 4] Though the WRSA is not limited to skiing, many of the precedential cases in this context are results of skiing accidents. Any reference in this opinion to skiing, as opposed to other recreational activities, is merely a reflection of this body of precedent and the particular facts of this case.

[ 5] Though Wyoming’s recent Ski Safety Act is not applicable to this case, see note 3, the Wyoming legislature, in passing the Act, has since provided a definition of “inherent risks” of skiing in a ski area. In doing so, Wyoming’s law now more closely resembles these analogous state statutes. The Ski Safety Act provides that “Inherent risk” with regard to skiing in a ski area means those dangers or conditions which are part of the sport of skiing, including: (A) Changing weather conditions; (B) Falling or surface snow conditions, whether natural or man-made, as they exist or change; (C) Surface or subsurface conditions including bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, trees or other natural objects; (D) Collisions or impacts with natural objects such as the objects specified in subparagraph (C) of this paragraph including encounters with wildlife; (E) Impact with ski lift towers, signs, posts, fences or enclosures, hydrants, water pipes or other man-made structures and their components . . .; (F) Variations in steepness or terrain, whether natural or as a result of ski trail or feature design, or snowmaking or grooming operations such as roads, freestyle terrain, jumps and catwalks or other terrain modifications; and (G) Collisions with other skiers.

Wyo. Stat. Ann. § 1-1-123.2 (2020) (emphasis added).

[ 6] While the other items in this list are all generally natural, the plain meaning of stump indicates a tree that has been cut. See, e.g., Stump, Merriam-Webster, https://www.merriam-webster.com/dictionary/stump (defining “stump” as “the part of a plant and especially a tree remaining attached to the root after the trunk is cut”); Stump, Oxford English Dictionary, https://www.oed.com/view/ Entry/192144 (defining “stump” as “[t]he portion of the trunk of a felled tree that remains fixed in the ground; also, a standing tree-trunk from which the upper part and the branches have been cut or broken off). And the remainder of Colorado’s inherent-risks list includes man-made items, including “impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components,” and “terrain modifications.” Colo. Rev. Stat. § 33-44-103(3.5).

[ 7] So, too, does Wyoming’s new Ski Safety Act, which went into effect about six months after Standish’s accident. See Wyo. Stat. Ann. § 1-1-123.2 (including “stumps” as inherent risks of skiing).

[ 8] Standish’s argument that the expert represented the views of at least “one reasonable person” and thus precluded summary judgment, is similarly unavailing. The reasonableness inquiry to determine whether something is an inherent risk of an activity requires, of course, consideration of the inherent risk itself. But, again, Standish’s expert does not discuss or espouse any non-conclusory opinion on the inherent risk of a subsurface stump in an off-piste area; rather, his conclusion is based on Jackson Hole’s failure to remove it. This merely assumes that such a stump is not an inherent risk. Further, the mere existence of a contrary expert opinion-particularly a conclusory expert opinion-does not preclude summary judgment. See Roberts, 884 F.3d at 977.

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

Posted: May 18, 2021 | Author: Recreation Law | Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest | Leave a comment

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.

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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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South Dakota in Federal District Court decision seems to allow a release to stop the claims for a minor.

Posted: October 19, 2020 | Author: Recreation Law | Filed under: Assumption of the Risk, Risk Management, Snow Tubing, South Dakota | Tags: appreciated, assumption of the risk, bottom, Careless, Collisions, deliberate, depo, descended, descent, genuine, Gross negligence, Guests, Negligence, nonmoving, Reckless, recommends, Release, Resort, Slope, slower, Snow Tubbing, State of Mind, station, tear, top, Tubbing, tube, tubers, Wanton, Willful and Wanton | 2 Comments

Release was effective in stopping ordinary negligence claims; however, the gross negligence claims were allowed to continue.

Reed v. Union Resort, LLC, 2018 U.S. Dist. LEXIS 225856, 2018 WL 8332583

State: South Dakota, United States District Court for the District of South Dakota, Western Division

Plaintiff: Brad Reed, Individually and as Joint Limited Conservators of I.R., a Minor; and Tara Reed, Individually and as Joint Limited Conservators of I.R., a Minor

Defendant: Union Resort, LLC, dba Mystic Miner

Plaintiff Claims: negligence and gross negligence

Defendant Defenses: Release

Holding: For both plaintiff and defendant, but proceeding to trial

Year: 2018

Summary

The minor child was injured on a tubing hill when her tube stopped in the middle of the hill, and she was hit and injured by her brother coming after her. The release the parents signed stopped the ordinary negligence claim but under South Dakota, law did not stop a claim for gross negligence.

There was no discussion in the decision as to whether the release stopped the claims of the minor child, the injured plaintiff. It just seemed to be taken for granted by the court, or at least not argued by the plaintiffs.

Facts

On March 13, 2015, Brad and Tara Reed brought their children to the defendant’s resort near Lead, South Dakota, for an afternoon of recreational snow tubing.1 The resort was owned and operated by Union Resort, LLC, dba Mystic Miner. Among the Reeds’ children with them that day was seven-year-old I.R. Accompanying the Reeds were another couple and Alex, a social worker from the Philippines.

Upon arriving shortly before noon, the Reed party entered the lodge area where customers are required to check in and purchase admission tickets for the resort. The Reeds purchased snow tubing day passes for themselves and their children, including I.R. As a condition of allowing I.R. to use the resort, Union required the Reeds to agree to a written release of liability. The Reeds signed the release and printed the names of each of their children, including I.R., as participants.

The Reeds understood the document was a release of liability agreement and that, by signing, they would be relinquishing certain unspecified rights. They did not ask any questions about the release. The release informed resort participants that tubing activities are extremely hazardous and can result in personal injury. The Reeds understood that tubing carried with it a degree of risk, including risk of trauma to the head, and that I.R. would be exposed to this risk.

After signing the release and paying the admission fee, the Reeds and their kids received individual tickets for the tube park. Those tickets included additional warnings.

At the resort, there are numerous bright red signs that provide instructions and warnings to participants. Among the messages on some of the signs was a warning that collisions with other tubers was one of the dangers of tubing. Other signs instructed the tubers to follow the attendant’s instructions and to wait for the attendant’s signal before starting [down the tube run]. The Reeds do not recall whether they saw or read any of these signs.

The Reeds were directed to select tubes from the resort’s selection of tubes, which they did. Defendant had approximately 50 to 70 tubes in inventory at the time, but there is no evidence how many of these tubes had already been selected by prior guests. No employee of defendant selected the tubes for the Reeds. Several defendant employees testified at their depositions that it was a practice at the resort to leave tubes with tears in the bottoms in circulation for guests to use. The employees explained that such tubes were slower and slower equated to safer in their minds.

During the Reeds’ stay at the resort, they went down the tube runs approximately 15 to 20 times. Two of the four tube runs at the resort were open that day. During the Reeds’ runs, there were two defendant employees at the bottom of the tube runs assisting guests with the tow rope (which towed guests to the top of the run).

On approximately two of the Reeds’ 15-20 tubing runs, there was a young man at the top of the tube runs who also appeared to be a resort employee with a radio in his possession. However, the young man never monitored the tube runs, never gave instructions to tubers, and never staged tubers going down the tube runs. “Staging” means controlling the entry of guests onto the tube runs to ensure that the prior tuber has finished the run and cleared the area before the next tuber is allowed to begin his or her descent. There was no staging and, instead, tubers decided themselves when to begin their descent, a situation Brad Reed described as a “free-for-all.”

At approximately 2 p.m., the Reeds decided to take one last run down the tube runs before leaving the resort. Up to this point, the Reeds had experienced no concerns or incidents. Up to this final run, I.R. had always completed her run down the slope as part of a group or with one of her parents. On the final run, she asked to be allowed to go down the tube run by herself, to which her parents agreed. Mrs. Reed told I.R. they would go down the run together, parallel to each other in each of the two open tube runs. At this point, Alex was directly behind I.R. in line for the same tube lane. Mr. Reed was behind Alex in the same line.

Once both lanes were clear, Mrs. Reed and I.R. began their descents. Mrs. Reed went all the way down the run, but I.R.’s tube stopped approximately 3/4 of the way down the slope. While I.R. was stopped, Alex began her descent before I.R. cleared the lane. When Alex’s tube reached I.R.’s tube, they collided. No defendant employee told Alex to begin her descent, but no defendant employee was present at the top of the run to tell her, instruct her, or prevent her from beginning her descent until I.R. cleared the lane.

From the top of the slope, Mr. Reed testified Alex should have been able to see I.R. had not cleared the lane had Alex been paying attention. Mr. Reed himself was able to observe the collision from his vantage point at the top of the slope.

After the accident, the Reeds observed an approximately 8-inch hole in the bottom of I.R.’s tube that had filled with snow. Defendant asserts it was its policy to stow the tubes under the deck each night and to pull them out the next day for guests’ use. Defendant asserts employees were directed to observe the tubes for significant tears or defects and to remove defective tubes during this process. However, several defendant employees testified they left tubes with tears in their bottoms in rotation for guest use because the tears would slow the tuber down as they descended the slope. Employees believed a slower descent was a safer descent.

If a lightweight child descended the slope with a tube with a tear in it, sometimes the tube would stop mid-way down the slope and a defendant employee would have to walk up the slope to retrieve the child. In such an instance, the defendant employee at the bottom of the slope would radio the employee at the top and tell them to stop sending guests down the slope until the child was retrieved and taken to the bottom.

No photograph was taken of I.R.’s tube at the beginning of the day, after the accident, or at any other time on the day of the accident. It is unknown if the tear in the bottom of her tube was there from the start of the day or whether the tear occurred during the Reeds’ use of the tube that day. The Reeds mixed and mingled the various tubes they checked out, so several members of the Reeds’ group could have used the accident tube at various times of the day.

The accident tube was the only tube checked out by the Reed group that had a tear in it. The Reeds did not notice the tear until after I.R.’s injury. The Reeds did not inform anyone at the resort about the tear in the tube after the accident occurred. There is no evidence that any defendant employee had specific knowledge that the Reeds had checked out a tube with a tear in it on the day of the accident, though defendant employees had general knowledge that such tubes were often retained in inventory because they were perceived to be “safer” because they were slower.

From the beginning of the 2010-11 season through the end of the 2014-15 season, defendant had incident reports of 17 collisions of tubers. During that same time frame, there were 72 total incident reports.3 Several of these collisions between tubers occurred within a few weeks and, in two examples, a few days, of I.R.’s collision. Specifically, there were 5 incident reports involving collisions between tubers going down the tube lane between December 30, 2014, and February 27, 2015. None of defendant’s incident reports record whether a hole in a tube contributed to the incident.

Defendant maintains that it had a proper protocol of having at least one employee at the top of the tube run and one employee at the bottom of the tube run at all times. The employee at the top of the tube run was supposed to “stage” the tubers going down. The employee at the bottom of the tube run would retrieve items lost by tubers going down the slope (hats, mittens, etc.) and also retrieve guests whose tubes stopped without fully descending the slope.

The Reeds assert defendant was chronically understaffed and that defendant made a deliberate decision not to station an employee at the top of the tube run the day of I.R.’s accident. Defendant asserts the Reeds have no evidence to support the assertion that the decision not to station an employee at the top of the tube run was a deliberate decision.

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

The plaintiff’s conceded that the release barred their claims for negligence, the first count in their complaint. That left the issue of whether the release barred their claims for gross negligence and whether they had pled enough facts to support a gross negligence claim.

Gross negligence under South Dakota law is the same as willful and wanton conduct:

Under South Dakota law, the phrase “gross negligence” is synonymous with the phrase “willful and wanton misconduct.” Both phrases refer “to a category of tort that is different in kind and characteristics than negligence.” Negligence occurs when one acts with an “unreasonable risk of harm to another.” Willful and wanton misconduct requires a risk of harm that is “substantially greater than that which is necessary to make the conduct negligent.” The threatened harm “must be an easily perceptible danger of death or substantial physical harm.”

The major difference between ordinary negligence and gross negligence is the mental state of the defendant.

In addition, proof of a negligence claim focuses on the ordinary standard of care, while a gross negligence claim focuses on the defendant’s mental state. A defendant acts willfully and wantonly when it knows or has reason to know at the time of its actions of the dire risk and proceeds without concern for the safety of others. The standard does not require proof of intent to harm, but it does “partake to some appreciable extent … of the nature of a deliberate and intentional wrong.” Gross negligence requires “an affirmatively reckless state of mind.” There must be “a conscious realization that a serious physical injury was a probable, as distinguished from a possible (ordinary negligence), result of such conduct.”

That creates a two-step test to determine if the defendant was grossly negligent.

Summarizing the above case law, gross negligence is distinguished from ordinary negligence by two factors. The risk of harm must be greater for gross negligence—whereas under ordinary negligence, the risk of harm can be anything from negligible harm to death, the risk of harm for gross negligence must be death or serious harm. Secondly, the likelihood that harm will come about, phrased in terms of the defendant’s state of mind, must be greater. For example, if there is a 10 percent chance some harm will happen and the defendant fails to take steps to ensure that harm does not come about, he is merely negligent. If there is an 85 percent chance serious harm or death will happen and the defendant fails to take steps to ensure the harm does not occur, he has acted willfully and wantonly or with gross negligence.

The court’s analysis of the chance of the harm occurring is a way of looking at the differences between ordinary and gross negligence that I have never seen before.

The court looked at the facts as presented by both sides and found both lacking the information the court felt would prove the plaintiff’s case. However, the court made this statement.

Under the law of gross negligence, South Dakota has recognized a plaintiff will rarely have direct evidence of the defendant’s state of mind. Rather, state of mind must be inferred from the circumstances. Id. Also, under the law of summary judgment, all inferences from the facts must be made in favor of the nonmoving party, Both sources of law, then, support taking the Reeds’ view of the inference to be drawn from the fact that defendant was chronically understaffed and did not have an employee stationed at the top of the tube run at the time of I.R.’s accident.

So, with the inferences created by the plaintiffs about the state of mind of the tubing hill, the court held that there was enough information plead to allow the gross negligence claim to continue.

The court then looked at the assumption of the risk argument made by the defendant. There was no case law in South Dakota stating that assumption of the risk was a defense to gross negligence, so the court held that assumption of the risk would not stop the gross negligence claim.

So Now What?

What did not arise in this case is whether the release stopped the claims of the minor child. The case was captioned as the parents suing on behalf of their minor child. In that regard, the release would bar the claims of the parents. However, this is a different way of suing on behalf of a minor, not away normally done in most states any more.

Also, this is a decision by a Federal District Court applying South Dakota law so, whether a not a release stops a minor’s claims is probably still up in the air until the South Dakota Supreme Court decides the issue.

However, it is a decision to lean on if you have participants who are minors in your program.

The other issues are classic situations where the defendant looks at a situation one way as a positive for patrons but the injured patron is able to turn the situation around and use it as a club against the defendant. Torn tubes were regarded by the defendant as good because they were slower than the other tubes. However, a torn tube is not a product that is 100%, in the condition it was received from the manufacturer. It was a defective product. So, the plaintiff was able to show the defendant was derelict in using them.

If they placed the tubes in a different location with a sign that said, slower tubes it might have been helpful.

What do you think? Leave a comment.

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

tube, tubers, resort, top, slope, guests, collisions, tear, bottom, wanton, deliberate, recommends, descent, genuine, depo, reckless, station, appreciated, descended, nonmoving, slower

In the future, if you are contacted by a member of law enforcement or the Colorado Avalanche Information Center about your backcountry activities, invoke your 5th amendment constitutional right to remain silent and say nothing.

Posted: October 14, 2020 | Author: Recreation Law | Filed under: Avalanche, Colorado, Skiing / Snow Boarding | Tags: avalanche, Eisenhower Tunnel, Go Fund Me, I-70, Reckless Endangerment, Summit County | 1 Comment

District Attorney is chasing to men who possibly set off an avalanche. District Attorney’s actions will probably kill more people.

What you say may be sued against you in court, as the case with Tyler DeWitt of Silverthorne and Evan Hannibal of Vail. Read the articles listed below to get various facts about what happened. But basically, they were backcountry skiing and set off an avalanche. The debris filled cover a road and took out a remote avalanche triggering device.

“Very large avalanche” buries road near Eisenhower Tunnel

2 men cited for reckless endangerment after triggering avalanche near Eisenhower Tunnel

Because of this, the Summit County District Attorney Charged the two men with Reckless Endangerment. Under Colorado law Reckless Endangerment is:

Colorado Statutes

Title 18. CRIMINAL CODE

Article 3. Offenses Against the Person

Part 2. ASSAULTS

Current through Chapter 326 of the 2020 Legislative Session

§ 18-3-208. Reckless endangerment

A person who recklessly engages in conduct which creates a substantial risk of serious bodily injury to another person commits reckless endangerment, which is a class 3 misdemeanor.

Cite as C.R.S. § 18-3-208

A class three misdemeanor will not ruin your life, but it will make it miserable. Worse, the DA is asking for restitution for the damage done to clear the road and the avalanche triggering device in the amount of $168,000. How many working skiers and boarders in the backcountry have that amount of money sitting around? That too will assist in their running their lives.

The charges and the restitution will not kill anyone. However, Avalanche reporting and research will come to an end. Who knows what DA will decide they don’t like backcountry skiers and just start thumbing through Colorado Avalanche Information Center (CAIC) reports looking for ways to eliminate backcountry skiing and boarding?

This is NOT the fault of the CAIC. As a state agency, they have no way to protect the reports that they receive and must turn them over to any other state agency, including district attorneys.

This is also sad; the backcountry ski community has raised hundreds of thousands of dollars for CAIC over the years and had a great relationship with the CAIC. The CAIC is a great organization with awesome people, some who are the best in the world at what they do.

But I’m not going to jail to help!

I keep trying to figure out the motivation for the District Attorney’s actions. The chance of getting any money out of these two men is zero. Does he want to keep people from going out in the backcountry? Probably. No doubt there is going to be a lot of Search & Rescue this winter based on sales of backcountry equipment. However, idiots in the backcountry is not a new thing.

Instead of wasting the time, money, and resources to prosecute these two men, which will not stop idiots in the backcountry, why not try to educate them.

Besides, any expert who is going to get on the stand and say that these two triggered the avalanche is possibly wrong. Even with the men saying on tape, they started the slide; they could still be wrong.

If you would like to contribute money to support Evan Hannibal’s attempt to raise money for an attorney, go here: Facing Criminal Charges in the Backcountry.

Do Something

Contribute to Evan Hannibal’s Go Fund Me: Facing Criminal Charges in the Backcountry.

Contact the Fifth judicial District (Summit County) and let the DA know they are not solving problems but creating more: https://www.da5.us/reach-our-offices/summit-county/

Contact Friends of the Colorado Avalanche Information Center and tell them to get a bill in the state legislature that would provide immunity for reporting to backcountry skiers: https://www.avalanche.state.co.us/contact/

Contact the Summit Daily News and express your opinion about how stupid and dangerous this is on the part of the District Attorney: https://www.summitdaily.com/opinion/letters-to-the-editor/

Contact the Denver Post and do the same: https://www.denverpost.com/submit-letter/

Show up at the criminal hearings and support these two men. Be respectful of the court, the judge and court personnel have nothing to do with this mess. It was handed to them by the District Attorney. Be considerate, respectful, quiet, turn off your phones and sit quietly, but be there.

What do you think? Leave a comment.

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

@RecreationLaw #SkiAreaLaw #Avalanche @FriendsofCAIC @COAvalancheInfo #ClimateChange #ProtectOurWinters #SaveYourSeason #RecLaw #RecreationLaw

Reed v. Union Resort, LLC, 2018 U.S. Dist. LEXIS 225856, 2018 WL 8332583

Posted: October 7, 2020 | Author: Recreation Law | Filed under: Release (pre-injury contract not to sue), Snow Tubing, South Dakota | Tags: appreciated, assumption of the risk, bottom, Collisions, deliberate, depo, descended, descent, genuine, Guests, nonmoving, Reckless, recommends, Release, Resort, Slope, Snow Tubbing, station, tear, top, Tubbing, tube, tubers, Waiver, Wanton | Leave a comment

Reed v. Union Resort, LLC, 2018 U.S. Dist. LEXIS 225856, 2018 WL 8332583

United States District Court for the District of South Dakota, Western Division

November 15, 2018, Decided; November 15, 2018, Filed

5:17-CV-05047-JLV

Reporter

Brad Reed, Individually and as Joint Limited Conservators of I.R., a Minor; and Tara Reed, Individually and as Joint Limited Conservators of I.R., a Minor; Plaintiffs, vs. Union Resort, LLC, dba Mystic Miner, Defendant.

Subsequent History: Objection overruled by, Adopted by, Summary judgment granted by, in part, Summary judgment denied by, in part Reed v. Union Resort, LLC, 2019 U.S. Dist. LEXIS 49327 (D.S.D., Mar. 25, 2019)

Counsel: [*1] For Brad Reed, Individually and as Joint Limited Conservators of I.R., a minor, other, I.R., Tara Reed, Individually and as Joint Limited Conservators of I.R., a minor, other, I.R., Plaintiffs: Kenneth E. Barker, LEAD ATTORNEY, Barker Wilson Law Firm, LLP, Belle Fourche, SD.

For Union Resort, LLC, doing business as Mystic Miner, Defendant: Shane E. Eden, LEAD ATTORNEY, Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, SD.

Judges: VERONICA L. DUFFY, United States Magistrate Judge.

Opinion by: VERONICA L. DUFFY

Opinion

REPORT AND RECOMMENDATION

INTRODUCTION

This matter is before the court on the amended complaint of Brad and Tara Reed as conservators of I.R., their minor daughter. See Docket No. 16. The Reeds allege claims of negligence and gross negligence against defendant Union Resort, LLC, dba Mystic Miner (defendant) arising out of a tubing accident at defendant’s ski resort. Id. This matter rests on the court’s diversity jurisdiction, 28 U.S.C. § 1332.

Defendant has now filed a motion for summary judgment. See Docket No. 21. The Reeds oppose the motion. See Docket No. 30. The motion was referred to this magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B), the order of referral dated November 11, 2018 (Doc. 42), and the [*2] October 16, 2014, standing order of the Honorable Jeffrey L. Viken, Chief United States District Judge.

FACTS

Defendant filed a statement of undisputed material facts, Docket No. 22, to which the Reeds have responded, Docket No. 31. The following facts have been drawn from those pleadings with disputes or discrepancies as noted.

On March 13, 2015, Brad and Tara Reed brought their children to the defendant’s resort near Lead, South Dakota, for an afternoon of recreational snow tubing.¹ The resort was owned and operated by Union Resort, LLC, dba Mystic Miner. Among the Reeds’ children with them that day was seven-year-old I.R. Accompanying the Reeds were another couple and Alex, a social worker from the Philippines.

After signing the release and paying the admission fee, the Reeds and their kids received individual tickets for the tube park. Those tickets included additional warnings.

The Reeds were directed to select tubes from the resort’s selection of tubes, which they did. Defendant had approximately [*4] 50 to 70 tubes in inventory at the time, but there is no evidence how many of these tubes had already been selected by prior guests. No employee of defendant selected the tubes for the Reeds. Several defendant employees testified at their depositions that it was a practice at the resort to leave tubes with tears in the bottoms in circulation for guests to use. The employees explained that such tubes were slower and slower equated to safer in their minds.

On approximately two of the Reeds’ 15-20 tubing runs, there was a young man at the top of the tube runs who also appeared to be a resort employee with a radio in his possession. However, the young man never monitored the tube runs, never gave instructions to tubers, and never staged tubers going down the tube runs. “Staging” means controlling the entry of guests onto the tube runs to ensure that the prior tuber has [*5] finished the run and cleared the area before the next tuber is allowed to begin his or her descent. There was no staging and, instead, tubers decided themselves when to begin their descent, a situation Brad Reed described as a “free-for-all.”

Once both lanes were clear, Mrs. Reed and I.R. began their descents. Mrs. Reed went all the way down the run, but I.R.’s tube stopped approximately 3/4 of the way down the slope. While I.R. was stopped, Alex began her descent before I.R. cleared the lane. When Alex’s tube reached I.R.’s tube, they collided. No defendant [*6] employee told Alex to begin her descent, but no defendant employee was present at the top of the run to tell her, instruct her, or prevent her from beginning her descent until I.R. cleared the lane.

From the top of the slope, Mr. Reed testified Alex should have been able to see I.R. had not cleared the lane had Alex been paying attention. See Docket No. 25-5 at p. 7 (depo. pp. 25-26). Mr. Reed himself was able to observe the collision from his vantage point at the top of the slope. Id. at p. 6 (depo. pp. 22-24).²

If a lightweight child descended the slope with [*7] a tube with a tear in it, sometimes the tube would stop mid-way down the slope and a defendant employee would have to walk up the slope to retrieve the child. In such an instance, the defendant employee at the bottom of the slope would radio the employee at the top and tell them to stop sending guests down the slope until the child was retrieved and taken to the bottom.

The accident tube was the only tube checked out by the Reed group that had a tear in it. The Reeds did not notice the tear until after I.R.’s injury. The Reeds did not inform anyone at the resort about the tear in the tube after the accident occurred. There is no evidence that any defendant employee had specific knowledge that the Reeds had checked out a tube with [*8] a tear in it on the day of the accident, though defendant employees had general knowledge that such tubes were often retained in inventory because they were perceived to be “safer” because they were slower.

From the beginning of the 2010-11 season through the end of the 2014-15 season, defendant had incident reports of 17 collisions of tubers. During that same time frame, there were 72 total incident reports.³ Several of these collisions between tubers occurred within a few weeks and, in two examples, a few days, of I.R.’s collision. Specifically, there were 5 incident reports involving collisions between tubers going down the tube lane between December 30, 2014, and February 27, 2015. None of defendant’s incident reports record whether a hole in a tube contributed to the incident.

DISCUSSION

A. Summary Judgment Standard

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate where the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The court must view the facts, and inferences from those facts, in the light most favorable to the nonmoving party. See Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962)); Helton v. Southland Racing Corp., 600 F.3d 954, 957 (8th Cir. 2010) (per curiam). Summary judgment will not lie if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994).

The burden is placed on the moving party to establish both the absence of any genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Once the movant has met its burden, the nonmoving party may not simply rest on the allegations in the pleadings, but [*10] must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. Anderson, 477 U.S. at 256; Fed. R. Civ. P. 56(e) (each party must properly support its own assertions of fact and properly address the opposing party’s assertions of fact, as required by Rule 56(c)).

The underlying substantive law identifies which facts are “material” for purposes of a motion for summary judgment. Anderson, 477 U.S. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. (citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice And Procedure § 2725, at 93-95 (3d ed. 1983)). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-48.

Essentially, the availability of summary judgment turns on whether a proper jury question is presented: “The inquiry performed is the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine [*11] factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250.

B. Does the Release Signed by the Reeds Bar Their Claims?

Defendant’s first argument in favor of its summary judgment motion is that the clear and plain language of the release signed by the Reeds bars their claims and that there is no overriding public policy that serves to neutralize the release.

South Dakota law⁴ provides that a valid release of liability bars claims for ordinary negligence, but does not bar claims for gross or willful negligence or recklessness. Holzer v. Dakota Speedway, Inc., 2000 SD 65, 610 N.W.2d 787, 792-93 (S.D. 2000). The Reeds do not argue that the release was invalid in any way or that the activity I.R. was engaged in when she was injured was outside the scope of the release. In fact, the Reeds concede that their first claim in their amended complaint for ordinary negligence is barred by defendant’s release. See Docket No. 30 at p. 5. Accordingly, the court recommends that defendant’s motion for summary judgment as to the Reeds’ claim for ordinary negligence, count one of the amended complaint, be granted.

C. Are There Material Factual Disputes as to Gross Negligence?

Defendant argues the facts alleged [*12] by the Reeds, even if true, allege a claim for ordinary negligence only, not gross negligence. Thus, since ordinary negligence is barred by the release, defendant argues it should be granted summary judgment on the Reeds’ gross negligence claim too.

Under South Dakota law, the phrase “gross negligence” is synonymous with the phrase “willful and wanton misconduct.” Fischer v. City of Sioux Falls, 919 N.W.2d 211, 2018 SD 71, 2018 WL 4779267 at *2 (S.D., 2018). Both phrases refer “to a category of tort that is different in kind and characteristics than negligence.” Id. Negligence occurs when one acts with an “unreasonable risk of harm to another.” Id. (citing W. Page Keeton et al., Prosser & Keeton on the Law of Torts, § 34, at 212 (5th ed. 1984)). Willful and wanton misconduct requires a risk of harm that is “substantially greater than that which is necessary to make the conduct negligent.” Id. The threatened harm “must be an easily perceptible danger of death or substantial physical harm.” Id. (all quotes from Fischer cleaned up).

In addition, proof of a negligence claim focuses on the ordinary standard of care, while a gross negligence claim focuses on the defendant’s mental state. Id. 2018 SD 71, [WL] at *3. A defendant acts willfully and wantonly when it knows or has reason to know at the time of its actions [*13] of the dire risk and proceeds without concern for the safety of others. Id. The standard does not require proof of intent to harm, but it does “partake to some appreciable extent … of the nature of a deliberate and intentional wrong.” Id. Gross negligence requires “an affirmatively reckless state of mind.” Id. There must be “a conscious realization that a serious physical injury was a probable, as distinguished from a possible (ordinary negligence), result of such conduct.” Id. (all quotes from Fischer cleaned up).

The evidence must show more than “mere mistake, inadvertence, or inattention . . . there need not be an affirmative wish to injure another, but, instead, a willingness to injure another.” Gabriel v. Bauman, 2014 SD 30, 847 N.W.2d 537, 541 (S.D. 2014)). Generally, whether the facts constitute gross negligence is a question of fact “if reasonable minds might differ in interpreting the facts in arriving at different conclusions on whether the defendant was willful, wanton, or reckless.” Id. at 542. “Because willfulness, wantonness, or recklessness is almost never admitted, and can be proved only by the conduct and the circumstances, an objective standard must of necessity in practice be applied. Id. at 542-43.

Summarizing the above case law, gross negligence [*14] is distinguished from ordinary negligence by two factors. The risk of harm must be greater for gross negligence—whereas under ordinary negligence, the risk of harm can be anything from negligible harm to death, the risk of harm for gross negligence must be death or serious harm. Fischer, 2018 SD 71, 2018 WL 4779267 at *2. Secondly, the likelihood that harm will come about, phrased in terms of the defendant’s state of mind, must be greater. For example, if there is a 10 percent chance some harm will happen and the defendant fails to take steps to ensure that harm does not come about, he is merely negligent. If there is an 85 percent chance serious harm or death will happen and the defendant fails to take steps to ensure the harm does not occur, he has acted willfully and wantonly or with gross negligence.

The Reeds posit three facts in support of their assertion the defendant in this case acted grossly negligent (or willfully and wantonly) with regard to I.R. First, the defendant had a practice of leaving tubes with tears in the canvas bottoms in rotation for guests to use because the torn tubes were slower and, therefore, in the eyes of defendant’s employees, safer. Second, the defendant knew the importance of staging—having [*15] an employee at the top of the tube run to meter the guests as they descended the slope so that one guest could clear the run before the next guest began descending—but made a deliberate decision not to station an employee at the top of the tube run on the day of I.R.’s accident. And, finally, the existence of prior collisions on the tube run put the defendant on notice of the likelihood of harm.

Neither party speaks to the magnitude of the harm which, as discussed above, is one of the two factors distinguishing ordinary negligence from gross negligence. The defendant does not cite facts or circumstances to show that the prior collisions were minor bump-and-bruise types of encounters. The Reeds do not cite facts or circumstances to show the prior collisions resulted in concussions, closed head injuries, broken bones, surgeries or hospitalizations. The Reeds have supported their assertion that I.R.’s injuries were sufficiently serious—a fractured skull–something defendant does not dispute. Because the moving party has the burden, the court makes all inferences in favor of the nonmoving party. Accordingly, the court infers that previous accidents were sufficiently severe in nature to [*16] satisfy the standard required for gross negligence.

Likewise, with regard to the number of prior incidents, neither party has placed into the record what the total number of tubers was during the period of time covered by the incidents. This fact goes to the likelihood of a collision—for gross negligence, there must be a greater probability of harm occurring than is the case with ordinary negligence. If 17 collisions occurred between fall of 2010 and March 15, 2015, and there were 5,000 tubers during that time, the number of prior accidents takes on one type of significance. But the significance of the number of prior accidents is different if the total number of tubers during that time frame is 100, 300, or even 500. There is a significantly bigger risk of harm the smaller the total number of tubers. Although the defendant alleges there were “thousands” of tubers, it has not supported that assertion with citation to an affidavit, deposition, or authenticated document. Again, there is a lack of evidence.

Also, neither party describes the scope of defendant’s incident reports. Do they encompass all kinds of incidents—those attributable to conditions on the slopes within defendant’s control [*17] as well as incidents attributable to factors not within defendant’s control? Do they encompass heart attacks and strokes as well as collisions? Do the reports include drunken brawls between guests as well as injuries inflicted when a tow bar snaps?

Furthermore, is there any evidence suggesting that not all collisions at defendant’s resort are documented in incident reports? Are the incident reports the tip of the iceberg—or are they truly representative of all injuries occurring at defendant’s resort?

Finally, defendant does not dispute that no employee was stationed at the top of the tube run at the time of I.R.’s accident. The Reeds assert that defendant was “chronically understaffed” and that defendant made a “deliberate decision” not to place an employee at the top of the tube run that day. The Reeds have amply supported their assertion that defendant was chronically understaffed, with the result that positions that should have been filled by employees were left unattended. See Docket Nos. 33-4, 33-5, & 33-8. The Reeds also supplied testimony that, when there were not enough employees, the defendant prioritized putting an employee at the bottom of the tube slope rather than at the [*18] top of the slope. See Docket No. 33-4 at p. 5 (depo p. 20). From these two facts, the Reeds infer that defendant made a “deliberate decision” the day of the accident not to place an employee at the top of the tube slope to stage the tubers.

Defendant disputes that it made a “deliberate decision” not to have an employee staging the tubers that day. Defendant’s disagreement with the Reeds’ assertion is based solely on the fact that they do not have testimony from any witness stating outright that a calculated decision was made. Defendant seems to assert that the Reeds may not rely upon an inference, but must have affirmative evidence of the fact a “deliberate decision” was made.

The court makes two observations. Under the law of gross negligence, South Dakota has recognized a plaintiff will rarely have direct evidence of the defendant’s state of mind. Gabriel, 847 N.W.2d at 542-43. Rather, state of mind must be inferred from the circumstances. Id. Also, under the law of summary judgment, all inferences from the facts must be made in favor of the nonmoving party. Matsushita Elec. Co., 475 U.S. at 587-88. Both sources of law, then, support taking the Reeds’ view of the inference to be drawn from the fact that defendant was chronically understaffed and did [*19] not have an employee stationed at the top of the tube run at the time of I.R.’s accident.

Defendant attempts to eliminate a genuine issue of fact as to the presence of a staging employee by asserting that there was in fact an employee at the top of the tube hill with a radio. See Docket No. 34 at p. 6. In support of this assertion of fact, defendant cites Mr. and Mrs. Reeds’ depositions and argues they cannot claim a version of facts more favorable than their own testimony, an old chestnut of South Dakota Law.

Reading the Reeds’ depositions, however, leads one to conclude defendant’s assertion is, if not outright untrue, certainly misleading. Both Mr. and Mrs. Reed testified no one was at the top of the hill staging the tubers at the time of I.R.’s accident. Docket No. 27-1 at p. 10 (depo. p. 30); Docket No. 27-5 at p. 7 (depo. p. 25). Prior to the accident, both the Reeds had observed a young man with a radio they assumed was defendant’s employee at the top of the hill during one or two of the Reed party’s previous 15-20 tube runs. However, the young man never provided instruction to the tubers about when to go down the slope—he was not staging the tubers. Docket No. 27-1 at p. 10 (depo. [*20] pp. 39-40). Thus, the Reeds have sustained their assertion of fact that defendant had no employee stationed at the top of the tube hill to stage tubers at the time of I.R.’s accident.

Defendant’s motion is decided with resort to two veins of law. First, the law applicable to summary judgment. As the movant, defendant has the burden to show that there are no genuine disputes of material fact and that, based upon those undisputed facts, it is entitled to judgment as a matter of law. All of the absences of crucial fact detailed by the court above cut against defendant as the moving party. Furthermore, all of the inferences from the facts that are present in the record must be drawn in favor of the Reeds. Applying those standards to the issue before the court, the conclusion is inescapable that there are genuine issues of material fact existing which prevent summary judgment in defendant’s favor.

The second vein of law which comes into play is the dictate of South Dakota law that, ordinarily, questions of whether a defendant acted with gross negligence are questions of fact for the jury if reasonable minds could differ as to the inferences to draw from the known facts. Gabriel, 847 N.W.2d at 542. That is the situation [*21] here. The court recommends that defendant’s motion for summary judgment on the Reeds’ gross negligence claim be denied.

D. Are There Material Factual Disputes as to Assumption of the Risk?

Defendant’s final argument in favor of its summary judgment motion is that the Reeds assumed the risk of their daughter’s accident as a matter of law, thereby relieving defendant of any liability. The court addresses the first question apparent by defendant’s argument: whether assumption of the risk is even a defense to a claim of gross negligence. As legal authority for its position, defendant cites only the Restatement (Second) of Torts 496A, cmt. d (1965), and a dissenting opinion in Barger for Wares v. Cox, 372 N.W.2d 161, 170-71 (S.D. 1985) (Wuest, J., dissenting). See Defendant’s Brief, Docket No. 23 at pp. 29-30. Neither of these authorities represent binding South Dakota law.

The Reeds in their brief do not address the issue of whether assumption of the risk is a defense to a claim of gross negligence. They argue only that assumption of the risk is a quintessential issue of fact for the jury. See Docket No. 30 at pp. 13-14.

In the Holzer case discussed previously, the plaintiff signed defendant’s release of liability form which defendant called an “assumption of the risk” form. Holzer, 610 N.W.2d at 790. The court held [*22] in that case that liability releases only serve to protect defendants from claims of ordinary negligence, not from claims of gross negligence. Id. at 793. However, the title the defendant chose to give its release form is not dispositive of the question in this case.

The South Dakota Supreme Court has said that when a defendant’s actions are merely negligent, the defense of contributory negligence applies. But when the defendant’s conduct is willful and wanton, the defense of contributory negligence does not apply. Carlson v. Johnke, 57 S.D. 544, 234 N.W. 25, 27-28 (S.D. 1931), overruled on other grounds Wittstruck v. Lee, 62 S.D. 290, 252 N.W. 874, 877 (S.D. 1934) (clarifying that it did not adopt the doctrine of comparative negligence in Johnke).

In a dissenting opinion in another case, Justice Henderson stated that while assumption of the risk was a defense to ordinary negligence, the plaintiff would nonetheless have recourse for willful or wanton acts of a defendant. Johnson v. Rapid City Softball Ass’n. , 514 N.W.2d 693, 703 (S.D. 1994) (Henderson, J., dissenting). See Rantapaa v. Black Hills Chair Lift Co., 2001 SD 111, 633 N.W.2d 196, 204 (S.D. 2001) (assumption of the risk is an affirmative defense to an ordinary negligence claim).

The court has found no South Dakota case directly on point addressing whether the defense of assumption of the risk applies to grossly negligent or willful and wanton conduct. Defendant cites § 496A, comment d, of the Restatement (Second) of Torts for the proposition that the defense is [*23] available here. The section cited stands for the proposition that assumption of the risk is a defense to both ordinary negligence and to reckless conduct. The section does not address gross negligence or willful and wanton conduct. However, it is true that the South Dakota Supreme Court has, at times, used the word “reckless” interchangeably with “gross negligence” and “willful and wanton.”

If assumption of the risk is a defense to a claim of gross negligence, it is a subjective standard. Duda v. Phatty McGees, Inc., 2008 SD 115, 758 N.W.2d 754, 758 (S.D. 2008). Defendant has the burden to prove that “the particular plaintiff in fact sees, knows, understands and appreciates” the specific risk that caused the injury. Id. The defendant must prove three elements: (1) the plaintiff had actual or constructive knowledge of the risk; (2) the plaintiff appreciated its character; and (3) the plaintiff voluntarily accepted the risk, with the time, knowledge, and experience to make an intelligent choice. Id. “A person is deemed to have appreciated the risk if it is the type of risk that no adult of average intelligence can deny.” Id. (quoting Westover v. East River Elec. Power Coop., Inc., 488 N.W.2d 892, 901 (S.D. 1992)) (cleaned up).

The Restatement states that a plaintiff who knows generally of a danger does not necessarily assume the risk if [*24] the danger appears to be slight or negligible. See
Restatement (Second) Torts §496D, cmt. b. The Restatement also echoes what South Dakota law establishes: because the standard for assumption of the risk is a subjective one based on whether the plaintiff knows of the existence of the risk as well as understands its magnitude and unreasonable character, the question of assumption of the risk is almost always a question of fact for the jury to decide. Id.; Ray v. Downes, 1998 SD 40, 576 N.W.2d 896, 900 (S.D. 1998).

Here, the Reeds have established that neither they nor their children had ever been tubing before the day they visited defendant’s resort. See Docket No. 27-1 at p.3 (depo. p. 12). They anticipated that tubing at defendant’s resort would be safe, fun and would build family memories. See Docket No. 33-1 at p. 103. Furthermore, there is no evidence produced by defendant showing that the Reeds anticipated, understood, and accepted the risk that defendant would provide no employee at the top of the tube run to stage the tubers—contrary to defendant’s own policy and its prominent signage at the resort (i.e. follow attendant’s instructions when going down the tube run).

The defense of assumption of the risk is a subjective one. There are material issues of fact as to what the [*25] Reeds knew and appreciated in terms of the risk they and I.R. would encounter when tubing at defendant’s resort. Assuming that the defense applies at all to a claim of gross negligence, the court concludes summary judgment is inappropriate on this record.

Conclusion

Based on the foregoing facts, law and analysis, this magistrate judge respectfully recommends granting in part and denying in part defendant’s motion for summary judgment, Docket No. 21. Specifically, the court recommends defendant’s motion should be granted as to plaintiff’s claim for ordinary negligence, but recommends defendant’s motion should be denied as to plaintiff’s claim for gross negligence.

Notice To Parties

The parties have fourteen (14) days after service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1), unless an extension of time for good cause is obtained. Failure to file timely objections will result in the waiver of the right to appeal questions of fact. Objections must be timely and specific in order to require de novo review by the District Court. Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir. 1986).

DATED November 15, 2018.

BY THE COURT:

/s/ Veronica L. Duffy

VERONICA L. DUFFY

United States Magistrate Judge

Your release cannot use the term “inherent risk” as the description of the risks, it creates no release at all.

Posted: September 21, 2020 | Author: Recreation Law | Filed under: California, Release (pre-injury contract not to sue), Skier v. Skier, Skiing / Snow Boarding | Tags: aggravated, assumption of the risk, comparative fault, fault, grossly, Implied Primary Assumption of the Risk, Inherent Risk, invited, italics, jurors, Lawsuit, misconduct, recreational, Release, Resort, secondary, Secondary Assumption of the Risk, Skier, skiing, Snow, Snowboarder, Sport, unambiguously, Waiver | Leave a comment

California appellate court reviews numerous issues brought by plaintiff in this skier v. skier fatality. Most important issue is the relationship between Assumption of the Risk in California and a Release.

Tuttle v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

State: California, Court of Appeal of California, Fourth Appellate District, Division Three

Plaintiff: Grant Tuttle et al.

Defendant: Heavenly Valley, L.P.

Plaintiff Claims:

Defendant Defenses: doctrines of primary assumption of the risk, on the ground Tuttle’s accident was the result of the inherent risks of skiing, and express assumption of the risk, based on Tuttle’s signed release of all claims and liability for defendant’s negligence.

Holding: for the defendant

Year: 2020

Summary

Skier died after being hit by snowboarder coming out of terrain park. Descendant’s heirs could not sue because the release stated the descendant assumed the risk of her injuries. Case is still ongoing.

Discussion by the court provides great analysis of the different types of risk assumed and the differences between inherent risks and other risks.

Facts

On September 2, 2013, Tuttle purchased a season ski pass from defendant and executed a release.2 The release begins with an all-capital advisement: “WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY INDEMNIFICATION AGREEMENT PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A RELEASE OF LIABILITY WAIVER OF CERTAIN LEGAL RIGHTS.”

The accident occurred on December 21, 2013. Snowboarder Anthony Slater was proceeding out of defendant’s terrain park and collided with skier Tuttle after their respective trails merged. The impact of the collision propelled Tuttle into a tree. Tuttle died the following morning. Factors that potentially contributed to the accident included defendant’s signage, fencing, crowd control the day of the accident, Tuttle’s ski path, and Slater’s speed.

It is unknown what happened to the lawsuit against the snowboarder.

The actual facts on how the trial proceeded are convoluted and not in the normal course of trials. The appellate court recognized this and found although the proceedings were different, the outcome was correct.

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

The court first reviewed release law in California. The main issue the court found was the relationship between a release in California and the inherent risks of a sport. The court made this statement, which should be known by everyone in the outdoor industry.

But a release that applies only to the inherent risks of a sport is the legal equivalent of no release at all.

When you play sports, explore the woods or ski, just three examples, you assume the risk of the inherent risks of the sport. If your release only identifies inherent risks as the risks, the release protects against, you release is protecting you from things you are already protected against. A plaintiff cannot sue you for the inherent risks of the activity.

Your release is written, or should be written, to protect you from all the other risks of an activity. Risks such as those created by equipment, guides or decision’s guides or participants make. Those are risks that are probably not inherent to the sport and a such; you are liable for those risks.

The court did an extensive analysis of these issues. The foundation case is Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696, a California Supreme Court decision that has been quoted in hundreds of cases in most states and laid down the definitions of the different types of risk and how a person assumes those different risks.

Knight and its progeny have established that a ski resort operator is not liable for injuries caused by risks inherent in the sport of snow skiing. Instead, pursuant to the doctrine of primary assumption of the risk, participants in active sports assume responsibility for injuries sustained as a result of the sport’s inherent risks. Stated another way, the defendant owes no duty of care to protect the plaintiff from the inherent risks of an active sport. Because no duty of care is owed and the plaintiff has assumed the risk of injury, no release is necessary to absolve a defendant of liability when a plaintiff is injured as the result of an inherent risk in an active sport such as skiing.

The issue in the law then becomes has the defendant done something to change the inherent risks or said another way increased the risk to the participants. The participant assumes the inherent risks and others, but not to the extent the risk has been increased. You cannot assume gross negligence, for example.

A ski resort operator “still owe[s] a duty, however, not to increase the risks of injury beyond those that are inherent in the sport. This distinction is closely tied to the policy underlying the finding of no duty, i.e., there should be no liability imposed which would chill normal participation or fundamentally alter the nature of the sport, but liability may be appropriate where the risk is not ‘inherent’ in the sport.” This is the doctrine of secondary assumption of the risk, and it is an exception to the complete defense of primary assumption of risk.

The balance between the risks in the sport that create the excitement and define the sport versus actions of the defendant in controlling or presenting the sport in such a way the risks cannot be assumed by the participants.

The court then compared the issues of increasing the risk and comparative fault. Comparative fault is how the jury or trier of fact determines who is actually liable and in what percentages for the injuries of the plaintiff.

Comparative fault principles apply in secondary assumption of the risk cases. The trier of fact considers the “plaintiff’s voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff’s decision to encounter the risk should be characterized as unreasonable” and weighs it against the defendant’s breach of the duty not to increase the risks beyond those inherent in the active sport. Where a plaintiff’s “injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility.”

The court then reviewed the relationship between comparative fault and how that is affected when a release is used.

A different analysis applies when a skier signs a written release that expressly holds the ski operator harmless for its own negligence. This triggers the doctrine of express assumption of the risk. Unlike secondary assumption of the risk, but like primary assumption of the risk, the doctrine of express assumption of the risk provides a complete defense in a negligence action.

The court then clarified its statement defining how a court looks at how the defenses are applied to the facts.

However, unlike both implied primary and secondary assumption of the risk, which focus on risks inherent in an active sport like skiing, express assumption of the risk focuses on the agreement itself.

Court added further clarification to its statement.

A valid release “operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action.” The legal issue in an express assumption of the risk case “‘is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies, but simply the scope of the Release.'”

In assumption of the risk, the plaintiff must know the risks they are assuming. A release removes that actual knowledge from the analysis.

The court then looked at the limits of protection a release provides. That limit is defined as gross negligence.

There is an outer limit to the scope of a release from liability for one’s own negligence in the recreational sports context: As a matter of public policy, if a skier proves the operator unreasonably increased the inherent risks to the level of gross negligence, express assumption of the risk is no longer a viable defense; and the operator will be liable for damages notwithstanding the existence of a valid release of liability for ordinary negligence.

If the defendant engages in gross negligence, that is outside of the protection afforded by the release.

A validly executed express release of liability for a defendant’s ordinary negligence means the only viable theory for a judgment in a plaintiff’s favor is if the defendant acted with gross negligence. There is no inconsistency between findings that a defendant is ordinarily negligent by unreasonably increasing the inherent risks of snow skiing, but not grossly negligent. A finding of gross negligence would necessarily mean a defendant unreasonably increased the inherent risks of snow skiing, so that comparative fault principles apply. But an express release, coupled with an undisputed factual finding that a defendant did not act with gross negligence, necessarily results in a defense judgment.

The court then recapped its comparison of the legal issues in a case involving inherent and other risks and a release.

To recap, snow skiing has inherent risks, and a ski operator does not owe skiers any duty to protect against them. If a skier is injured as a result of a risk inherent in the sport, the doctrine of primary assumption of the risk provides a complete defense to a lawsuit against the ski operator. But a ski resort operator owes a duty not to unreasonably increase the risks beyond those inherent in the sport. If a ski operator breaches this duty, the doctrine of secondary assumption of the risk makes the ski resort liable to an injured skier on a comparative fault basis. If the skier executes a release that absolves the ski resort operator of liability for the operator’s negligence, the release is a complete defense, provided the ski operator did not act with gross negligence. That is to say, the ski operator is entitled to judgment as a matter of law if the skier has signed a valid release and the ski operator’s conduct, although negligent, was not grossly negligent.

There is a lot more discussion in the case about the procedural issues and how the trial was handled. There is no need to discuss these here.

So Now What?

This is a difficult case to read and understand, however, if you can parse the procedural arguments from the assumption of the risk and release arguments, it is extremely educational in explaining the relationship between the plaintiff and defendant in a case like this.

Simply put there is a hierarchy of defenses available to a business or program in the outdoor recreation industry. There is no fine line between them, in fact, it is a massive gray area, that changes when you move from state to state.

Inherent Risks of the Activity
Assumption of the Risk
Release

Nor are the defenses entirely separate from each other. And if used properly they can be effectively used to support and define each other.

Your website can help explain the risks, inherent and otherwise. Your release can identify specific risks, which may not be apparent to some or for which some may argue they did not know and understand. Your safety talk can define the inherent risks of the activity to make sure those are known by participants.

When writing a release or assumption of the risk agreement, those written documents need to take in all aspects of the risks and make sure nothing in your program or marketing derails your defense wall.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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

skiing, sport, resort, fault, skier, grossly, recreational, secondary, jurors, snow, invited, italics, unambiguously, aggravated, misconduct, lawsuit

Tuttle v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

Posted: August 27, 2020 | Author: Recreation Law | Filed under: Assumption of the Risk, California, Legal Case, Release (pre-injury contract not to sue), Skier v. Skier, Skiing / Snow Boarding | Tags: aggravated, Assumption of Risk Doctrine, assumption of the risk, comparative fault, fault, grossly, invited, italics, jurors, Lawsuit, misconduct, Primary Assumption of Risk, recreational, Release, Resort, secondary, Secondary Assumption of Risk, Skier, skiing, Snow, snowboarding, Sport, Terrain park, unambiguously, Waiver | Leave a comment

Tuttle v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

Tuttle v. Heavenly Valley, L.P.

Court of Appeal of California, Fourth Appellate District, Division Three

February 5, 2020, Opinion Filed

G056427

Reporter

2020 Cal. App. Unpub. LEXIS 814 *; 2020 WL 563604

GRANT TUTTLE et al., Plaintiffs and Appellants, v. HEAVENLY VALLEY, L.P., Defendant and Respondent.

Notice: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.

Subsequent History: Request denied by Tuttle v. Heavenly Valley, L.P., 2020 Cal. LEXIS 2940 (Cal., Apr. 29, 2020)

Prior History: [*1] Appeal from a judgment and post judgment orders of the Superior Court of Orange County, Ct. No. 30-2015-00813230, Nathan R. Scott, Judge.

Disposition: Affirmed.

Counsel: The Simon Law Group, Thomas J. Conroy; Williams Iagmin and Jon R. Williams for Plaintiffs and Appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker, Steven R. Parminter, Patrick M. Kelly and John J. Immordino for Defendant and Respondent.

Judges: DUNNING, J.^*, BEDSWORTH, ACTING P. J., MOORE, J. concurred.

Opinion by: DUNNING, J.

Opinion

INTRODUCTION

Skier and Heavenly Valley season passholder Dana Tuttle died after she and a snowboarder collided at Heavenly Valley’s resort in South Lake Tahoe. Tuttle’s spouse and sons sued Heavenly Valley and the snowboarder.¹ Defendant asserted as defenses the doctrines of primary assumption of the risk, on the ground Tuttle’s accident was the result of the inherent risks of skiing, and express assumption of the risk, based on Tuttle’s signed release of all claims and liability for defendant’s negligence.

The trial court determined as a matter of law the release was unambiguous and covered Tuttle’s accident. Despite these conclusions, the jury was still asked to decide whether defendant “unreasonably increased the risks . . . over and above [*2] those inherent in the sport of skiing.” The jury found defendant did, but unanimously agreed defendant did not act with gross negligence. Finding Tuttle and defendant each 50 percent at fault, the jury awarded plaintiffs substantial damages.

A judgment in plaintiffs’ favor typically would have followed as a matter of course unless defendant formally moved for, and was granted, a judgment notwithstanding the verdict (JNOV). However, the trial court determined the jury’s factual finding that defendant was not grossly negligent, coupled with its legal conclusion that the release provided a complete defense to plaintiffs’ lawsuit, compelled entry of a judgment in defendant’s favor, even without a posttrial JNOV motion.

Plaintiffs appeal, but do not challenge the jury instructions, the special verdict form, or the finding that defendant did not act with gross negligence. Plaintiffs urge this court to (1) review the release do novo and conclude it does not cover Tuttle’s accident, (2) hold the release violates public policy, (3) find that defendant invited errors in the special verdict form and jury instructions and forfeited the opportunity for entry of judgment in its favor without first [*3] formally moving for JNOV, and (4) order a new trial. We find no error, however, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Release

On September 2, 2013, Tuttle purchased a season ski pass from defendant and executed a release.² The release begins with an all-capital advisement: “WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY INDEMNIFICATION AGREEMENT PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A RELEASE OF LIABILITY WAIVER OF CERTAIN LEGAL RIGHTS.” Salient provisions of the release are found in paragraphs 1, 2, 5, 6, and 13.

In paragraph 1, Tuttle acknowledged snow skiing “can be HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH.” In paragraph 2, she “ASSUME[D] ALL RISKS . . . known or unknown, inherent or otherwise [associated with skiing at the resort, including] falling; slick or uneven surfaces; surface and subsurface snow conditions; . . . variations in terrain; design and condition of man-made facilities and/or terrain features; . . . [and] collisions.” Paragraph 5 advised: “The description of the risks listed above is not complete and participating in the Activities may be dangerous and may also include risks which are inherent and/or which cannot be reasonably [*4] avoided without changing the nature of the Activities.”

Paragraph 6 included Tuttle’s express agreement “NOT TO SUE AND TO RELEASE [DEFENDANT] FROM ALL LIABILITY . . . for . . . injury or loss to [her], including death.” This paragraph specifically advised that Tuttle was releasing all “CLAIMS BASED ON [DEFENDANT’S] ALLEGED OR ACTUAL NEGLIGENCE . . . .” In paragraph 13, Tuttle agreed the release was “binding to the fullest extent permitted by law . . . on [her] heirs, next of kin, executors and personal representatives.”

II.

The Accident and the Lawsuit

Plaintiffs sued defendant and Slater.³ Defendant raised the defenses of implied and express assumption of the risk: (1) “any injury, loss or damage purportedly sustained . . . by Plaintiffs was directly [*5] and proximately caused and contributed to by risks which are inherent to the activity in which Plaintiffs participated”; (2) “Plaintiffs either impliedly or expressly relieved Defendant of its duty, if any, to Plaintiffs by knowingly assuming the risk of injury”; and (3) defendant “is entitled to defense and indemnity of each and every cause of action alleged in the Complaint pursuant to the release agreement signed by Plaintiffs and/or Plaintiffs’ representative or agent.”

III.

The Jury Trial

The jury trial spanned five weeks.⁴ The week before jury selection, the parties stipulated to a special verdict form that posed two liability questions: (1) whether defendant “unreasonably increased the risks to Tuttle over and above those inherent in the sport of skiing” and (2) whether defendant was grossly negligent. The special verdict form further instructed the jury that if it answered “yes” to either question, it was to make findings regarding the amount of damages and allocation of fault. Before the final witness concluded his testimony, the trial court confirmed that counsel was not making any changes to the special verdict form.

The following day, at the close of evidence and outside the [*6] jurors‘ presence, the trial court denied plaintiffs’ motion for directed verdict and defendant’s renewed motion for nonsuit.⁵ The trial court rejected plaintiffs’ argument the release was fatally ambiguous with regard to the risks involved in the accident. Given the absence of competent extrinsic evidence regarding the release, the trial court determined its interpretation presented a legal question for the court: “So I will construe the release, relying on its plain language. I find that it is not ambiguous. It covers the risks here, most notably in paragraph 2 where it covers risks regarding design and collision, and later where it notes that the risks include injury, including death.”

In the trial court’s own words, the finding as a matter of law that the release unambiguously discharged defendant from liability for its own ordinary negligence meant “we still have questions for the jury about whether the contract was entered into and whether the defendant[] committed gross negligence that cannot be released. For these reasons, the plaintiffs’ motion for directed verdict is denied.”

The rulings prompted defendant’s counsel to suggest additional jury instructions and a revision to the [*7] special verdict form might be necessary to address the fact issues surrounding Tuttle’s execution of the release. The following colloquy then ensued: “[Plaintiffs’ counsel]: Your Honor I’ll shortcut the whole thing. With the court’s ruling, I’ll stipulate to the formation of the contract and proceed with the verdict form as is, so no need for additional instructions. [¶] [Defendant’s counsel]: I’m sorry. To be clear, we have a stipulation that the contract existed and that the contract included the release and waiver language? [¶] [Plaintiffs’ counsel]: Right. The release and—release of liability and waiver was executed—existed and was executed. That’s the stipulation. [¶] [Defendant’s counsel]: Accepted, your Honor. [¶] The Court: So stipulated.” (Italics added.)

At this point, the jurors returned to the courtroom. The trial court read the jury instructions, and plaintiffs’ counsel began his closing argument. He had this to say about the release: “What we’re talking about here, the liability of the resort does not fall under this release. And you are not going to be asked any questions on the verdict form about the release. Yeah, [Tuttle] signed one, and she understood the inherent [*8] risks of skiing, and that’s what the release
releases. It does not release gross negligence. It does not release what we’re talking about.”

At the beginning of the afternoon session, before defendant’s closing argument, the trial court and counsel met again outside the jurors’ presence to discuss the stipulation concerning the release. Plaintiffs’ counsel maintained the jury should not hear about the stipulation. When the trial court repeated its concern the jury could “end up finding that the release was not valid” and invited counsel to revisit the special verdict form, plaintiffs’ counsel replied there was no need as “the release in evidence releases
negligence. And the questions on the verdict form go [] to gross negligence, and—this doesn’t have to do with the release, but the increase of unreasonable risk.” Defendant’s counsel remarked the “dialogue this morning, your Honor, was prompted in part by the plaintiffs’ desire not to have to modify further the special verdict form.” Plaintiffs’ counsel concurred: “Right.” Counsel then agreed the stipulation would not be read to the jury.

Closing arguments continued. Defendant’s counsel did not mention the release in his closing argument. [*9] Neither did plaintiffs’ counsel in his rebuttal argument. There, he referred to the special verdict form and told the jurors, “[a]t the end of the day, it’s a simple exercise. That jury form . . . . [¶] . . . If you perceive wrong on the part of [defendant], you tick those two boxes. And there’s two of them—you tick them both. Procedurally, you tick the one about increased unreasonable risk, and then you tick the one about gross negligence. If you perceive wrong, that’s what you do.”

The jury was never told the release provided a complete defense to defendant’s ordinary negligence.

IV.

The Special Verdict

As to defendant, the special verdict form included three liability questions, three damages questions, and three comparative fault/apportionment of liability questions. The liability questions read as follows:

“3. Did Heavenly Valley do something or fail to do something that unreasonably increased the risks to Dana Tuttle over and above those inherent in the sport of skiing?

“Yes X No __

“4. Was Heavenly Valley grossly negligent in doing something or failing to do something that caused harm to Dana Tuttle?

“Yes __ No X

“If you answered ‘Yes’ to either question 3 or 4, then answer question [*10] 5. [¶] If you answered ‘No’ to both questions 3 and 4, and also answered ‘No’ to either question 1 or 2, then sign and return this verdict form. You do not need to answer any more questions.

“If you answered ‘Yes’ to both questions 1 and 2, and answered ‘No’ to both questions 3 and 4, insert the number ‘0’ next to Heavenly Valley’s name in question 11, skip question 5, and answer questions 6-11.

“5. Was Heavenly Valley’s conduct a substantial factor in causing harm to Dana Tuttle?

“Yes X No __”

Because the jury answered “yes” to question 5, it was instructed to answer the remaining questions. The jury determined plaintiffs’ damages were $2,131,831, with Tuttle and defendant sharing equal responsibility.

Immediately after polling the jurors, the trial court asked plaintiffs’ counsel to prepare the judgment and submit it the next morning. The trial court then thanked and discharged the jury without objection from trial counsel. No one noted on the record that express assumption of the risk was a complete defense to the jury’s verdict.

Entry of a Defense Judgment

At the trial court’s direction, plaintiffs’ counsel prepared a proposed judgment awarding plaintiffs $1,065,915.50, plus costs and [*11] interest. Defendant objected on the basis the jury found defendant was not grossly negligent and the release provided “a complete and total defense to this entire lawsuit and Plaintiffs should take nothing.”⁶

After briefing and a hearing, the trial court sustained defendant’s objection to plaintiffs’ proposed judgment. In its March 9, 2018 order, the trial court reiterated its finding as a matter of law that Tuttle’s release “clearly, unambiguously, and explicitly released defendant from future liability for any negligence against Dana Tuttle.” The trial court explained its earlier finding concerning the scope of the release still left open fact questions as to whether Tuttle knowingly accepted the release agreement and, if she did, whether defendant acted with gross negligence. With the parties’ stipulation that Tuttle knowingly executed the release and the jury’s factual finding that defendant did not act with gross negligence, the trial court further explained there was only one legal conclusion: “[D]efendant has prevailed on the express assumption issue and ‘negate[d] the defendant’s duty of care, an element of the plaintiff’s case.'”

The trial court acknowledged “the structure” of [*12] the special verdict form erroneously directed the jury to continue to answer questions on damages after finding defendant had not been grossly negligent. The trial court found, however, the jury’s specific finding that defendant did not act with gross negligence was not inconsistent with, but instead overrode, the award of damages.

The trial court did not invite defendant to file a motion for JNOV or call for the filing of such a motion on its own initiative. Instead, it entered judgment in favor of defendant.

VI.

Plaintiffs’ Post judgment Motions

The defense judgment reiterated the jury’s special verdict findings and stated in relevant part: “It appearing that by reason of those special verdicts, and the Court’s interpretation of the terms of the legal contract in Decedent Dana Tuttle’s season ski pass agreement, and [the] legal conclusions as set forth in that certain Order entered on March 9, 2018, Defendants Heavenly Valley L.P., and Anthony Slater are entitled to judgment on Plaintiffs’ complaint.” (Some capitalization omitted.)

Plaintiffs filed a motion to set aside the judgment under Code of Civil Procedure section 663 on the ground the judgment was not consistent with the special verdict and adversely affected plaintiffs’ [*13] substantial rights. Plaintiffs also filed a motion for JNOV or, in the alternative, a new trial, on the grounds there was insufficient evidence defendant had not acted with gross negligence,⁷ the special verdict was “hopelessly contradictory” because the jury’s gross negligence finding imposed no liability, but its apportionment of fault between Tuttle and defendant did, and defendant invited errors.

The trial court denied plaintiffs’ post judgment motions. Plaintiffs timely appealed.

DISCUSSION

The Release Covered Tuttle’s Accident.

The trial court found as a matter of law that defendant’s release was not ambiguous and covered Tuttle’s accident. Our review of the release is de novo. (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754, 29 Cal. Rptr. 2d 177.) No extrinsic evidence concerning the meaning of the release was presented in the trial court, so “the scope of a release is determined by [its] express language.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357, 129 Cal. Rptr. 2d 197 (Benedek).)

Rather than a straightforward argument the trial court erred as a matter of law in interpreting the release, plaintiffs contend the release was narrow in scope and applied only to risks inherent in the sport of snow skiing. But a release that applies only to the inherent risks of a sport is the legal equivalent of no release at all. [*14] (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1490, 72 Cal. Rptr. 3d 471 (Cohen); Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1291, 66 Cal. Rptr. 3d 704 (Zipusch).) To understand the distinction, we detour briefly to discuss the doctrines of implied and express assumption of the risk.

Overview: Assumption of the Risk

The California Supreme Court’s decision in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (Knight)⁸ and its progeny have established that a ski resort operator is not liable for injuries caused by risks inherent in the sport of snow skiing.⁹ Instead, pursuant to the doctrine of primary assumption of the risk, participants in active sports assume responsibility for injuries sustained as a result of the sport’s inherent risks. (Id. at p. 321.) Stated another way, the defendant owes no duty of care to protect the plaintiff from the inherent risks of an active sport. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1367, 59 Cal. Rptr. 2d 813 (Allan).) Because no duty of care is owed and the plaintiff has assumed the risk of injury, no release is necessary to absolve a defendant of liability when a plaintiff is injured as the result of an inherent risk in an active sport such as skiing.

A ski resort operator “still owe[s] a duty, however, not to increase the risks of injury beyond those that are inherent in the sport. This distinction is closely tied to the policy underlying the finding of no duty, i.e., there should be no liability imposed [*15] which would chill normal participation or fundamentally alter the nature of the sport, but liability may be appropriate where the risk is not ‘inherent’ in the sport.” (Allan, supra , 51 Cal.App.4th at p. 1367, italics omitted.) This is the doctrine of secondary assumption of the risk, and it is an exception to the complete defense of primary assumption of risk. (Knight, supra , 3 Cal.4th at p. 308.)

Comparative fault principles apply in secondary assumption of the risk cases. The trier of fact considers the “plaintiff’s voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff’s decision to encounter the risk should be characterized as unreasonable” and weighs it against the defendant’s breach of the duty not to increase the risks beyond those inherent in the active sport. (Knight, supra , 3 Cal.4th at p. 314.) Where a plaintiff’s “injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility.” (Ibid.; see Allan, supra , 51 Cal.App.4th at p. 1367.)

A different analysis applies when a skier [*16] signs a written release that expressly holds the ski operator harmless for its own negligence. This triggers the doctrine of express assumption of the risk. Unlike secondary assumption of the risk, but like primary assumption of the risk, the doctrine of express assumption of the risk provides a complete defense in a negligence action.

However, unlike both implied primary and secondary assumption of the risk, which focus on risks inherent in an active sport like skiing, express assumption of the risk focuses on the agreement itself. A valid release “operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action.” (Knight, supra , 3 Cal.4th at p. 309, fn. 4, italics added.) The legal issue in an express assumption of the risk case “‘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.'” (Hass, supra , 26 Cal.App.5th at p. 27.)

Additionally, a plaintiff does not need to have “‘specific knowledge of the particular risk that ultimately caused the injury. [Citation.] If a release of all liability is given, the [*17] release applies to any negligence of the defendant [so long as the negligent act that results in injury is] “‘reasonably related to the object or purpose for which the release is given.'” [Citation.]’ [Citation.] As we have said, ‘[t]he issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release.'” (Cohen, supra , 159 Cal.App.4th at p. 1485; see Allan, supra , 51 Cal.App.4th at p. 1374 [courts will enforce a skier’s agreement “to ‘shoulder the risk’ that otherwise might have been placed” on the ski resort operator].)

To recap, snow skiing has inherent risks, and a ski operator does not owe skiers any duty to protect against them. If a skier is injured as a result of a risk inherent in the sport, [*18] the doctrine of primary assumption of the risk provides a complete defense to a lawsuit against the ski operator. But a ski resort operator owes a duty not to unreasonably increase the risks beyond those inherent in the sport. If a ski operator breaches this duty, the doctrine of secondary assumption of the risk makes the ski resort liable to an injured skier on a comparative fault basis. If the skier executes a release that absolves the ski resort operator of liability for the operator’s negligence, the release is a complete defense, provided the ski operator did not act with gross negligence. That is to say, the ski operator is entitled to judgment as a matter of law if the skier has signed a valid release and the ski operator’s conduct, although negligent, was not grossly negligent.

Analysis

The parties stipulated Tuttle executed the release with full knowledge of its content; consequently, the validity of the release is not before us. The jury unanimously agreed defendant’s conduct did not constitute gross negligence, and plaintiffs do not challenge the sufficiency of the evidence to support that finding; thus, no public policy considerations preclude its enforcement. Our only [*19] concern is “‘whether the release in this case negated the duty element of plaintiffs’ causes of action.'” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719, 183 Cal. Rptr. 3d 234.) If so, it applied to any ordinary negligence by defendant. (Benedek, supra , 104 Cal.App.4th at p. 1357.)

Defendant’s release did precisely that. Tuttle assumed “ALL RISKS associated with [skiing], known or unknown, inherent or otherwise.” She also agreed not to sue defendant and to release it “FROM ALL LIABILITY . . . BASED ON [DEFENDANT’S] ALLEGED OR ACTUAL NEGLIGENCE.” No more was required.

Defendant’s use of the phrase, “inherent or otherwise” did not create any ambiguity or confusion. As the United States Court of Appeals for the Tenth Circuit has recognized, “[t]he term ‘otherwise,’ when ‘paired with an adjective or adverb to indicate its contrary’ . . . is best understood to mean ‘NOT.’ Webster’s Third New Int’l. Dictionary 1598 (2002). The plain language and meaning of the phrases therefore reflect a clear intent to cover risks that are not inherent to skiing.” (Brigance v. Vail Summit Resorts, Inc. (10th Cir. 2018) 883 F.3d 1243, 1256-1257.)

Plaintiffs’ contention that defendant’s release “bears many similarities to the release” in Cohen, supra , 159 Cal.App.4th 1476 misses the mark. The plaintiff in Cohen fell from a rented horse on a guided trail ride. She sued the stable, alleging its employee, the trail guide, negligently [*20] and “unexpectedly provoke[d] a horse to bolt and run without warning” (id. at p. 1492), causing her to lose control of her horse (id. at p. 1482). The trial court granted the defendant’s motion for summary judgment based on the plaintiff’s written agreement “‘to assume responsibility for the risks identified herein and those risks not specifically identified.'” (Id. at p. 1486, italics omitted.)

The Court of Appeal reversed. The Cohen majority noted “the trial court apparently granted summary judgment on the theory that the risks ‘not specifically identified’ in the Release include the risk that misconduct of respondent or its employee might increase a risk inherent in horseback riding.” (Cohen, supra , 159 Cal.App.4th at pp. 1486-1487, italics omitted.) This interpretation was erroneous because the stable’s agreement did not explicitly advise that the plaintiff was releasing the defendant from liability for the defendant’s negligence. Although a release is not required to use “the word ‘negligence‘ or any particular verbiage . . . [it] must inform the releasor that it applies to misconduct on the part of the releasee.” (Id. at pp. 1488-1489.) The release in Cohen used the word “negligence” only once, in reference to the plaintiff’s negligence, not that of the defendant. The stable’s release [*21] also did not “indicate that it covers any and all injuries arising out of or connected with the use of respondent’s facilities.” (Id. at p. 1489.)

Having found the release ineffective to trigger the doctrine of express assumption of the risk, the Cohen majority turned to the doctrines of implied assumption of the risk, i.e., it focused on the inherent risks of horseback riding. Summary judgment could not be granted on that basis, either, because a triable issue of fact existed as to whether the trail guide acted recklessly and increased the inherent risks of a guided horseback ride. (Cohen, supra , 159 Cal.App.4th at p. 1494-1495.)

Here, in contrast, Tuttle assumed all risks associated with her use of defendant’s facilities and expressly released defendant from all liability for its negligence. That language applied to ordinary negligence by defendant and provided a complete defense to plaintiffs’ lawsuit, so long as defendant’s conduct did not constitute gross negligence. (Knight, supra , 3 Cal.4th at pp. 308-309, fn. 4.)

The release in Zipusch, supra , 155 Cal.App.4th 1281 mirrors the one in Cohen, but not the one in this case. As in Cohen, the plaintiff in Zipusch did not agree to assume the risk of negligence by the defendant gym. Accordingly, the agreement was ineffective as an express release; and the issue for the Court [*22] of Appeal was whether the plaintiff’s injury was the result of an inherent risk of exercising in a gym, in which case the primary assumption of the risk doctrine would apply, or whether it was the result of the gym increasing the inherent risks of exercise, in which case the secondary assumption of the risk doctrine would apply. (Id. at pp. 1291-1292.)

Hass, supra , 26 Cal.App.5th 11 is instructive. Plaintiffs cite Hass in their opening brief, but do not attempt to distinguish it, even though the release in Hass is similar to the one Tuttle signed. The analysis in Hass applies in this case.

In Hass, the plaintiffs’ decedent suffered a fatal cardiac arrest after finishing a half marathon organized and sponsored by the defendant. His heirs sued for wrongful death. The Court of Appeal held that cardiac arrest is an inherent risk of running a race, but a triable issue of material fact existed as to whether the defendant acted with gross negligence in failing to provide timely and adequate emergency medical services. (Hass, supra , 26 Cal.App.5th at p. 18.)

Addressing the release, Hass held: “By signing the Release in the instant case, we conclude that [the decedent] intended both to assume all risks associated with his participation in the race, up to and including the risk [*23] of death, and to release [the defendant] (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 [plaintiffs’] wrongful death claim for ordinary negligence.”¹⁰ (Hass, supra , 26 Cal.App.5th at p. 27.)

Our independent examination of defendant’s release convinces us Tuttle assumed all risks that might arise from skiing at defendant’s resort, including risks created by defendant’s ordinary negligence. With a valid release and no gross negligence by defendant, the issue of inherent risk was no longer relevant. (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 353, 235 Cal. Rptr. 3d 716 [where the doctrine of express assumption of risk applies, implied assumption of the risk is no longer considered].)

II.

Enforcement of the Release Does not Violate California’s Public Policy.

Plaintiffs next argue the release‘s exculpatory language violates California’s public policy. The linchpin of their argument is that defendant’s act of unreasonably increasing the inherent risk of an active sport was neither ordinary negligence nor gross negligence, but a separate category of “aggravated” negligence.

Plaintiffs argue Santa Barbara, supra , 41 Cal.4th 747 “left open the question of whether public policy precludes the contractual release [*24] of other forms of ‘aggravated’ misconduct, in addition to gross negligence.” (Some capitalization omitted.) The argument is raised for the first time on appeal; it has no merit.

In Santa Barbara, a parent signed an agreement releasing the defendants from liability for “‘any negligent act'” related to her child’s participation in summer camp. (Santa Barbara, supra , 41 Cal.4th at p. 750.) The child drowned. (Ibid.) The trial court denied the defendants’ motion for summary judgment based on the release, and the appellate court denied defendants’ petition for writ of mandate challenging that ruling. (Id. at p. 753.) The sole issue before the Supreme Court was “whether a release of liability relating to recreational activities generally is effective as to gross negligence.” (Id. at p. 750.)

The defendants argued California law, specifically Civil Code section 1668,¹¹ impliedly allowed recreational activity releases to be enforced against a claim of gross negligence. (Santa Barbara, supra , 41 Cal.4th at pp. 762-763.) At the time, no published California decision “voided[] an agreement purporting to release liability for future gross negligence.” (Id. at p. 758.) The Santa Barbara majority turned to out-of-state authorities and rejected the defendants’ position based on public policy principles. (Id. at pp. 760-762.)

References in Santa Barbara to “aggravated [*25] wrongs” (a term used by Prosser & Keeton, The Law of Torts (5th ed. 1984) § 68, p. 484) (Santa Barbara, supra , 41 Cal.4th at pp. 762, 765, 776) and “aggravated misconduct” (id. at pp. 760, 762, 777, fn. 54) do not suggest a new species of negligence that might affect a liability release for recreational activities. Rather, those phrases encompassed misconduct that included gross negligence and willful acts. (Id. at p. 754, fn. 4.) As the majority held, “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.) With a valid release, “a theory of gross negligence, if supported by evidence showing the existence of a triable issue, is the only negligence-based theory that is potentially open to [the] plaintiffs.” (Santa Barbara, supra , 41 Cal.4th at p. 781.)

Here, no public policy considerations preclude the enforcement of defendant’s recreational activity release that exculpated it from liability for its own ordinary negligence. (Knight, supra , 3 Cal.4th at p. 309, fn. 4.)

III.

The Trial Court did not Err by Entering Judgment in Favor of Defendant.

Plaintiffs argue the trial court should have entered judgment in their favor regardless of the jury’s finding concerning gross negligence because the jury made findings on damages and apportioned fault [*26] between Tuttle and defendant. They contend the responsibility to seek a JNOV or some other post judgment remedy should have fallen to defendant, not plaintiffs. But once the trial court determined the special verdict was not inconsistent and Tuttle’s express release provided a complete defense as a matter of law, entry of a defense judgment was proper. Even if the trial court erred in entering a defense judgment without a formal motion for JNOV, any error was harmless.

Legal Principles Governing Special Verdicts

A special verdict must include “conclusions of fact as established by the evidence . . . [so] that nothing shall remain to the Court but to draw from them conclusions of law.” (Code Civ. Proc., § 624.) A special verdict is not a judgment. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1331-1332, 104 Cal. Rptr. 3d 219, 223 P.3d 77.) If a special verdict includes findings on inconsistent theories, the findings on the legal theory that does not control the outcome of the litigation “may be disregarded as surplusage.” (Baird v. Ocequeda (1937) 8 Cal.2d 700, 703, 67 P.2d 1055.) Additionally, “where no objection is made before the jury is discharged, it falls to ‘the trial judge to interpret the verdict from its language considered in connection with the pleadings, evidence and instructions.'” (Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456-457, 72 Cal. Rptr. 217, 445 P.2d 881; see Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1091-1092, 74 Cal. Rptr. 3d 235.)

The Trial Court’s Ruling

As noted, the jury [*27] was discharged before the parties raised an issue concerning the special verdict form and the jury’s findings. The trial court recognized and fulfilled its duty to interpret the special verdict: “After [this] court rejected several unilateral proposals, the parties stipulated to a special verdict form. . . . But they did so before the court construed the release in response to defendant’s nonsuit motion and before the parties stipulated Ms. Tuttle entered into the release. [¶] Thus, the form presented only two questions addressing the assumption of the risk. Question #3 asked whether defendant unreasonably increased the inherent risks of skiing. Question #4 asked whether defendant acted with gross negligence. [¶] The answer ‘NO’ to either Question #3 or #4 exonerates defendant. Answering ‘No’ to Question #3 would foreclose the only relevant exception to the primary assumption defense. Answering “NO’ to Question #4 would foreclose the only relevant exception to the express assumption defense. [¶] But the form allowed the jurors to answer ‘YES’ to one question and ‘NO’ to [the] other one and continue to answer questions, including determining and allocating damages.” (Italics and bold [*28] omitted.)

The trial court further explained: “Here, the specific finding that defendant did not act with gross negligence controls over the general award of damages. The jury was properly instructed with the definition of gross negligence. The jury received percipient and expert testimony that, if credited, showed defendant did not act with gross negligence. The parties argued whether defendant [did] or did not act with gross negligence. The answer ‘NO’ to Question #4 unambiguously shows the jury found defendant did not act with gross negligence. That resolved the only factual question on the express assumption issue in favor of defendant. [¶] . . . [¶] The award of damages is not a hopeless inconsistency so much as it is mere surplusage once the court honors the jury’s unambiguous finding that defendant acted without gross negligence and draws the legal conclusion—a conclusion that [the] jury was not asked to draw—that the release covers these claims and effects an express assumption of the risk.”

The trial court also correctly concluded the “jury’s findings on Question[] #3 and Question #4 [were not] irreconcilable. The concept of unreasonably increasing inherent risks is distinct [*29] from the concept of gross negligence. In a particular case, the same facts that show an unreasonable increase in the inherent risks may also show gross negligence. [Citation.] Overlap is possible, [but not] necessary. In this case, the jury found no such overlap. There is no inconsistency in defendant losing on the primary assumption issue but prevailing on the express assumption issue. And that, after five weeks of trial, is what happened here.”

Analysis

A validly executed express release of liability for a defendant’s ordinary negligence means the only viable theory for a judgment in a plaintiff’s favor is if the defendant acted with gross negligence. (Santa Barbara, supra , 41 Cal.4th at p. 781.) There is no inconsistency between findings that a defendant is ordinarily negligent by unreasonably increasing the inherent risks of snow skiing, but not grossly negligent. A finding of gross negligence would necessarily mean a defendant unreasonably increased the inherent risks of snow skiing, so that comparative fault principles apply. But an express release, coupled with an undisputed factual finding that a defendant did not act with gross negligence, necessarily results in a defense judgment. Accordingly, Question No. 3 concerning [*30] whether defendant unreasonably increased the inherent risk should have been removed from the special verdict form.

Also, the special verdict form should have instructed the jury that if it found defendant was not grossly negligent, it should not answer the remaining questions. The jury’s compliance with the trial court’s instructions and consequent damages-related findings were surplusage, but did not create an inconsistency with its finding that defendant did not act with gross negligence. The trial court correctly entered judgment in favor of defendant based on the dispositive finding of no gross negligence. The trial court’s explanation of its ruling demonstrates the trial court’s application of the correct legal principles in doing so.

In their appellate opening brief, plaintiffs argue defendant forfeited any objection to the special verdict form because it (1) failed to object to the special verdict before the jury was discharged; (2) invited the erroneous instructions in the special verdict form because it had participated in drafting it; and (3) failed to bring “a statutorily authorized post-trial motion” challenging the special verdict form. Although the special verdict form [*31] should have been amended before deliberations, there is no issue of forfeiture or invited error on defendant’s part.

The parties jointly agreed on the wording of the special verdict form. Any fault in the drafting cannot be assigned to one side over the other, and all parties bear responsibility for the erroneous directions in the stipulated special verdict form. Nothing in the record suggests the special verdict form or the objection to entry of a plaintiffs’ judgment was the product of gamesmanship. (See Lambert v. General Motors (1998) 67 Cal.App.4th 1179, 1183, 79 Cal. Rptr. 2d 657.)

Additionally, plaintiffs’ trial strategy to stipulate to Tuttle’s knowing execution of the release was wise: Evidence Tuttle understood the release was overwhelming. As part of the discussion pertaining to the parties’ stipulation, however, both the trial court and defendant’s trial counsel questioned the adequacy of the special verdict form. But plaintiffs’ trial counsel maintained the special verdict form was fine “as is” and persuasively argued against making any changes or advising the jury of the stipulation. This meant the doctrine of implied secondary assumption of the risk was not relevant unless the jury found defendant acted with gross negligence.

We agree the procedural [*32] aspects surrounding the entry of the defense judgment on what appeared to be a plaintiffs’ verdict were unconventional; but the bottom line is once the jury found no gross negligence, defendant was entitled to judgment as a matter of law. Under these circumstances, it would have been a waste of resources to require defendant, or the trial court on its own initiative, to formally notice a motion for JNOV (Code Civ. Proc., § 629, subd. (a)).

Even if we found the procedure to have been erroneous, the error would have been procedural, not substantive; and, plaintiffs have not demonstrated the likelihood of a different outcome. (See Webb v. Special Electric, Co., Inc. (2016) 63 Cal.4th 167, 179, 202 Cal. Rptr. 3d 460, 370 P.3d 1022 [because the defendant “did not have a complete defense as a matter of law, the entry of JNOV was unjustified [on the merits]. In light of this conclusion, we need not reach plaintiffs’ claims of procedural error”].) Defendant had a complete defense; there is no reasonable probability the trial court would have denied a formal JNOV motion.

Plaintiffs argue they relied on the state of the special verdict form in making the decision to stipulate to the validity of the release agreement. Plaintiffs suggest defendant, by agreeing to the special verdict form, tacitly stipulated to a deviation from [*33] the applicable law to allow plaintiffs to recover damages based solely on a finding defendant had unreasonably increased the inherent risk, notwithstanding the existence of a valid, applicable release. Such an argument is without support in the law. It is also belied by the record. As already discussed, both defendant’s counsel and the trial court raised questions concerning the special verdict form once the parties stipulated to Tuttle’s execution of the release. Plaintiffs’ trial counsel maintained there should be no changes in the jury instructions or the special verdict form.

IV.

Plaintiffs are not Entitled to a New Trial.

Plaintiffs argued in their motion for new trial that the special verdict was “hopelessly contradictory” and, consequently, against the law. Plaintiffs also asserted there were errors in the special verdict form, they “excepted to” those errors, but then were penalized because “the jury’s finding of unreasonably increased inherent risk has ex post facto been deemed insufficient to impose liability on Defendant Heavenly Valley.” Although plaintiffs did not claim instructional error in the trial court, they complained the modified version of CACI No. 431,¹² to which they agreed, [*34] misled the jurors into thinking they could find defendant liable if they found it unreasonably increased the inherent risk of skiing or if they found it acted with gross negligence.

On appeal, plaintiffs ask this court to reverse the denial of their motion for a new trial. They fail to cite applicable authorities to support their arguments. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Instead, they contend “the trial court changed the rules of the game only after the game had already been played, leaving the parties and their counsel without the opportunity to satisfy those new rules, and robbing the jury of the ability to assess all viable liability options.” Plaintiffs add they stipulated to Tuttle’s execution of the release “in reliance on the wording of the then existing Special Verdict form, which . . . made clear that a finding of gross negligence was only one of two disjunctive liability paths, and was not necessary to impose liability against Heavenly. As a consequence, [plaintiffs] . . . were . . . induced into a stipulation concerning that issue in light of the wording of the existing Special Verdict form, an unfair sequence which the trial court itself acknowledged worked against [plaintiffs].” This characterization [*35] misstates the record.

First, the trial court made legal rulings throughout trial when called upon to do so. The trial court did not change any of its pronouncements of law after the trial concluded. The record shows the trial court gave the parties every opportunity to revisit the jury instructions and special verdict form before they were given to the jury.

Second, although the trial court described the sequence of events, it did not suggest the events were unfair or “worked against” plaintiffs. As discussed ante, when the trial court denied defendant’s renewed motion for nonsuit, it advised counsel the jury must decide whether Tuttle actually executed the release. Because neither side proposed jury instructions or questions on the special verdict form addressing the issue of contract formation, defendant’s counsel suggested they should revisit both the jury instructions and the special verdict form. Plaintiffs’ trial counsel immediately stipulated to Tuttle’s execution of the release and advised he would “proceed with the verdict form as is.” This statement calls into question plaintiffs’ claim they were induced into entering into the stipulation.

Third—and significantly—plaintiffs’ [*36] counsel did not discuss disjunctive liability paths in his closing arguments. Instead, plaintiffs’ counsel focused on the evidence and urged the jury to find gross negligence: “What we’re talking about here, the liability of the resort does not fall under this release. And you are not going to be asked any questions on the verdict form about the release. Yeah, [Tuttle] signed one, and she understood the inherent risks of skiing, and that’s what the release
releases. It does not release gross negligence. It does not release what we’re talking about.”

The jury unanimously found defendant did not act with gross negligence. The jury’s function is to make ultimate findings of fact, and it is the trial court’s responsibility to apply the law to the relevant findings of fact. Nothing in the special verdict form misled the jury with regard to the factors it should consider in making any particular finding. We conclude the trial court correctly applied the law and entered judgment accordingly.

DISPOSITION

The judgment and post judgment orders are affirmed. Respondents shall recover costs on appeal.

DUNNING, J.^*

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

Convoluted procedural issues at the trial court, created a ripe field for confusion, but the appellate court held the release bard the claims of the plaintiff in the skier v. skier collision where the ski resort was also sued.

Posted: April 20, 2020 | Author: Recreation Law | Filed under: Assumption of the Risk, California, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: active sport, answered, Assumption of risk, assumption of the risk, Collision, complete defense, Damages, defense counsel, Express Assumption of risk, Express Assumption of the Risk, fault, Gross negligence, Inherent Risk, jurors, jury instructions, matter of law, Ordinary Negligence, parties, plaintiffs', Primary Assumption of the Risk, Public Policy, questions, recreational activity, Release, releases, Risks, secondary assumption, Secondary Assumption of the Risk, Skier, skier v. skier, skiing, snow skiing, snowboarding, special verdict, special verdict form, Sport, Trial court, verdict form | Leave a comment

Once the jury found there was no gross negligence on the part of the plaintiff, the release stopped all other claims of the plaintiff.

Tuttle et al., v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

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

Plaintiff: Grant Tuttle et al

Defendant: Heavenly Valley, L.P.

Plaintiff Claims: negligence

Defendant Defenses: …implied and express assumption of the risk: (1) any injury, loss or damage purportedly sustained… by Plaintiffs was directly and proximately caused and contributed to by risks which are inherent to the activity in which Plaintiffs participated; (2) Plaintiffs either impliedly or expressly relieved Defendant of its duty, if any, to Plaintiffs by knowingly assuming the risk of injury; and (3) defendant is entitled to defense and indemnity of each and every cause of action alleged in the Complaint pursuant to the release agreement signed by Plaintiffs and/or Plaintiffs’ representative or agent.

Holding: For the Defendant

Year: 2020

Summary

Reading the case is confusing. A lot of the decision revolves around stipulated jury special verdict form and how the case was decided at the trial level after the jury rendered a verdict. The verdict was sort of in favor of the plaintiff; however, the stipulated part of the proceedings were used by the judge to hold for the defendant.

The plaintiff, deceased, season pass holder was hit on the slopes by a snowboarder. Her family sued the snowboarder and the ski area. The jury held the ski area was negligent but not grossly negligent. Because the deceased plaintiff had signed a release, the release stopped the negligence claims.

Facts

The jury found the plaintiff negligent, but not grossly negligent. The judge then ruled the release removed the duty on the party of the defendant so therefore the defendant was not liable.

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

The appellate court first looked at the release. The first analysis is what made this case stand out.

You cannot sue, because you assume the inherent risks of a sport. Therefore, a release that only protects the defendant from the inherent risks is worthless, as stated by the court.

To help everyone understand the statement above made by the court, the court reviewed Assumption of the Risk under California law.

The California Supreme Court’s decision in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight) and its progeny have established that a ski resort operator is not liable for injuries caused by risks inherent in the sport of snow skiing. Instead, pursuant to the doctrine of primary assumption of the risk, participants in active sports assume responsibility for injuries sustained as a result of the sport’s inherent risks. Stated another way, the defendant owes no duty of care to protect the plaintiff from the inherent risks of an active sport. Because no duty of care is owed and the plaintiff has assumed the risk of injury, no release is necessary to absolve a defendant of liability when a plaintiff is injured as the result of an inherent risk in an active sport such as skiing.

[Emphasize added]

A ski resort operator still owe[s] a duty, however, not to increase the risks of injury beyond those that are inherent in the sport. This distinction is closely tied to the policy underlying the finding of no duty, i.e., there should be no liability imposed which would chill normal participation or fundamentally alter the nature of the sport, but liability may be appropriate where the risk is not inherent’ in the sport. This is the doctrine of secondary assumption of the risk, and it is an exception to the complete defense of primary assumption of risk.

[Emphasize added]

If a defendant increases the risk to participants, then the defendant is liable for any injury to a participant that occurs because of the increase in risk caused by the defendant. However, a participant may still choose to participate and may still be stopped from suing for injuries received from the increased risk if the participants know of the risks and voluntarily assumes the risk. This is called Secondary Assumption of the Risk.

Comparative fault principles apply in secondary assumption of the risk cases. The trier of fact considers the plaintiff’s voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff’s decision to encounter the risk should be characterized as unreasonable and weighs it against the defendant’s breach of the duty not to increase the risks beyond those inherent in the active sport. Where a plaintiff’s injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility.

Secondary Assumption of the risk is part of the defenses a release provides to a defendant. However, a release provides broader and more defenses then Secondary Assumption of the risk provides. On top of that, by signing a written document, the risk outlined in the release, if any, are assumed by the participant because the document is (and should be) a release and an Express Assumption of the Risk document.

Not all court think exactly along these lines when reviewing releases. However, many do and all courts reach the same conclusion, just by different legal analysis.

However, unlike both implied primary and secondary assumption of the risk, which focus on risks inherent in an active sport like skiing, express assumption of the risk focuses on the agreement itself. A valid release operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action. The legal issue in an express assumption of the risk case is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies, but simply the scope of the Release.’

[Emphasize added]

Assumption of the risk is a great defense. However, a release provides a greater defense, a better defense and should, if properly written to incorporate the defenses available in all types of assumption of the risk.

Additionally, a plaintiff does not need to have specific knowledge of the particular risk that ultimately caused the injury. If a release of all liability is given, the release applies to any negligence of the defendant [so long as the negligent act that results in injury is] reasonably related to the object or purpose for which the release is given.’ we have said, [t]he issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release.’ ([courts will enforce a skier’s agreement to shoulder the risk’ that otherwise might have been placed on the ski resort operator].)

There is one caveat with all of this. If they actions of the defendant in changing the risk, increase the risk to the level of gross negligence, a release in most states does not act to bar gross negligence.

As a matter of public policy, if a skier proves the operator unreasonably increased the inherent risks to the level of gross negligence, express assumption of the risk is no longer a viable defense; and the operator will be liable for damages notwithstanding the existence of a valid release of liability for ordinary negligence.

The court then summed up its review of the defenses of assumption of the risk and release.

[Emphasize added]

In reviewing the release the appellate court found it stopped the negligence claims of the plaintiff.

The court then applied its ruling on the release to the plaintiff’s argument that the defendant was grossly negligent.

The rest of the case then goes on to evaluate the appellate court’s findings and the different way the court came to its ruling at the trial court level.

We agree the procedural aspects surrounding the entry of the defense judgment on what appeared to be a plaintiffs’ verdict were unconventional; however, the bottom line is once the jury found no gross negligence, defendant was entitled to judgment as a matter of law.

The defendant won because the jury did not find the defendant was grossly negligent, and the release stopped all other claims of the plaintiff.

So Now What?

There are several things to learn from this case. The first is the intricacies, procedures and rulings that the trial system has, make any trial a nightmare now days. It is nothing like TV, more like a game of war played out on a board with dozens of books or rules that must be consulted before every move.

The second is the value and power of a release. Even after the plaintiff won the trial, the release came back into to play to defeat the claims of the plaintiff.

Thirdly the education the court provided and copies into this post about assumption of the risk as a defense, the different types of assumption of the risk and how your release should incorporate assumption of the risk.

Make sure your release incorporates assumption of the risk language and is written to protect you in the state where you are doing business for the business you are running.

What do you think? Leave a comment.

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

Soderberg v. Anderson, 922 N.W.2d 200, 2019 Minn. LEXIS 32, 2019 WL 287781

Posted: April 16, 2020 | Author: Recreation Law | Filed under: Assumption of the Risk, Minnesota, Ski Area, Skiing / Snow Boarding | Tags: assume a risk, Assumption of the Risk Doctrine. Comparative Fault, ball, Blind 180, Collisions, Court of Appeals, district court, Doctrine of Primary Assumption of the Risk, Downhill, flying, Hazard, Hockey, instructor, Minnesota Supreme Court, patron's, Primary Assumption of Risk, recreational, rider's, secondary assumption, Secondary Assumption of Risk, Skating, skier v. skier, skier's, skiing, Snowboarder v. Skier, snowboarding, Snowmobiling, Spectator, Sport, Summary judgment, trick | 2 Comments

Soderberg v. Anderson, 922 N.W.2d 200, 2019 Minn. LEXIS 32, 2019 WL 287781

Supreme Court of Minnesota

January 23, 2019, Filed

A17-0827

Reporter

922 N.W.2d 200 *; 2019 Minn. LEXIS 32 **; 2019 WL 287781

Julie A. Soderberg, Respondent, vs. Lucas Anderson, Appellant.

Prior History: [**1] Court of Appeals.

Soderberg v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)

Disposition: Affirmed.

Judgment affirmed.

Counsel: James W. Balmer, Falsani, Balmer, Peterson & Balmer, Duluth, Minnesota; and Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota, for respondent.

Nathan T. Cariveau, Eden Prairie, Minnesota; and John M. Bjorkman, Larson King, LLP, Saint Paul, Minnesota, for appellant.

Brian N. Johnson, Peter Gray, Nilan, Johnson, Lewis, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Ski Areas Association.

Peter F. Lindquist, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, Minnesota; and Thomas P. Aicher, Cleary Shahi & Aicher, P.C., Rutland, Vermont, for amicus curiae National Ski Areas Association.

Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, PLLC, Minneapolis, Minnesota, for amicus curiae Minnesota Defense Lawyers Association.

Matthew J. Barber, James Ballentine, Schwebel, Goetz & Sieben, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Association for Justice.

Judges: Lillehaug, J., Took no part, Anderson, J.

Opinion by: LILLEHAUG

Opinion

[*201] LILLEHAUG, Justice.

In 2016, a ski area outside Duluth, Spirit [**2] Mountain, was the scene of an accident that caused severe injuries to a ski instructor. While teaching a young student, the instructor was struck by an adult snowboarder performing an aerial trick. The instructor sued the snowboarder for negligence, but the district court dismissed her claim based on the doctrine of implied primary assumption of risk, which is a complete bar to tort liability. The court of appeals reversed. Soderberg v. Anderson , 906 N.W.2d 889 (Minn. App. 2018). This appeal requires that we decide, for the first time, whether to extend that doctrine to recreational skiing and snowboarding. We decide not to extend it and, therefore, affirm the court of appeals’ decision, though on different grounds.

FACTS

On the morning of January 3, 2016, appellant Lucas Anderson, age 35, went snowboarding at Spirit Mountain near Duluth. Spirit Mountain welcomes both skiers and snowboarders to enjoy runs marked “easiest,” “more difficult,” and “difficult.” [*202] Anderson considered himself to be an expert snowboarder. He began skiing in elementary school and took up snowboarding when he was 15.

When Anderson snowboarded at Spirit Mountain, he typically warmed up by going down less challenging runs. That morning, Anderson went down part of a “more [**3] difficult” run called Scissor Bill, which merges with an “easiest” run called Four Pipe. As he left Scissor Bill and entered Four Pipe, Anderson slowed down, looked up for other skiers and snowboarders coming down the hill, and proceeded downhill.

Anderson then increased his speed, used a hillock as a jump, and performed an aerial trick called a backside 180. To perform the trick, Anderson—riding his snowboard “regular”—went airborne, turned 180 degrees clockwise, and prepared to land “goofy.”1 Halfway through the trick, Anderson’s back was fully facing downhill. He could not see what was below him.

Respondent Julie Soderberg was below him. A ski instructor employed by Spirit Mountain, she was giving a lesson to a six-year-old child in an area of Four Pipe marked “slow skiing area.” At the moment when Anderson launched his aerial trick, Soderberg’s student was in the center of the run. Soderberg was approximately 10 to 15 feet downhill from, and to the left of, her student. She was looking over her right shoulder at her student.

As Anderson came down from his aerial maneuver, he landed on Soderberg, hitting her behind her left shoulder. Soderberg lost consciousness upon impact. She sustained [**4] serious injuries.

Soderberg sued Anderson for negligence. Anderson moved for summary judgment, arguing that, based on undisputed facts and the doctrine of implied primary assumption of risk, he owed Soderberg no duty of care and was entitled to judgment as a matter of law. The district court granted summary judgment in Anderson’s favor.

The court of appeals reversed and remanded. Soderberg , 906 N.W.2d at 894. Based on its own precedent of Peterson ex rel. Peterson v. Donahue , 733 N.W.2d 790 (Minn. App. 2007), rev. denied (Minn. Aug. 21, 2007), the court of appeals assumed that the doctrine of implied primary assumption of risk generally applies to actions between skiers. Soderberg , 906 N.W.2d at 892. The court then held that material fact issues precluded summary judgment as to whether Soderberg appreciated the risk that she could be crushed from above in a slow skiing area, and whether Anderson’s conduct “enlarged the inherent risks of skiing.” Id. at 893-94. Concluding that the district court erred in granting summary judgment to Anderson, the court of appeals remanded the case to the district court. Id. at 894. We granted Anderson’s petition for review and directed the parties to specifically address whether Minnesota should continue to recognize the doctrine of implied primary assumption of risk.

ANALYSIS

Anderson argues that he [**5] owed no duty of care to Soderberg based on the doctrine of implied primary assumption of risk. HN1[] The doctrine of primary assumption of risk is part of our common law. Springrose v. Willmore , 292 Minn. 23, 192 N.W.2d 826, 827-28 (Minn. [*203] 1971). The application or extension of our common law is a question of law that we review de novo. See Gieseke ex rel. Diversified Water Diversion, Inc. v. IDCA, Inc., 844 N.W.2d 210, 214 (Minn. 2014).

In Springrose, we clarified the distinction between primary and secondary assumption of risk. HN2[] Secondary assumption of risk is an affirmative defense that may be invoked when the plaintiff has unreasonably and voluntarily chosen to encounter a known and appreciated danger created by the defendant’s negligence. Springrose , 192 N.W.2d at 827. Secondary assumption of risk is “an aspect of contributory negligence,” and is part of the calculation of comparative fault. Id.

By contrast, primary assumption of risk is not a defense and applies only in limited circumstances. Daly v. McFarland , 812 N.W.2d 113, 120-21 (Minn. 2012); Springrose , 192 N.W.2d at 827 (explaining that primary assumption of risk “is not . . . an affirmative defense”). Unlike secondary assumption, primary assumption of risk “completely bars a plaintiff’s claim because it negates the defendant’s duty of care to the plaintiff.” Daly , 812 N.W.2d at 119. Therefore, primary assumption of risk precludes liability for negligence, Springrose , 192 N.W.2d at 827, and is not part of the calculation of comparative fault. Primary assumption [**6] of risk “arises ‘only where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks.'” Bjerke v. Johnson , 742 N.W.2d 660, 669 (Minn. 2007) (quoting Olson v. Hansen , 299 Minn. 39, 216 N.W.2d 124, 127 (Minn. 1974)); see Armstrong v. Mailand , 284 N.W.2d 343, 351 (Minn. 1979) (noting that the application of primary assumption of risk “is dependent upon the plaintiff’s manifestation of consent, express or implied, to relieve the defendant of a duty”).

Here, the parties agree that Soderberg did not expressly assume the risk of being hit by Anderson. So the issue is whether she assumed the risk by implication.

We first considered the applicability of the doctrine of implied primary assumption of risk to sporting events in Wells v. Minneapolis Baseball & Athletic Ass’n , 122 Minn. 327, 142 N.W. 706 (Minn. 1913), a case in which a spectator at a baseball game was injured by a fly ball. Id. at 707. We rejected the proposition that spectators assume the risk of injury if seated behind the protective screen between home plate and the grandstand. Id. at 707-08. We determined that the ball club was “bound to exercise reasonable care” to protect them by furnishing screens of sufficient size. Id. at 708 (citation omitted) (internal quotation marks omitted).

Nineteen years later, we held that a spectator assumed the risk of injury of being hit by a foul ball by sitting outside the screened-in area. Brisson v. Minneapolis Baseball & Athletic Ass’n , 185 Minn. 507, 240 N.W. 903, 904 (Minn. 1932). We concluded that the ball club had provided [**7] enough screened-in seating “for the most dangerous part of the grand stand.” Id. We later clarified in Aldes v. Saint Paul Ball Club, Inc., 251 Minn. 440, 88 N.W.2d 94 (Minn. 1958), that HN3[] a baseball patron “assumes only the risk of injury from hazards inherent in the sport, not the risk of injury arising from the proprietor’s negligence.” Id. at 97. Thus, the doctrine applies to “hazards inherent in the sport.” Id.

We applied our flying-baseball cases to flying golf balls in Grisim v. TapeMark Charity Pro-Am Golf Tournament , 415 N.W.2d 874 (Minn. 1987). We held that injury from a flying golf ball was an inherent danger of the sport. Id. at 875. The tournament’s sole duty, we said, was to provide the spectator with “a reasonable [*204] opportunity to view the participants from a safe area.” Id. But we did not say that recreational golfing negligence claims are barred by the doctrine. Nor did we cast doubt on our decision in Hollinbeck v. Downey , 261 Minn. 481, 113 N.W.2d 9, 12-13 (Minn. 1962), which held that if a golfer knows that another person is in the zone of danger, the golfer should either give the other a warning or desist from striking the ball. See Grisim , 415 N.W.2d at 875-76 (distinguishing the facts in Grisim from those in Hollinbeck , 113 N.W.2d at 12-13, and therefore declining to apply Hollinbeck).

We have also extended the doctrine to two forms of ice skating: hockey and figure skating. Flying pucks are part of the inherently dangerous game of hockey, we held in Modec v. City of Eveleth , 224 Minn. 556, 29 N.W.2d 453, 456-57 (Minn. 1947). We stated [**8] that “[a]ny person of ordinary intelligence cannot watch a game of hockey for any length of time without realizing the risks involved to players and spectators alike.” Id. at 455.2

We applied the doctrine to recreational figure skating in Moe v. Steenberg , 275 Minn. 448, 147 N.W.2d 587 (Minn. 1966), in which one ice skater sued another for injuries arising out of a collision on the ice. Id. at 588. We held that the plaintiff “‘assumed risks that were inherent in the sport or amusement in which she was engaged, such as falls and collisions with other skaters. . . .'” Id. at 589 (quoting Schamel v. St. Louis Arena Corp., 324 S.W.2d 375, 378 (Mo. Ct. App. 1959)). But we excluded from the doctrine skating that is “so reckless or inept as to be wholly unanticipated.” Id. Along the same lines, in Wagner v. Thomas J. Obert Enterprises , 396 N.W.2d 223 (Minn. 1986), we counted roller skating among other “inherently dangerous sporting events” in which participants assume the risks inherent in the sport. Id. at 226. We made clear, however, that “[n]egligent maintenance and supervision of a skating rink are not inherent risks of the sport itself.” Id.

Recreational snowmobiling, though, is a different matter. HN4[] We have consistently declined to apply the doctrine to bar claims arising out of collisions between snowmobilers. In Olson v. Hansen , 299 Minn. 39, 216 N.W.2d 124 (Minn. 1974), we observed that, although snowmobiles can tip or roll, such a hazard “is one that can be successfully [**9] avoided. A snowmobile, carefully operated, is no more hazardous than an automobile, train, or taxi.” Id. at 128. Similarly, we “refused to relieve [a] defendant of the duty to operate his snowmobile reasonably and analyzed the defendant’s conduct under the doctrine of secondary assumption of risk.” Daly v. McFarland, 812 N.W.2d, 113, 120-21 (Minn. 2012) (citing Carpenter v. Mattison , 300 Minn. 273, 219 N.W.2d 625, 629 (Minn. 1974)). In 2012, we reaffirmed that snowmobiling is not an inherently dangerous sporting activity. Id. at 121−22.

The closest we have come to discussing the application of implied primary assumption of risk to recreational downhill skiing was in Seidl v. Trollhaugen, Inc., 305 Minn. 506, 232 N.W.2d 236 (Minn. 1975). That case involved a claim by a ski area patron who had been struck by a ski instructor. Id. at 239-40. The cause of action arose before Springrose. Id. at 240 n.1. We did not analyze the question of whether the doctrine of primary assumption of risk applied to recreational skiing and snowboarding. See id. at 240 & n.1. Instead, we affirmed the district court’s decision not to submit to the jury, for lack of evidence, the [*205] issue of secondary assumption of risk. Id. at 240-41.

With this case law in mind, we turn now to the question of whether to follow the example of the court of appeals in Peterson , 733 N.W.2d 790, and extend the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding.3 To do so would relieve [**10] skiers and snowboarders (collectively, “skiers”) of any duty of care owed to others while engaged in their activity. We decide not to do so, for three reasons.

First, although there is no question that skiers can and do collide with one another, the record does not substantiate that injurious collisions between skiers are so frequent and damaging that they must be considered inherent in the sport. As the National Ski Areas Association has recognized through its seven-point Responsibility Code (adopted by Spirit Mountain), skiing and snowboarding contain “elements of risk,” but “common sense and personal awareness can help reduce” them. This recognition counsels against a flat no-duty rule that would benefit those who ski negligently. As the Connecticut Supreme Court has explained, HN5[] “If skiers act in accordance with the rules and general practices of the sport, at reasonable speeds, and with a proper lookout for others on the slopes, the vast majority of contact between participants will be eliminated. The same may not be said of soccer, football, basketball and hockey . . . .” Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 849 A.2d 813, 832 (Conn. 2004). We relied on similar reasoning in our line of recreational snowmobiling cases, in which we noted that [**11] the hazard “is one that can be successfully avoided.” Olson , 216 N.W.2d at 128.

Second, even though today we do not overrule our precedent regarding flying sports objects and slippery rinks, we are loathe to extend the doctrine of implied primary assumption to yet another activity. HN6[] “The doctrine of assumption of risk is not favored, and should be limited rather than extended.” Suess v. Arrowhead Steel Prods. Co., 180 Minn. 21, 230 N.W. 125, 126 (Minn. 1930). Our most recent case considering implied primary assumption of risk, Daly, reflects that reluctance.4 See 812 N.W.2d at 119-22. Similarly, the nationwide trend has been toward the abolition or limitation of the common-law doctrine of implied primary assumption of risk. See Leavitt v. Gillaspie , 443 P.2d 61, 68 (Alaska 1968); 1800 Ocotillo, LLC v. WLB Grp., Inc., 219 Ariz. 200, 196 P.3d 222, 226-28 (Ariz. 2008); Dawson v. Fulton , 294 Ark. 624, 745 S.W.2d 617, 619 (Ark. 1988); P.W. v. Children’s Hosp. Colo., 364 P.3d 891, 895-99, 2016 CO 6 (Colo. 2016); Blackburn v. Dorta , 348 So. 2d 287, 291-92 (Fla. 1977); Salinas v. Vierstra , 107 Idaho 984, 695 P.2d 369, 374-75 (Idaho 1985); Pfenning v. Lineman , 947 N.E.2d 392, 403-04 (Ind. 2011); Simmons v. Porter , 298 Kan. 299, 312 P.3d 345, 354-55 (Kan. 2013); Murray v. Ramada Inns, Inc., 521 So. 2d 1123, 1132-33 (La. 1988); Wilson [*206] v. Gordon , 354 A.2d 398, 401-02 (Me. 1976); Abernathy v. Eline Oil Field Servs., Inc., 200 Mont. 205, 650 P.2d 772, 775-76 (Mont. 1982) (holding that “the doctrine of implied assumption of risk is no longer applicable in Montana”); McGrath v. Am. Cyanamid Co., 41 N.J. 272, 196 A.2d 238, 239-41 (N.J. 1963); Iglehart v. Iglehart , 2003 ND 154, 670 N.W.2d 343, 349-50 (N.D. 2003); Christensen v. Murphy , 296 Ore. 610, 678 P.2d 1210, 1216-18 (Or. 1984); Perez v. McConkey , 872 S.W.2d 897, 905−06 (Tenn. 1994); Nelson v. Great E. Resort Mgmt., Inc., 265 Va. 98, 574 S.E.2d 277, 280-82 (Va. 2003); King v. Kayak Mfg. Corp., 182 W. Va. 276, 387 S.E.2d 511, 517-19 (W. Va. 1989) (modifying the defense “to bring it in line with the doctrine of comparative contributory negligence”); Polsky v. Levine , 73 Wis. 2d 547, 243 N.W.2d 503, 505-06 (Wis. 1976); O’Donnell v. City of Casper , 696 P.2d 1278, 1281−84 (Wyo. 1985).

Third, we are not persuaded that, if we do not apply the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding, Minnesotans will be deterred from vigorously participating and ski operators will be adversely affected. No evidence in the record suggests that the prospect of negligent [**12] patrons being held liable chills participation in skiing and snowboarding. Logically, it seems just as likely that the prospect of an absolute bar to recovery could deter the participation of prospective victims of negligent patrons.5

Although we decline to further extend the doctrine of implied primary assumption of risk, we also decline to overrule our precedent by abolishing the doctrine in its entirety. We ordered briefing on the question of abolition, and we appreciate the well-researched submissions and arguments of the parties and amici. But, as we said in Daly, in which we declined to extend the doctrine to snowmobiling, “‘[w]e are extremely reluctant to overrule our precedent . . . . ‘” 812 N.W.2d at 121 (quoting State v. Martin , 773 N.W.2d 89, 98 (Minn. 2009)). And we still see a role—limited as it may be—for this common-law doctrine in cases involving the sports to which it has been applied.

Because we decline to extend the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding, we need not reach the question of whether the court of appeals, which assumed the doctrine applied,6 erroneously concluded that genuine issues of material fact preclude summary judgment. Instead, we affirm the court [**13] of appeals’ disposition—reversal and remand—on a different ground.

CONCLUSION

For the foregoing reasons, we affirm the decision of the court of appeals.

Affirmed.

ANDERSON, J., took no part in the consideration or decision of this case.

Tuttle et al., v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

Posted: April 9, 2020 | Author: Recreation Law | Filed under: Assumption of the Risk, California, Ski Area, Skiing / Snow Boarding | Tags: active sport, answered, Assumption of risk, assumption of the risk, Collision, complete defense, Damages, defense counsel, Express Assumption of risk, Express Assumption of the Risk, fault, Gross negligence, Inherent Risk, jurors, jury instructions, matter of law, Ordinary Negligence, parties, plaintiffs', Primary Assumption of the Risk, Public Policy, questions, recreational activity, Release, releases, Risks, secondary assumption, Secondary Assumption of the Risk, Skier, skier v. skier, skiing, snow skiing, snowboarding, special verdict, special verdict form, Sport, Trial court, verdict form | 2 Comments

Tuttle et al., v. Heavenly Valley, L.P., 2020 Cal. App. Unpub. LEXIS 814, 2020 WL 563604

Grant Tuttle et al., Plaintiffs and Appellants,

Heavenly Valley, L.P., Defendant and Respondent.

G056427

California Court of Appeals, Fourth District, Third Division

February 5, 2020

NOT TO BE PUBLISHED

Appeal from a judgment and postjudgment orders of the Superior Court of Orange County No. 30-2015- 00813230 Nathan R. Scott, Judge. Affirmed.

The Simon Law Group, Thomas J. Conroy; Williams Iagmin and Jon R. Williams for Plaintiffs and Appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker, Steven R. Parminter, Patrick M. Kelly and John J. Immordino for Defendant and Respondent.

OPINION

DUNNING, J. [*]

INTRODUCTION

Skier and Heavenly Valley season passholder Dana Tuttle died after she and a snowboarder collided at Heavenly Valley’s resort in South Lake Tahoe. Tuttle’s spouse and sons sued Heavenly Valley and the snowboarder.[ 1] Defendant asserted as defenses the doctrines of primary assumption of the risk, on the ground Tuttle’s accident was the result of the inherent risks of skiing, and express assumption of the risk, based on Tuttle’s signed release of all claims and liability for defendant’s negligence.

The trial court determined as a matter of law the release was unambiguous and covered Tuttle’s accident. Despite these conclusions, the jury was still asked to decide whether defendant ;unreasonably increased the risks… over and above those inherent in the sport of skiing. The jury found defendant did, but unanimously agreed defendant did not act with gross negligence. Finding Tuttle and defendant each 50 percent at fault, the jury awarded plaintiffs substantial damages.

Plaintiffs appeal, but do not challenge the jury instructions, the special verdict form, or the finding that defendant did not act with gross negligence. Plaintiffs urge this court to (1) review the release do novo and conclude it does not cover Tuttle’s accident, (2) hold the release violates public policy, (3) find that defendant invited errors in the special verdict form and jury instructions and forfeited the opportunity for entry of judgment in its favor without first formally moving for JNOV, and (4) order a new trial. We find no error, however, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

THE RELEASE

On September 2, 2013, Tuttle purchased a season ski pass from defendant and executed a release.[ 2] The release begins with an all-capital advisement: WARNING, ASSUMPTION OF RISK, RELEASE OF LIABILITY INDEMNIFICATION AGREEMENT PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A RELEASE OF LIABILITY WAIVER OF CERTAIN LEGAL RIGHTS. Salient provisions of the release are found in paragraphs 1, 2, 5, 6, and 13.

In paragraph 1, Tuttle acknowledged snow skiing can be HAZARDOUS AND INVOLVES THE RISK OF PHYSICAL INJURY AND/OR DEATH. In paragraph 2, she ASSUME[D] ALL RISKS… known or unknown, inherent or otherwise [associated with skiing at the resort, including] falling; slick or uneven surfaces; surface and subsurface snow conditions;… variations in terrain; design and condition of man-made facilities and/or terrain features;… [and] collisions. Paragraph 5 advised: The description of the risks listed above is not complete and participating in the Activities may be dangerous and may also include risks which are inherent and/or which cannot be reasonably avoided without changing the nature of the Activities.

Paragraph 6 included Tuttle’s express agreement NOT TO SUE AND TO RELEASE [DEFENDANT] FROM ALL LIABILITY… for… injury or loss to [her], including death. This paragraph specifically advised that Tuttle was releasing all CLAIMS BASED ON [DEFENDANT’S] ALLEGED OR ACTUAL NEGLIGENCE…. In paragraph 13, Tuttle agreed the release was binding to the fullest extent permitted by law… on [her] heirs, next of kin, executors and personal representatives.

II.

THE ACCIDENT AND THE LAWSUIT

Plaintiffs sued defendant and Slater.[ 3] Defendant raised the defenses of implied and express assumption of the risk: (1) any injury, loss or damage purportedly sustained… by Plaintiffs was directly and proximately caused and contributed to by risks which are inherent to the activity in which Plaintiffs participated; (2) Plaintiffs either impliedly or expressly relieved Defendant of its duty, if any, to Plaintiffs by knowingly assuming the risk of injury; and (3) defendant is entitled to defense and indemnity of each and every cause of action alleged in the Complaint pursuant to the release agreement signed by Plaintiffs and/or Plaintiffs’ representative or agent.

III.

THE JURY TRIAL

The jury trial spanned five weeks.[ 4] The week before jury selection, the parties stipulated to a special verdict form that posed two liability questions: (1) whether defendant unreasonably increased the risks to Tuttle over and above those inherent in the sport of skiing and (2) whether defendant was grossly negligent. The special verdict form further instructed the jury that if it answered yes to either question, it was to make findings regarding the amount of damages and allocation of fault. Before the final witness concluded his testimony, the trial court confirmed that counsel were not making any changes to the special verdict form.

The following day, at the close of evidence and outside the jurors’ presence, the trial court denied plaintiffs’ motion for directed verdict and defendant’s renewed motion for nonsuit.[ 5] The trial court rejected plaintiffs’ argument the release was fatally ambiguous with regard to the risks involved in the accident. Given the absence of competent extrinsic evidence regarding the release, the trial court determined its interpretation presented a legal question for the court: So I will construe the release, relying on its plain language. I find that it is not ambiguous. It covers the risks here, most notably in paragraph 2 where it covers risks regarding design and collision, and later where it notes that the risks include injury, including death.

In the trial court’s own words, the finding as a matter of law that the release unambiguously discharged defendant from liability for its own ordinary negligence meant we still have questions for the jury about whether the contract was entered into and whether the defendant[] committed gross negligence that cannot be released. For these reasons, the plaintiffs’ motion for directed verdict is denied.

The rulings prompted defendant’s counsel to suggest additional jury instructions and a revision to the special verdict form might be necessary to address the fact issues surrounding Tuttle’s execution of the release. The following colloquy then ensued: [Plaintiffs’ counsel]: Your Honor I’ll shortcut the whole thing. With the court’s ruling, I’ll stipulate to the formation of the contract and proceed with the verdict form as is, so no need for additional instructions. [¶] [Defendant’s counsel]: I’m sorry. To be clear, we have a stipulation that the contract existed and that the contract included the release and waiver language? [¶] [Plaintiffs’ counsel]: Right. The release and-release of liability and waiver was executed-existed and was executed. That’s the stipulation. [¶] [Defendant’s counsel]: Accepted, your Honor. [¶] The Court: So stipulated. (Italics added.)

At this point, the jurors returned to the courtroom. The trial court read the jury instructions, and plaintiffs’ counsel began his closing argument. He had this to say about the release: What we’re talking about here, the liability of the resort does not fall under this release. And you are not going to be asked any questions on the verdict form about the release. Yeah, [Tuttle] signed one, and she understood the inherent risks of skiing, and that’s what the release releases. It does not release gross negligence. It does not release what we’re talking about.

At the beginning of the afternoon session, before defendant’s closing argument, the trial court and counsel met again outside the jurors’ presence to discuss the stipulation concerning the release. Plaintiffs’ counsel maintained the jury should not hear about the stipulation. When the trial court repeated its concern the jury could end up finding that the release was not valid and invited counsel to revisit the special verdict form, plaintiffs’ counsel replied there was no need as the release in evidence releases negligence. And the questions on the verdict form go[] to gross negligence, and-this doesn’t have to do with the release, but the increase of unreasonable risk. Defendant’s counsel remarked the dialogue this morning, your Honor, was prompted in part by the plaintiffs’ desire not to have to modify further the special verdict form. Plaintiffs’ counsel concurred: Right. Counsel then agreed the stipulation would not be read to the jury.

Closing arguments continued. Defendant’s counsel did not mention the release in his closing argument. Neither did plaintiffs’ counsel in his rebuttal argument. There, he referred to the special verdict form and told the jurors, [a]t the end of the day, it’s a simple exercise. That jury form…. [¶]… If you perceive wrong on the part of [defendant], you tick those two boxes. And there’s two of them-you tick them both. Procedurally, you tick the one about increased unreasonable risk, and then you tick the one about gross negligence. If you perceive wrong, that’s what you do.

The jury was never told the release provided a complete defense to defendant’s ordinary negligence.

IV.

THE SPECIAL VERDICT

3. Did Heavenly Valley do something or fail to do something that unreasonably increased the risks to Dana Tuttle over and above those inherent in the sport of skiing?

Yes X No __

4. Was Heavenly Valley grossly negligent in doing something or failing to do something that caused harm to Dana Tuttle?

Yes __ No X

If you answered Yes’ to either question 3 or 4, then answer question 5. [¶] If you answered No’ to both questions 3 and 4, and also answered No’ to either question 1 or 2, then sign and return this verdict form. You do not need to answer any more questions.

If you answered Yes’ to both questions 1 and 2, and answered No’ to both questions 3 and 4, insert the number 0′ next to Heavenly Valley’s name in question 11, skip question 5, and answer questions 6-11.

5. Was Heavenly Valley’s conduct a substantial factor in causing harm to Dana Tuttle?

Yes X No __

Because the jury answered yes to question 5, it was instructed to answer the remaining questions. The jury determined plaintiffs’ damages were $2, 131, 831, with Tuttle and defendant sharing equal responsibility.

ENTRY OF A DEFENSE JUDGMENT

At the trial court’s direction, plaintiffs’ counsel prepared a proposed judgment awarding plaintiffs $1, 065, 915.50, plus costs and interest. Defendant objected on the basis the jury found defendant was not grossly negligent and the release provided a complete and total defense to this entire lawsuit and Plaintiffs should take nothing.[ 6]

After briefing and a hearing, the trial court sustained defendant’s objection to plaintiffs’ proposed judgment. In its March 9, 2018 order, the trial court reiterated its finding as a matter of law that Tuttle’s release clearly, unambiguously, and explicitly released defendant from future liability for any negligence against Dana Tuttle. The trial court explained its earlier finding concerning the scope of the release still left open fact questions as to whether Tuttle knowingly accepted the release agreement and, if she did, whether defendant acted with gross negligence. With the parties’ stipulation that Tuttle knowingly executed the release and the jury’s factual finding that defendant did not act with gross negligence, the trial court further explained there was only one legal conclusion: [D]efendant has prevailed on the express assumption issue and negate[d] the defendant’s duty of care, an element of the plaintiff’s case.’

The trial court acknowledged the structure of the special verdict form erroneously directed the jury to continue to answer questions on damages after finding defendant had not been grossly negligent. The trial court found, however, the jury’s specific finding that defendant did not act with gross negligence was not inconsistent with, but instead overrode, the award of damages.

The trial court did not invite defendant to file a motion for JNOV or call for the filing of such a motion on its own initiative. Instead, it entered judgment in favor of defendant.

VI.

PLAINTIFFS’ POSTJUDGMENT MOTIONS

The defense judgment reiterated the jury’s special verdict findings and stated in relevant part: It appearing that by reason of those special verdicts, and the Court’s interpretation of the terms of the legal contract in Decedent Dana Tuttle’s season ski pass agreement, and [the] legal conclusions as set forth in that certain Order entered on March 9, 2018, Defendants Heavenly Valley L.P., and Anthony Slater are entitled to judgment on Plaintiffs’ complaint. (Some capitalization omitted.)

Plaintiffs filed a motion to set aside the judgment under Code of Civil Procedure section 663 on the ground the judgment was not consistent with the special verdict and adversely affected plaintiffs’ substantial rights. Plaintiffs also filed a motion for JNOV or, in the alternative, a new trial, on the grounds there was insufficient evidence defendant had not acted with gross negligence, [ 7] the special verdict was hopelessly contradictory because the jury’s gross negligence finding imposed no liability, but its apportionment of fault between Tuttle and defendant did, and defendant invited errors.

The trial court denied plaintiffs’ postjudgment motions. Plaintiffs timely appealed.

DISCUSSION

THE RELEASE COVERED TUTTLE’S ACCIDENT.

The trial court found as a matter of law that defendant’s release was not ambiguous and covered Tuttle’s accident. Our review of the release is de novo. (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754.) No extrinsic evidence concerning the meaning of the release was presented in the trial court, so the scope of a release is determined by [its] express language. (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357 (Benedek).)

Rather than a straightforward argument the trial court erred as a matter of law in interpreting the release, plaintiffs contend the release was narrow in scope and applied only to risks inherent in the sport of snow skiing. But a release that applies only to the inherent risks of a sport is the legal equivalent of no release at all. (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1490 (Cohen); Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1291 (Zipusch).) To understand the distinction, we detour briefly to discuss the doctrines of implied and express assumption of the risk.

OVERVIEW: ASSUMPTION OF THE RISK

The California Supreme Court’s decision in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight)[ 8] and its progeny have established that a ski resort operator is not liable for injuries caused by risks inherent in the sport of snow skiing.[ 9] Instead, pursuant to the doctrine of primary assumption of the risk, participants in active sports assume responsibility for injuries sustained as a result of the sport’s inherent risks. (Id. at p. 321.) Stated another way, the defendant owes no duty of care to protect the plaintiff from the inherent risks of an active sport. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1367 (Allan).) Because no duty of care is owed and the plaintiff has assumed the risk of injury, no release is necessary to absolve a defendant of liability when a plaintiff is injured as the result of an inherent risk in an active sport such as skiing.

A ski resort operator still owe[s] a duty, however, not to increase the risks of injury beyond those that are inherent in the sport. This distinction is closely tied to the policy underlying the finding of no duty, i.e., there should be no liability imposed which would chill normal participation or fundamentally alter the nature of the sport, but liability may be appropriate where the risk is not inherent’ in the sport. (Allan, supra, 51 Cal.App.4th at p. 1367, italics omitted.) This is the doctrine of secondary assumption of the risk, and it is an exception to the complete defense of primary assumption of risk. (Knight, supra, 3 Cal.4th at p. 308.)

Comparative fault principles apply in secondary assumption of the risk cases. The trier of fact considers the plaintiff’s voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff’s decision to encounter the risk should be characterized as unreasonable and weighs it against the defendant’s breach of the duty not to increase the risks beyond those inherent in the active sport. (Knight, supra, 3 Cal.4th at p. 314.) Where a plaintiff’s injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility. (Ibid.; see Allan, supra, 51 Cal.App.4th at p. 1367.)

However, unlike both implied primary and secondary assumption of the risk, which focus on risks inherent in an active sport like skiing, express assumption of the risk focuses on the agreement itself. A valid release operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action. (Knight, supra, 3 Cal.4th at p. 309, fn. 4, italics added.) The legal issue in an express assumption of the risk case 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.’ (Hass, supra, 26 Cal.App.5th at p. 27.)

Additionally, a plaintiff does not need to have specific knowledge of the particular risk that ultimately caused the injury. [Citation.] If a release of all liability is given, the release applies to any negligence of the defendant [so long as the negligent act that results in injury is] reasonably related to the object or purpose for which the release is given.’ [Citation.]’ [Citation.] As we have said, [t]he issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release.’ (Cohen, supra, 159 Cal.App.4th at p. 1485; see Allan, supra, 51 Cal.App.4th at p. 1374 [courts will enforce a skier’s agreement to shoulder the risk’ that otherwise might have been placed on the ski resort operator].)

There is an outer limit to the scope of a release from liability for one’s own negligence in the recreational sports context: As a matter of public policy, if a skier proves the operator unreasonably increased the inherent risks to the level of gross negligence, express assumption of the risk is no longer a viable defense; and the operator will be liable for damages notwithstanding the existence of a valid release of liability for ordinary negligence. (See City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777 (Santa Barbara).)

ANALYSIS

The parties stipulated Tuttle executed the release with full knowledge of its content; consequently, the validity of the release is not before us. The jury unanimously agreed defendant’s conduct did not constitute gross negligence, and plaintiffs do not challenge the sufficiency of the evidence to support that finding; thus, no public policy considerations preclude its enforcement. Our only concern is whether the release in this case negated the duty element of plaintiffs’ causes of action.’ (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719.) If so, it applied to any ordinary negligence by defendant. (Benedek, supra, 104 Cal.App.4th at p. 1357.)

Defendant’s release did precisely that. Tuttle assumed ALL RISKS associated with [skiing], known or unknown, inherent or otherwise. She also agreed not to sue defendant and to release it FROM ALL LIABILITY… BASED ON [DEFENDANT’S] ALLEGED OR ACTUAL NEGLIGENCE. No more was required.

Defendant’s use of the phrase, inherent or otherwise did not create any ambiguity or confusion. As the United States Court of Appeals for the Tenth Circuit has recognized, [t]he term otherwise,’ when paired with an adjective or adverb to indicate its contrary’… is best understood to mean NOT.’ Webster’s Third New Int’l. Dictionary 1598 (2002). The plain language and meaning of the phrases therefore reflect a clear intent to cover risks that are not inherent to skiing. (Brigance v. Vail Summit Resorts, Inc. (10th Cir. 2018) 883 F.3d 1243, 1256-1257.)

Plaintiffs’ contention that defendant’s release bears many similarities to the release in Cohen, supra, 159 Cal.App.4th 1476 misses the mark. The plaintiff in Cohen fell from a rented horse on a guided trail ride. She sued the stable, alleging its employee, the trail guide, negligently and unexpectedly provoke[d] a horse to bolt and run without warning (id. at p.1492), causing her to lose control of her horse (id. at p. 1482). The trial court granted the defendant’s motion for summary judgment based on the plaintiff’s written agreement to assume responsibility for the risks identified herein and those risks not specifically identified.’ (Id. at p. 1486, italics omitted.)

The Court of Appeal reversed. The Cohen majority noted the trial court apparently granted summary judgment on the theory that the risks not specifically identified’ in the Release include the risk that misconduct of respondent or its employee might increase a risk inherent in horseback riding. (Cohen, supra, 159 Cal.App.4th at pp. 1486-1487, italics omitted.) This interpretation was erroneous because the stable’s agreement did not explicitly advise that the plaintiff was releasing the defendant from liability for the defendant’s negligence. Although a release is not required to use the word negligence’ or any particular verbiage… [it] must inform the releasor that it applies to misconduct on the part of the releasee. (Id. at pp. 1488 1489.) The release in Cohen used the word negligence only once, in reference to the plaintiff’s negligence, not that of the defendant. The stable’s release also did not indicate that it covers any and all injuries arising out of or connected with the use of respondent’s facilities. (Id. at p. 1489.)

Having found the release ineffective to trigger the doctrine of express assumption of the risk, the Cohen majority turned to the doctrines of implied assumption of the risk, i.e., it focused on the inherent risks of horseback riding. Summary judgment could not be granted on that basis, either, because a triable issue of fact existed as to whether the trail guide acted recklessly and increased the inherent risks of a guided horseback ride. (Cohen, supra, 159 Cal.App.4th at p. 1494-1495.)

The release in Zipusch, supra, 155 Cal.App.4th 1281 mirrors the one in Cohen, but not the one in this case. As in Cohen, the plaintiff in Zipusch did not agree to assume the risk of negligence by the defendant gym. Accordingly, the agreement was ineffective as an express release; and the issue for the Court of Appeal was whether the plaintiff’s injury was the result of an inherent risk of exercising in a gym, in which case the primary assumption of the risk doctrine would apply, or whether it was the result of the gym increasing the inherent risks of exercise, in which case the secondary assumption of the risk doctrine would apply. (Id. at pp. 1291-1292.)

Hass, supra, 26 Cal.App.5th 11 is instructive. Plaintiffs cite Hass in their opening brief, but do not attempt to distinguish it, even though the release in Hass is similar to the one Tuttle signed. The analysis in Hass applies in this case.

In Hass, the plaintiffs’ decedent suffered a fatal cardiac arrest after finishing a half marathon organized and sponsored by the defendant. His heirs sued for wrongful death. The Court of Appeal held that cardiac arrest is an inherent risk of running a race, but a triable issue of material fact existed as to whether the defendant acted with gross negligence in failing to provide timely and adequate emergency medical services. (Hass, supra, 26 Cal.App.5that p. 18.)

Addressing the release, Hass held: By signing the Release in the instant case, we conclude that [the decedent] intended both to assume all risks associated with his participation in the race, up to and including the risk of death, and to release [the defendant] (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 [plaintiffs’] wrongful death claim for ordinary negligence. [ 10] (Hass, supra, 26 Cal.App.5th at p. 27.)

Our independent examination of defendant’s release convinces us Tuttle assumed all risks that might arise from skiing at defendant’s resort, including risks created by defendant’s ordinary negligence. With a valid release and no gross negligence by defendant, the issue of inherent risk was no longer relevant. (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 353 [where the doctrine of express assumption of risk applies, implied assumption of the risk is no longer considered].)

II.

ENFORCEMENT OF THE RELEASE DOES NOT VIOLATE CALIFORNIA’S PUBLIC POLICY.

Plaintiffs next argue the release’s exculpatory language violates California’s public policy. The linchpin of their argument is that defendant’s act of unreasonably increasing the inherent risk of an active sport was neither ordinary negligence nor gross negligence, but a separate category of aggravated negligence. Plaintiffs argue Santa Barbara, supra, 41 Cal.4th 747 left open the question of whether public policy precludes the contractual release of other forms of aggravated’ misconduct, in addition to gross negligence. (Some capitalization omitted.) The argument is raised for the first time on appeal; it has no merit.

In Santa Barbara, a parent signed an agreement releasing the defendants from liability for any negligent act’ related to her child’s participation in summer camp. (Santa Barbara, supra, 41 Cal.4th at p. 750.) The child drowned. (Ibid.) The trial court denied the defendants’ motion for summary judgment based on the release, and the appellate court denied defendants’ petition for writ of mandate challenging that ruling. (Id. at p. 753.) The sole issue before the Supreme Court was whether a release of liability relating to recreational activities generally is effective as to gross negligence. (Id. at p. 750.)

The defendants argued California law, specifically Civil Code section 1668, [ 11] impliedly allowed recreational activity releases to be enforced against a claim of gross negligence. (Santa Barbara, supra, 41 Cal.4th at pp. 762-763.) At the time, no published California decision voided[] an agreement purporting to release liability for future gross negligence. (Id. at p. 758.) The Santa Barbara majority turned to out-of-state authorities and rejected the defendants’ position based on public policy principles. (Id. at pp. 760-762.)

References in Santa Barbara to aggravated wrongs (a term used by Prosser & Keeton, The Law of Torts (5th ed. 1984) § 68, p. 484) (Santa Barbara, supra, 41 Cal.4th at pp. 762, 765, 776) and aggravated misconduct (id. at pp. 760, 762, 777, fn. 54) do not suggest a new species of negligence that might affect a liability release for recreational activities. Rather, those phrases encompassed misconduct that included gross negligence and willful acts. (Id. at p. 754, fn. 4.) As the majority held, 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.) With a valid release, a theory of gross negligence, if supported by evidence showing the existence of a triable issue, is the only negligence-based theory that is potentially open to [the] plaintiffs. (Santa Barbara, supra, 41 Cal.4th at p. 781.)

III.

THE TRIAL COURT DID NOT ERR BY ENTERING JUDGMENT IN FAVOR OF DEFENDANT.

Plaintiffs argue the trial court should have entered judgment in their favor regardless of the jury’s finding concerning gross negligence because the jury made findings on damages and apportioned fault between Tuttle and defendant. They contend the responsibility to seek a JNOV or some other postjudgment remedy should have fallen to defendant, not plaintiffs. But once the trial court determined the special verdict was not inconsistent and Tuttle’s express release provided a complete defense as a matter of law, entry of a defense judgment was proper. Even if the trial court erred in entering a defense judgment without a formal motion for JNOV, any error was harmless.

LEGAL PRINCIPLES GOVERNING SPECIAL VERDICTS

A special verdict must include conclusions of fact as established by the evidence… [so] that nothing shall remain to the Court but to draw from them conclusions of law. (Code Civ. Proc., § 624.) A special verdict is not a judgment. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1331-1332.) If a special verdict includes findings on inconsistent theories, the findings on the legal theory that does not control the outcome of the litigation may be disregarded as surplusage. (Baird v. Ocequeda (1937) 8 Cal.2d 700, 703.) Additionally, where no objection is made before the jury is discharged, it falls to the trial judge to interpret the verdict from its language considered in connection with the pleadings, evidence and instructions.’ (Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456-457; see Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1091-1092.)

THE TRIAL COURT’S RULING

As noted, the jury was discharged before the parties raised an issue concerning the special verdict form and the jury’s findings. The trial court recognized and fulfilled its duty to interpret the special verdict: After [this] court rejected several unilateral proposals, the parties stipulated to a special verdict form…. But they did so before the court construed the release in response to defendant’s nonsuit motion and before the parties stipulated Ms. Tuttle entered into the release. [¶] Thus, the form presented only two questions addressing the assumption of the risk. Question #3 asked whether defendant unreasonably increased the inherent risks of skiing. Question #4 asked whether defendant acted with gross negligence. [¶] The answer NO’ to either Question #3 or #4 exonerates defendant. Answering No’ to Question #3 would foreclose the only relevant exception to the primary assumption defense. Answering NO’ to Question #4 would foreclose the only relevant exception to the express assumption defense. [¶] But the form allowed the jurors to answer YES’ to one question and NO’ to [the] other one and continue to answer questions, including determining and allocating damages. (Italics and bold omitted.)

The trial court further explained: Here, the specific finding that defendant did not act with gross negligence controls over the general award of damages. The jury was properly instructed with the definition of gross negligence. The jury received percipient and expert testimony that, if credited, showed defendant did not act with gross negligence. The parties argued whether defendant [did] or did not act with gross negligence. The answer NO’ to Question #4 unambiguously shows the jury found defendant did not act with gross negligence. That resolved the only factual question on the express assumption issue in favor of defendant. [¶]… [¶] The award of damages is not a hopeless inconsistency so much as it is mere surplusage once the court honors the jury’s unambiguous finding that defendant acted without gross negligence and draws the legal conclusion-a conclusion that [the] jury was not asked to draw-that the release covers these claims and effects an express assumption of the risk.

The trial court also correctly concluded the jury’s findings on Question[] #3 and Question #4 [were not] irreconcilable. The concept of unreasonably increasing inherent risks is distinct from the concept of gross negligence. In a particular case, the same facts that show an unreasonable increase in the inherent risks may also show gross negligence. [Citation.] Overlap is possible, [but not] necessary. In this case, the jury found no such overlap. There is no inconsistency in defendant losing on the primary assumption issue but prevailing on the express assumption issue. And that, after five weeks of trial, is what happened here.

ANALYSIS

A validly executed express release of liability for a defendant’s ordinary negligence means the only viable theory for a judgment in a plaintiff’s favor is if the defendant acted with gross negligence. (Santa Barbara, supra, 41 Cal.4th at p. 781.) There is no inconsistency between findings that a defendant is ordinarily negligent by unreasonably increasing the inherent risks of snow skiing, but not grossly negligent. A finding of gross negligence would necessarily mean a defendant unreasonably increased the inherent risks of snow skiing, so that comparative fault principles apply. But an express release, coupled with an undisputed factual finding that a defendant did not act with gross negligence, necessarily results in a defense judgment. Accordingly, Question No. 3 concerning whether defendant unreasonably increased the inherent risk should have been removed from the special verdict form.

In their appellate opening brief, plaintiffs argue defendant forfeited any objection to the special verdict form because it (1) failed to object to the special verdict before the jury was discharged; (2) invited the erroneous instructions in the special verdict form because it had participated in drafting it; and (3) failed to bring a statutorily authorized post-trial motion challenging the special verdict form. Although the special verdict form should have been amended before deliberations, there is no issue of forfeiture or invited error on defendant’s part.

The parties jointly agreed on the wording of the special verdict form. Any fault in the drafting cannot be assigned to one side over the other, and all parties bear responsibility for the erroneous directions in the stipulated special verdict form. Nothing in the record suggests the special verdict form or the objection to entry of a plaintiffs’ judgment was the product of gamesmanship. (See Lambert v. General Motors (1998) 67 Cal.App.4th 1179, 1183.)

Additionally, plaintiffs’ trial strategy to stipulate to Tuttle’s knowing execution of the release was wise: Evidence Tuttle understood the release was overwhelming. As part of the discussion pertaining to the parties’ stipulation, however, both the trial court and defendant’s trial counsel questioned the adequacy of the special verdict form. But plaintiffs’ trial counsel maintained the special verdict form was fine as is and persuasively argued against making any changes or advising the jury of the stipulation. This meant the doctrine of implied secondary assumption of the risk was not relevant unless the jury found defendant acted with gross negligence.

We agree the procedural aspects surrounding the entry of the defense judgment on what appeared to be a plaintiffs’ verdict were unconventional; but the bottom line is once the jury found no gross negligence, defendant was entitled to judgment as a matter of law. Under these circumstances, it would have been a waste of resources to require defendant, or the trial court on its own initiative, to formally notice a motion for JNOV (Code Civ. Proc., § 629, subd. (a)).

Even if we found the procedure to have been erroneous, the error would have been procedural, not substantive; and, plaintiffs have not demonstrated the likelihood of a different outcome. (See Webb v. Special Electric, Co., Inc. (2016) 63 Cal.4th 167, 179 [because the defendant did not have a complete defense as a matter of law, the entry of JNOV was unjustified [on the merits]. In light of this conclusion, we need not reach plaintiffs’ claims of procedural error].) Defendant had a complete defense; there is no reasonable probability the trial court would have denied a formal JNOV motion.

Plaintiffs argue they relied on the state of the special verdict form in making the decision to stipulate to the validity of the release agreement. Plaintiffs suggest defendant, by agreeing to the special verdict form, tacitly stipulated to a deviation from the applicable law to allow plaintiffs to recover damages based solely on a finding defendant had unreasonably increased the inherent risk, notwithstanding the existence of a valid, applicable release. Such an argument is without support in the law. It is also belied by the record. As already discussed, both defendant’s counsel and the trial court raised questions concerning the special verdict form once the parties stipulated to Tuttle’s execution of the release. Plaintiffs’ trial counsel maintained there should be no changes in the jury instructions or the special verdict form.

IV.

PLAINTIFFS ARE NOT ENTITLED TO A NEW TRIAL.

Plaintiffs argued in their motion for new trial that the special verdict was hopelessly contradictory and, consequently, against the law. Plaintiffs also asserted there were errors in the special verdict form, they excepted to those errors, but then were penalized because the jury’s finding of unreasonably increased inherent risk has ex post facto been deemed insufficient to impose liability on Defendant Heavenly Valley. Although plaintiffs did not claim instructional error in the trial court, they complained the modified version of CACI No. 431, [ 12] to which they agreed, misled the jurors into thinking they could find defendant liable if they found it unreasonably increased the inherent risk of skiing or if they found it acted with gross negligence.

On appeal, plaintiffs ask this court to reverse the denial of their motion for a new trial. They fail to cite applicable authorities to support their arguments. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Instead, they contend the trial court changed the rules of the game only after the game had already been played, leaving the parties and their counsel without the opportunity to satisfy those new rules, and robbing the jury of the ability to assess all viable liability options. Plaintiffs add they stipulated to Tuttle’s execution of the release in reliance on the wording of the then existing Special Verdict form, which… made clear that a finding of gross negligence was only one of two disjunctive liability paths, and was not necessary to impose liability against Heavenly. As a consequence, [plaintiffs]… were… induced into a stipulation concerning that issue in light of the wording of the existing Special Verdict form, an unfair sequence which the trial court itself acknowledged worked against [plaintiffs]. This characterization misstates the record.

Second, although the trial court described the sequence of events, it did not suggest the events were unfair or worked against plaintiffs. As discussed ante, when the trial court denied defendant’s renewed motion for nonsuit, it advised counsel the jury must decide whether Tuttle actually executed the release. Because neither side proposed jury instructions or questions on the special verdict form addressing the issue of contract formation, defendant’s counsel suggested they should revisit both the jury instructions and the special verdict form. Plaintiffs’ trial counsel immediately stipulated to Tuttle’s execution of the release and advised he would proceed with the verdict form as is. This statement calls into question plaintiffs’ claim they were induced into entering into the stipulation.

Third−and significantly−plaintiffs’ counsel did not discuss disjunctive liability paths in his closing arguments. Instead, plaintiffs’ counsel focused on the evidence and urged the jury to find gross negligence: What we’re talking about here, the liability of the resort does not fall under this release. And you are not going to be asked any questions on the verdict form about the release. Yeah, [Tuttle] signed one, and she understood the inherent risks of skiing, and that’s what the release releases. It does not release gross negligence. It does not release what we’re talking about.

DISPOSITION

The judgment and post judgment orders are affirmed. Respondents shall recover costs on appeal.

WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.

———

Notes:

[*] Retired judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[ 1] We refer to Dana Tuttle as Tuttle and to her spouse and sons collectively as plaintiffs. We refer to Heavenly Valley as defendant.

Plaintiffs erroneously identified Heavenly Valley in the complaint as the Vail Corporation. There is no dispute Heavenly Valley is the correct defendant in this case.

[ 2] Tuttle purchased the ski pass online. No actual signature was required; she signed the release by clicking the appropriate box on the electronic form.

[ 3] The jury exonerated Slater from liability. He is not a party to this appeal.

[ 4] The appellate record is lengthy. Given the limited issues before this court, however, we do not recite the trial evidence in detail.

[ 5] The trial court denied defendant’s first nonsuit motion two days earlier. At that time, the trial judge announced he would be prepared to find as a matter of law that colliding with a snowboarder or colliding with a tree is an inherent risk of skiing, but the jury would decide whether defendant unreasonably increased the inherent risk of the sport.

[ 6] Defendant also requested a statement of decision addressing the applicability of primary implied and express assumption of the risk doctrines; the trial court denied the request. The trial court’s denial of this request is not at issue in this appeal.

[ 7] Plaintiffs do not challenge the sufficiency of the evidence in this appeal.

[ 8] Knight, supra, 3 Cal.4th 296 was a plurality decision authored by Chief Justice George that all members of the court except Justice Kennard subsequently accepted. (Luna v. Vela (2008) 169 Cal.App.4th 102, 107, citing Shin v. Ahn (2007) 42 Cal.4th 482, 491.)

[ 9] Whether a risk is inherent to a particular active sport presents a question of law for the court. (Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 23 (Hass).)

[ 10] So it is here. Paragraph 13 of Tuttle’s release also binds her assignees, subrogors, distributors, heirs, next of kin, executors and personal representatives.

A wrongful death action is not a derivative action. Nonetheless, although an individual involved in a dangerous activity cannot by signing a release extinguish his heirs’ wrongful death claim, the heirs will be bound by the decedent’s agreement to waive a defendant’s negligence and assume all risk. (Ruiz v. Podolsky (2010) 50 Cal.4th 838, 851 852; see Hass, supra, 26 Cal.App.5th at p. 25 [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].)

[ 11] Civil Code section 1668 lists the types of contractual releases that are unenforceable as a matter of public policy (i.e., those exempting 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). Gross negligence is not on the list.

[ 12] Plaintiffs do not challenge the modified version of CACI No. 431 in this court, either. The modified instruction read: If you find that Heavenly Valley unreasonably increased the inherent risks of snow skiing, or that Heavenly Valley was grossly negligent, and also find that Heavenly Valley’s conduct was a substantial factor in causing Dana Tuttle’s harm, then Heavenly Valley is responsible for the harm. Heavenly Valley cannot avoid responsibility just because some other person, condition, or event, including but not limited to Dana Tuttle’s own negligence or the acts of Anthony Slater were also a substantial factor in causing Dana Tuttle’s harm.

———

Ruts left in slope by snowmaking ATV did not rise to the level of recklessness or gross negligence in the Pennsylvania skiing lawsuit.

Posted: February 3, 2020 | Author: Recreation Law | Filed under: Assumption of the Risk, Pennsylvania, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: All Terrain Vehicle, assumption of the risk, ATV, Blue Knob, Blue Knob Recreation, downhill skiing, Exculpatory Language, Gross negligence, Inherent Risk, Pennsylvania Skier Safety Act, recklessness, Release, Ruts, Season Pass Holder, ski area, Snow Making, Sport, sport of downhill skiing, Waiver | Leave a comment

Great review of gross negligence and recklessness law under Pennsylvania law in this decision.

Kibler v. Blue Knob Recreation, Inc., 2018 PA Super 89 (Pa.Super. 2018)

State: Pennsylvania, Superior Court of Pennsylvania

Plaintiff: Patrick Kibler and Kathryn Kibler, Husband and Wife

Defendant: Blue Knob Recreation, Inc., /d/b/a Blue Knob All Seasons Resort, and Blue Knob Resort, Inc.

Plaintiff Claims: Negligence and Gross Negligence

Defendant Defenses: Release

Holding: For Defendant

Year: 2017

Summary

Ruts left on the slope are an inherent risk of skiing and do not rise to gross negligence in Pennsylvania. Plaintiff assumed the risk of his injuries both under the Pennsylvania Skier Safety Act and the release he signed for his pass.

Facts

On March 21, 2014, [appellant] applied for a season ski pass for the 2014-2015 ski season at Blue Knob Ski Resort. [Appellant] signed and dated the season pass/application agreement, which contained [184 A.3d 977] information and guidelines about the Blue Knob season pass.

On December 21, 2014 at 9:00 a.m., [appellant] arrived at Blue Knob to ski with friends. Prior to arriving at the resort, [appellant] learned that five slopes were open to ski. [Appellant] eventually would ski on two of these five open slopes. After skiing down a slope identified as “Lower Mambo,” [appellant] stopped to look for his skiing companions, who were snowboarding on another slope. In an attempt to rejoin them without walking back up the slope, [appellant] intended to ski toward the middle of “Lower Mambo Valley” in order to reach a ski lift. While traversing this area, [appellant] ran over “trenches” he avers were four-to-six inches deep and six-to-eight inches wide, which extended halfway across the ski slope. Defendants’ employees identified the trenches as being caused by an all-terrain-vehicle operated by a resort employee. [Appellant] fell when encountering these trenches, causing him to fracture his left tibia and fibula.

Plaintiff sued for his injuries, and the trial court dismissed his claim on a motion for summary judgment. This was the plaintiff’s appeal.

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

The court first looked at the issues in this appeal from the standpoint of the Pennsylvania Skier Safety Act. The act states that skiers voluntarily assume the risk of the sport. Unlike most other skier safety acts, the Pennsylvania Skier Safety Act does not list the risks the skier assumes. That is left up to the court in each case. This leads to more litigation as each plaintiff is free to argue that the risk that caused his accident is not an inherent risk of skiing and not covered under the Pennsylvania Skier Safety Act.

When reviewing whether a risk is inherent and part of the sport of skiing the Pennsylvania Supreme Court created standards to assist courts in making that decision.

First, this Court must determine whether [appellant] was engaged in the sport of downhill skiing at the time of [his] injury. If that answer is affirmative, we must then determine whether the risk [encountered] is one of the “inherent risks” of downhill skiing, which [appellant] must be deemed to have assumed under the Act. If so, then summary judgment was appropriate because, as a matter of law, [appellant] cannot recover for [his] injuries.

Inherent risks of skiing in Pennsylvania are those “that are ‘common, frequent, or expected’ when one is engaged in a dangerous activity, and against which the defendant owes no duty to protect.”

The court found the plaintiff was engaged in downhill skiing. Downhill skiing has a broad definition under Pennsylvania law.

Obviously, the sport of downhill skiing encompasses more than merely skiing down a hill. It includes those other activities directly and necessarily incident to the act of downhill skiing. Such activities include boarding the ski lift, riding the lift up the mountain, alighting from the lift, skiing from the lift to the trail and, after a run is completed, skiing towards the ski lift to start another run or skiing toward the base lodge or other facility at the end of the day.

To determine if wheel ruts in the slope were a risk in skiing the court turned to a New York decision.

Appellate Division of the New York Supreme Court, and find that wheel ruts in the terrain are an inherent risk to the sport of downhill skiing. Accordingly, we hold that appellants cannot recover damages as a matter of law, and that the trial court properly granted defendants’ motion for summary judgment.

However, the court never found or determined if the Pennsylvania Skier Safety Act prevented the claim. The court then turned to the release the plaintiff signed when he paid for his season pass.

The plaintiff argued the release should be void.

Specifically, appellant avers that the release in question is “not a valid exculpatory release” due to the fact that the release is ambiguous, the release is “without print of a size and boldness that draws the attention of an ordinary person,” and there is no evidence that appellants actually read the release.

The court then looked for the requirements under Pennsylvania law for a release to be valid.

It is generally accepted that an exculpatory clause is valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. [[O]ur supreme court] noted that once an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

Since the release was between the ski area and a skier, it was a private contract and did not contravene public policy. The court then looked at whether the release was enforceable. That standard required the court to:

…construe the release strictly against [defendants] to determine whether it spells out the intention of the parties with particularity and shows to the intent to release [defendants] from liability by express stipulation, recognizing that is [defendants’] burden to establish immunity.”

To be valid in Pennsylvania a release must spell out with particularity the intentions of the parties.

The plaintiff argued the release should be void because:

Appellants first aver that the language of the release was ambiguous. Specifically, appellants allege that the release failed to “clearly and unequivocally intend for the defendant[s] to be relieved from liability, using language understandable to an ordinary and knowledgeable person so participants know what they have contracted away.” Appellants then allege that the release failed include any reference to the risk encountered by appellant. Appellants specifically argue that “the risk [appellant] encountered, i.e. , deep and wide frozen trenches in the middle of a beginner’s slope, are not stated because it is nonsensical to contend such a serious hazard is inherent to the sport.

The plaintiff then argued the release lacked conspicuity and “was without print of a size and boldness that draws the attention of an ordinary person.” The court referred to Pennsylvania Uniform Code, which set froth requirements for contracts and defines what a conspicuous term is:

(i) A heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font or color to the surrounding text of the same or lesser size.

(ii) Language in the body of a record or display in larger type than the surrounding text, in contrasting type, font or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.

The court found the release valid because exculpatory language was preceded by a heading that was written in all caps equal to the size of the text in the exculpatory paragraph. The heading also contained two exclamation points to draw attention to it.

The plaintiff then argued he did not read the release. (That’s his problem no one else’s!) “Our cases provide that “failure to read an agreement before signing it does not render the agreement either invalid or unenforceable.”

The court then reviewed the gross negligence, and reckless conduct claims the plaintiff made. A claim that the actions of the defendant were reckless would not be barred by a release. The court then reviewed the definition of gross negligence.

The general consensus finds [that] gross negligence constitutes conduct more egregious than ordinary negligence but does not rise to the level of intentional indifference to the consequences of one’s acts.” (relying in part on bailment cases and in part on the definition of “gross negligence” as applied to the [Mental Health Procedures Act[9] ] ). Gross negligence may be deemed to be a lack of slight diligence or care compromising a conscious, voluntary act or omission in “reckless disregard” of a legal duty and the consequences to another party. While it is generally true that the issue of whether a given set of facts satisfies the definition of gross negligence is a question of fact to be determined by a jury, a court may take the issue from a jury, and decide the issue as a matter of law, if the conduct in question falls short of gross negligence, the case is entirely free from doubt, and no reasonable jury could find gross negligence.

The court then identified the definition of recklessness.

Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.

Then the court reviewed recklessness as defined by the Restatement (Second) of Torts:

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

Restatement (Second) of Torts § 500 (1965). The Commentary to this Section emphasizes that “[recklessness] must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent.” cmt. a. Further, as relied on in Fitsko, the Commentary contrasts negligence and recklessness:

Reckless misconduct differs from negligence in several important particulars. If differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man…. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of risk, but this difference of degree is so marked as to amount substantially to a difference in kind.

Finally, the court summed up the definitions as:

Recklessness is more than ordinary negligence and more than want of ordinary care; it is an extreme departure from ordinary care, a wanton or heedless indifference to consequences, and indifference whether or not wrong is done, and an indifference to the rights of others

Since the plaintiff could not prove any intentional conduct on the part of the defendant, the actions of the defendant were not reckless or gross negligence.

[Appellants] aver that Defendants’ snow-making crew created the “trenches” by operating an all-terrain-vehicle across part of the ski-slope, rather than entirely along the sides of the slopes.[Footnote 7] While apparently against normal maintenance policy and procedures and arguably negligent, we do not believe these actions amount to gross negligence or recklessness. Defendants’ employees were engaged in the normal and expected process of maintaining the ski slopes and did so in a careless fashion, producing a condition that— although possibly dangerous— was not inherently unexpected upon a ski slope. We view such conduct to be a matter of “… mere inadvertence, incompetence, unskillfulness, or a failure to take precautions” rather than recklessness.

The summary judgement of the trial court dismissing the plaintiff’s claims was upheld.

So Now What?

Anytime you do anything outside of the scope of operations of your competitors you set yourself up for a claim. Using ATV’s on the ski slope rather than a snow machine created that opportunity here for the plaintiff.

The ATV was a vehicle that could be used by the defendant year round and probably saved them money. However, the amount of time their employees spent defendant this claim and responding to the allegations I would guess wiped out that savings.

If you insist and being different, which is necessary for any industry to grow and change, justify the why with thought and reasons that are more than money. In this case, simply grooming after the ATV had passed would have solved the problem.

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

Backing of a lift ticket peeled off by Plaintiff to attach lift ticket to his jacket held by Federal District court to be a release and prevents plaintiffs’ claims for skiing into hidden snow making equipment.

Posted: November 25, 2019 | Author: Recreation Law | Filed under: New Hampshire, Ski Area, Skiing / Snow Boarding | Tags: allegations, argues, backing, court finds, enforceable, grooming, gun, Inherent Risk, injuries, Lift Ticket, Mount, Mount Sunapee Resort, New Hampshire, operators, parties, passenger, peel-off, Public Policy, Reasonable person, recklessness, releases, ski area, Ski Resort, skier's, skiing, Snow, Snow Making, Snow Making Equipment, snowmaking, Summary judgment, Sunapee Difference, Sunapee Difference LLC, ticket, Trail, Tramway, visible, warn | Leave a comment

Five Federal District Courts have ruled that the information on the back of a lift ticket is a release. No state Courts have ruled this way.

Miller v. Sunapee Difference, LLC, 308 F. Supp. 3d 581; 2018 U.S. Dist. LEXIS 55536; 2018 DNH 072

State: New Hampshire, United States District Court for the District of New Hampshire

Plaintiff: Thomas Jackson Miller

Defendant: The Sunapee Difference, LLC d/b/a Mount Sunapee Resort

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the Defendant

Year: 2018

Summary

The plaintiff in this case, a skier at New Hampshire’s Mount Sunapee resort, was injured when he struck a support post for snow making equipment. At issue in this case is whether a release attached to his lift ticket excuses the ski area for liability in connection with its alleged negligence in failing to mark the post, warn skiers about it, or otherwise make it visible.

Facts

Following a large 2015 snowfall, Miller visited Mount Sunapee with his brother and father for a day of skiing. Miller was skiing ahead of his companions through fresh powder on the left side of the Beck Brook trail4 when he struck an unmarked “snow gun holder” that was concealed by snow. The “holder” — essentially a steel pipe protruding from the ground — is a mounting post for snow-making guns. The post remains embedded in the ground after the guns are removed. There was no snow-making gun in the holder at the time of this accident. Miller suffered serious leg injuries in the collision.

The major difference in this case was the lift ticket identified itself as a release. The back of the lift ticket, on the part that peeled away to reveal the sticky section where the lift ticket attached to itself to create a two-sided lift ticket stated:

In order to ski at Mount Sunapee, Miller first purchased a lift ticket. The ticket has a self-adhesive backing, which the skier affixes to his zipper tab or similar visible location. In order to attach it, the skier must first remove it from a peel-off backing. Printed on the back of the peel-off backing of the Mount Sunapee lift ticket was the following:

STOP

YOU ARE RELEASING THIS SKI AREA FROM LIABILITY

By removing this peel-off backing and using this ticket, you agree to be legally bound by the LIABILITY RELEASE printed on the other side of this ticket. If you are not willing to be bound by this LIABILITY RELEASE, please return this ticket with the peel-off backing intact to the ticket counter for a full refund.

The Lift Ticket itself stated:

LIABILITY RELEASE

Skiing, snowboarding, and other winter sports are inherently dangerous and risky with many hazards that can cause injury or death. As purchaser or user of this ticket, I agree, as a condition of being allowed to use the facilities of the Mount Sunapee resort, to freely accept and voluntarily assume all risks of property damage, personal injury, or death resulting from their inherent or any other risks or dangers. I RELEASE MOUNT SUNAPEE RESORT, its parent companies, subsidiaries, affiliates, officers, directors, employees and agents FROM ANY AND ALL LIABILITY OF ANY KIND INCLUDING NEGLIGENCE which may result from conditions on or about the premises, operation of the ski area or its afacilities [sic] or from my participation in skiing or other winter sports, accepting for myself the full and absolute responsibility for all damages or injury of any kind which may result from any cause. Further I agree that any claim which I bring against Mount Sunapee Resort, its officers, directors, employees or agents shall be brought only in Federal or State courts in the State of New Hampshire. I agree my likeness may be used for promotional purposes.

MOUNT SUNAPEE CARES, SKI RESPONSIBLY AND ALWAYS IN CONTROL.

RECKLESS SKIING WILL RESULT IN LOSS OF TICKET

NON-TRANSFERABLE: Use by a non-purchaser constitutes theft of services.

NON-REFUNDABLE. LOST TICKETS WILL NOT BE REPLACED Mount Sunapee Resort, P.O. Box 2021, Newbury, NH 03255

The language on this lift ticket specifically stated that it was a release, not just a lift ticket and not just a warning.

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

The court first looked at New Hampshire law on releases.

Such an exculpatory contract is enforceable if: 1) it does not violate public policy; 2) the plaintiff understood the import of the agreement or a reasonable person in [plaintiff’s] position would have understood the import of the agreement; and 3) the plaintiff’s claims fall within the contemplation of the parties when they executed the contract.

The plaintiff argued that the release was void because it violated public policy, and a reasonable person would only understand that the release applied to the inherent risks of skiing.

New Hampshire public policy requires a showing that no special relationship exists between the parties to the agreement and there is no disparity in the bargaining power between the parties. The New Hampshire Supreme Court found that an agreement would violate public policy if “it is injurious to the interests of the public, violates some public statute, or tends to interfere with the public welfare or safety.”

The plaintiff admitted that there was no special relationship between the parties nor was there a disparity of bargaining power. He centered his public policy argument on the theory that the release violated New Hampshire statutory law and that the release was injurious so the public interest. The statutory law argument was based on the New Hampshire Ski Area Act. The Act requires ski area operators to mark visible man-made objects. This object was not visible so therefor the plaintiff argued it should be marked and therefore, was negligence not to pad or mark it. However, the court would not buy into adding language to the statute where none existed. On top of that another section of the statute specially stated a ski assumes the risks of hitting snow making equipment.

The next argument advanced to argue the release violated public policy was based on several prior court decisions that held there was a duty on the state to do things. However, here again, the court found the was no duty in the New Hampshire Ski Area Act other than found in the plain language of the act. The duty the plaintiff was attempting to create was based on tying different sections of the act together that were not related.

The final public policy argument was because the ski area, Mount Sunapee was located on state-owned land and developed with federal funding, that created a greater duty to the public. However, the plaintiff could not provide any support for this theory, other than arguing sections of the lease between the ski area, and the state required it. The court found there was no language in the lease that created supported a public policy argument.

In most states, to create a contract, there are several requirements. One of those is there must be a meeting of the minds. A meeting of the minds requires the parties to know they are entering into a contract and the general terms of the agreement. This was clearly not the case in this situation (and in most lift ticket cases); however, New Hampshire does not require a meeting of the minds to enforce a contract.

The plaintiff then argued that without a signature, there could be a release. However, New Hampshire had a lot of case law where unsigned contracts were enforced.

The plaintiff argued he did not have an opportunity to read the release. However, that does not matter in New Hampshire and in most states when you sign it. However, here there was no signature.

A plaintiff’s failure to read a release “does not preclude enforcement of the release.” As long as the plaintiff had an opportunity to read the release, even if he chooses not to take it, a release can be enforced.

Here the court sort of worked its way around that issue because it found the plaintiff was a personal injury attorney. The plaintiff had submitted affidavits on the issue, which the court found lacking in the information needed to support the plaintiff’s arguments. The court did hammer plaintiff’s counsel at oral argument until plaintiff’s counsel admitted he had the opportunity to read it if he wanted.

Another issue is what the parties were contemplating when they made the agreement. A requirement for a contract under New Hampshire law. The court found the language of the release, which it had earlier found valid, contained the necessary information to define what the intention of the release was.

If “the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence, the agreement will be upheld.” Id. The court gives the language of the release “its common meaning and give[s] the contract itself the meaning that would be attached to it by a reasonable person.” Id. “All that is required” is for the language to “clearly and specifically indicate[] the intent to release the defendants from liability for personal injury caused by the defendants’ negligence . . . .”

The court then went into the Reckless, Wanton or positive misconduct claims of the plaintiff. New Hampshire has adopted the Restatement of Torts definition of Reckless.

Under the Restatement [(Second) of Torts], § 500, at 587 (1965), conduct is “reckless” if it “would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such a risk is substantially greater than that which is necessary to make his conduct negligent.” Id. The conduct “must involve an easily perceptible danger of death or substantial physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence.”

The court further defined reckless under New Hampshire law as:

…at a minimum, is conduct “where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and becomes in the mind of the actor a substantial certainty.

However, the court found that the pleadings of the plaintiff pled no more than simple negligence. Meaning the facts argued by the plaintiff did not rise to the level needed to create a recklessness claim.

The court summed up its analogy as:

The undisputed factual record shows that plaintiff purchased and affixed to his clothing a lift ticket at Mount Sunapee that unambiguously released the ski area from liability from its own negligence, that such a release does not violate public policy, and that plaintiff’s signature was not required to effectuate its terms. Furthermore, there is no material factual dispute that plaintiff had the opportunity to read both the cautionary language on the ticket’s peel-off backing and the release language itself, that he would have understood that language to constitute a release and that a reasonable person in his position would have understood that the release exculpated Mount Sunapee from its own negligence.

So Now What?

It seemed obvious that this court was going to hold for the ski area. The decision explored all the arguments and possible arguments the plaintiff’s made and then ruled for the defendants.

The back of the pass had more than normal warning language as required by most statutes. This peel away release stated it was a release. There is also an issue that the purchaser of the lift ticket had already paid for the ticket before they found out there was a release giving rise to misrepresentation and fraud claim may be.

What is interesting is the change in the past five year, only in Federal District Courts holding that a lift ticket is a valid release at least mentioning the lift ticket as more than a receipt or a pass to access the lifts.

For more articles about Lift Tickets being used to stop lawsuits at ski areas see:

Lift tickets are not contracts and rarely work as a release in most states http://rec-law.us/1bO85eU

Colorado Federal District Court judge references a ski area lift ticket in support of decision granting the ski area’s motion for summary judgment and dismissing the lawsuit. http://rec-law.us/2vHUXf1

#BoycottNH New Hampshire charges for Search & Rescue. Do not recreate in New Hampshire

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

Miller v. Sunapee Difference, LLC, 308 F. Supp. 3d 581; 2018 U.S. Dist. LEXIS 55536; 2018 DNH 072

Posted: November 19, 2019 | Author: Recreation Law | Filed under: New Hampshire, Ski Area, Skiing / Snow Boarding | Tags: allegations, argues, backing, court finds, enforceable, grooming, gun, Inherent Risk, injuries, Lift Ticket, Mount, Mount Sunapee Resort, New Hampshire, operators, parties, passenger, peel-off, Public Policy, Reasonable person, recklessness, Release, releases, ski area, skier's, skiing, Snow, Snow Making, Snow Making Equipment, snowmaking, Summary judgment, Sunapee Difference, Sunapee Difference LLC, ticket, Trail, Tramway, visible, Waiver, warn | Leave a comment

Miller v. Sunapee Difference, LLC, 308 F. Supp. 3d 581; 2018 U.S. Dist. LEXIS 55536; 2018 DNH 072

United States District Court for the District of New Hampshire

March 31, 2018, Decided; March 31, 2018, Filed

Civil No. 16-cv-143-JL

Counsel: [**1] For Thomas Jackson Miller, Plaintiff: Arend R. Tensen, Cullenberg & Tensen, Lebanon, NH.

For The Sunapee Difference, LLC, doing business as Mount Sunapee Resort, other Mount Sunapee Resort, Defendant: Thomas B.S. Quarles, Jr., LEAD ATTORNEY, Brendan P Mitchell, Devine Millimet & Branch PA, Manchester, NH.

Judges: Joseph N. Laplante, United States District Judge.

Opinion by: Joseph N. Laplante

Opinion

[*584] MEMORANDUM ORDER

The plaintiff in this case, a skier at New Hampshire’s Mount Sunapee resort, was injured when he struck a support post for snow making equipment. At issue in this case is whether a release attached to his lift ticket excuses the ski area for liability in connection with its alleged negligence in failing to mark the post, warn skiers about it, or otherwise make it visible.

Invoking the court’s diversity jurisdiction, 28 U.S.C. § 1332(a), plaintiff Thomas Jackson Miller, a New York resident, sued The Sunapee Difference, LLC, operator of the Mount Sunapee Resort (“Mount Sunapee”), a New Hampshire ski area, for injuries he sustained when he struck the unmarked and unpadded post that was concealed by fresh snow. Pursuant to Fed. R. Civ. P. 12(c), Mount Sunapee moved for judgment on the pleadings, arguing that the liability release printed on Miller’s [**2] lift ticket bars his claim. Miller argues that the release is unenforceable under New Hampshire law and inapplicable on its face. As both sides submitted [*585] documents outside the pleadings in litigating this motion, the court has, with the parties’ consent,¹ converted the motion into one for summary judgment under Fed. R. Civ. P. 12(d).² Having considered the parties’ filings and hearing oral argument, the court finds that the release is both applicable and enforceable, and therefore grants summary judgment in favor of Mount Sunapee.³

I. Applicable legal standard

Summary judgment is appropriate when the record reveals “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When ruling on a motion for summary judgment, the court “constru[es] the record in the light most favorable to the nonmoving party and resolv[es] all reasonable inferences in that party’s favor.” Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014). In the summary judgment analysis, “a fact is ‘material’ if it has the potential of determining the outcome of the litigation.” Maymi v. P.R. Ports. Auth., 515 F.3d 20, 25 (1st Cir. 2008). A factual dispute is genuine “if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party.” Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996) (citation and [**3] internal quotation marks omitted). Nevertheless, if the nonmoving party’s “evidence is merely colorable, or is not significantly probative,” no genuine dispute as to a material fact has been proved, and “summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (citations omitted).

II. Background

Following a large 2015 snowfall, Miller visited Mount Sunapee with his brother and father for a day of skiing. Miller was skiing ahead of his companions through fresh powder on the left side of the Beck Brook trail⁴ when he struck an unmarked “snow gun holder” that was concealed by snow. The “holder” — essentially a steel pipe protruding from the ground — is a mounting post for snow-making guns. The post remains embedded in the ground after the guns are removed. There was no snow-making gun in the holder at the time of this accident. Miller suffered serious leg injuries in the collision.

In order to ski at Mount Sunapee, Miller first purchased a lift ticket. The ticket has a self-adhesive backing, which the skier affixes to his zipper tab or similar visible location. In order to attach it, the skier must first remove it from a peel-off backing. Printed on the back of the peel-off backing of the Mount Sunapee lift ticket [**4] was the following:

[*586] STOP

[a red octagon image similar to a traffic-control “stop sign”]

YOU ARE RELEASING THIS SKI AREA FROM LIABILITY

The lift ticket itself displayed the following language:

LIABILITY RELEASE

Skiing, snowboarding, and other winter sports are inherently dangerous and risky with many hazards that can cause injury or death. As purchaser or user of this ticket, I agree, as a condition of being allowed to use the facilities of the Mount Sunapee resort, to freely accept and voluntarily assume all risks of property damage, personal injury, or death resulting from their inherent or any other risks or dangers. I RELEASE MOUNT SUNAPEE RESORT, its parent companies, subsidiaries, affiliates, officers, directors, employees and agents FROM ANY AND ALL LIABILITY OF ANY KIND INCLUDING NEGLIGENCE which may result from conditions on or about the premises, operation of the ski area [**5] or its afacilities [sic] or from my participation in skiing or other winter sports, accepting for myself the full and absolute responsibility for all damages or injury of any kind which may result from any cause. Further I agree that any claim which I bring against Mount Sunapee Resort, its officers, directors, employees or agents shall be brought only in Federal or State courts in the State of New Hampshire. I agree my likeness may be used for promotional purposes.

MOUNT SUNAPEE CARES, SKI RESPONSIBLY AND ALWAYS IN CONTROL.

RECKLESS SKIING WILL RESULT IN LOSS OF TICKET

NON-TRANSFERABLE: Use by a non-purchaser constitutes theft of services.

NON-REFUNDABLE. LOST TICKETS WILL NOT BE REPLACED Mount Sunapee Resort, P.O. Box 2021, Newbury, NH 03255

(Emphasis in original).

After timely filing this lawsuit,⁵ Miller filed an Amended Complaint⁶ asserting a single count of negligence. He alleges that Mount Sunapee failed to mark or warn skiers of the pipe, or otherwise mitigate its danger to skiers, by, for example, padding it or making it visible to skiers. In addition, Miller alleges that Mount Sunapee breached its duties to create a safe environment for guests, and to perform in-season trail maintenance [**6] work. Finally, Miller claims that Mount Sunapee is liable because it failed to comply with N.H. Rev. Stat. Ann. § 225-A:23 (II)(b), which provides, in relevant part, that “[t]he ski area operator shall warn skiers and passengers by use of the trail board, if applicable, that snow grooming or snow making operations are routinely in progress on the slopes and trails serviced by each tramway.”⁷

[*587] III. Analysis

As noted at the outset, Sunapee argues that the release printed on Miller’s lift ticket — in combination with the acceptance of its terms on the backing sheet — bars his claim. “Although New Hampshire law generally prohibits a plaintiff from releasing a defendant from liability for negligent conduct, in limited circumstances a plaintiff can expressly consent by contract to assume the risk of injury caused by a defendant’s negligence.” Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 413, 807 A.2d 1274 (2002). Such an exculpatory contract is enforceable if: 1) it does not violate public policy; 2) the plaintiff understood the import of the agreement or a reasonable person in [plaintiff’s] position would have understood the import of the agreement; and 3) the plaintiff’s claims fall within the contemplation of the parties when they executed the contract. McGrath v. SNH Dev., Inc., 158 N.H. 540, 542, 969 A.2d 392 (2009) (citing Dean v. MacDonald, 147 N.H. 263, 266-67, 786 A.2d 834 (2008)); Lizzol v. Brothers Prop. Mgmt. Corp., 2016 DNH 199, *7.

Plaintiff argues that the [**7] release satisfies none of these criteria, because: 1) it violates public policy; 2) a reasonable person would have understood the release to exclude only “inherent risks of skiing,” as enumerated in New Hampshire’s “ski statute,” N.H. Rev. Stat. Ann. § 225-A:24; 3) the release does not encompass reckless, wanton, or willful conduct; and 4) the release is unsigned.

A. Public policy

“A defendant seeking to avoid liability must show that an exculpatory agreement does not contravene public policy; i.e., that no special relationship existed between the parties and that there was no other disparity in bargaining power.” McGrath, 158 N.H. at 543 (quoting Barnes v. N.H. Karting Assoc., 128 N.H. 102, 106, 509 A.2d 151 (1986)). The New Hampshire Supreme Court has also found an agreement to be against public policy “if, among other things, it is injurious to the interests of the public, violates some public statute, or tends to interfere with the public welfare or safety.” Id. (citing Harper v. Healthsource New Hampshire, 140 N.H. 770, 775, 674 A.2d 962 (1996)). Miller does not argue that he had a special relationship with Mount Sunapee or that there was a disparity in bargaining power between the two.⁸ Instead, he confines his public policy argument to two points: 1) that the release violates New Hampshire statutory law; and 2) that it is injurious to the interest of the public. Neither argument [**8] withstands scrutiny.

1. New Hampshire statutory law

Miller argues that the combination of N.H. Rev. Stat. Ann. §§ 225-A:23, II, and 225-A:24 requires ski area operators to plainly mark or make visible snow-making equipment. Therefore, he concludes, applying the release to the allegedly hidden snow gun holder would allow Mount Sunapee to impermissibly evade this statutory responsibility. As a general proposition, Miller is correct that a release can not excuse a ski area‘s statutory violation. Harper, 140 N.H. at 775; cf. Nutbrown v. Mount Cranmore, 140 N.H. 675, 683, 671 A.2d 548 (1996) (noting, in ski accident case, that ski areas’ immunity does not apply to claim based on statutory violation). However, Miller’s argument here is built on a faulty premise — that [*588] § 225-A:24, denoted “Responsibilities of Skiers and Passengers” — imposes an affirmative duty on ski areas to mark or make visible snow-making equipment. The court rejects this argument for several reasons.

First, Miller attempts, without legal support, to create an affirmative duty out of the text of § 225-A:24 where none exists. Section 225-A:24 “is an immunity provision for ski area operators.” Cecere v. Loon Mountain Recreation Corp., 155 N.H. 289, 291, 923 A.2d 198 (2007). It has been “interpreted to mean that ski area operators owe no duty to skiers to protect them from the inherent risks of skiing.” Rayeski v. Gunstock Area/Gunstock Area Comm’n, 146 N.H. 495, 497, 776 A.2d 1265 (2001). One of the inherent “risks, hazards, or dangers which [**9] the skier . . . assumes as a matter of law” is “plainly marked or visible snow making equipment.” N.H. Rev. Stat. Ann. § 225-A:24, I. Miller argues that because unmarked or not visible snow-making equipment is not “an inherent risk” enumerated by the statute, ski areas therefore have a statutory duty to mark them or make them visible.

This argument is both contrary to the language of the statute and unsupported by any legal authority. While the language of the statutory immunity provision — enumerating a “Skier’s Responsibilities” — arguably does not bar Miller’s claim⁹ that he struck an unmarked and not visible piece of equipment, it likewise creates no affirmative duties for ski areas. Stated differently, while New Hampshire law may allow
ski area liability for injuries resulting from collisions with unmarked equipment, it does not logically follow that New Hampshire law requires the marking of such equipment. The statute sets forth no such obligation or legal duty.

To avoid the plain language of §225-A:24, Miller argues that Rayeski, supra, imposes an affirmative duty on Mount Sunapee when read in conjunction with § 225-A:23. In that case, the New Hampshire Supreme Court, invoking §225-A:24, upheld the dismissal of a skier’s claim for injuries sustained [**10] in a collision with an unmarked light pole. 146 N.H. at 500. The plaintiff in Rayeski argued that the light pole collision was similar to a collision with unmarked snow-making equipment, which the statute “implies . . . is not an inherent risk of skiing” by not barring such a claim. Id. at 498. In the course of finding that the pole collision was an inherent risk of skiing (despite not being specifically enumerated as such in the statute), the Court distinguished between poles and snow making equipment:

We conclude that the legislature’s explicit reference to “plainly marked or visible snow making equipment” was intended to balance the immunity granted to ski area operators under RSA 225-A:24 with their duty under RSA 225-A:23, II(b) (2000) to warn skiers of snow making or grooming activities by denying immunity to ski area operators who breach a statutorily imposed safety responsibility.

Id. (emphasis added).

Based on the emphasized language, Miller argues that § 225-A:23 required Mount Sunapee to mark or make visible the snow gun holder he struck. This argument ignores the plain language both of Rayeski and the statute. The Rayeski
opinion referred only to “snow making or grooming activities,” and made no reference to marking equipment. And [**11] the statute, captioned “Base Area; Information to Skiers and [*589] Passengers,” requires that a ski area operator “warn skiers and passengers by use of the trail board, if applicable, that snow grooming or snow making operations are routinely in progress on the slopes and trails serviced by each tramway.” (Emphasis added). Thus, contrary to Miller’s argument, this section imposes no requirement to “mark or make visible” the snow gun holder at issue in this case. Instead, the statute requires the ski area to post “at the base area” a warning concerning grooming and snowmaking operations, if applicable.¹⁰See Nardone v. Mt. Cranmore, Civ. No. 91-114-SD, slip op. at 6-7 (holding that § 225-A:23, II(b)‘s warning requirement does not apply where snowmaking was not in progress and where plaintiff collided with fixed, unmarked piece of snowmaking equipment) (emphasis added).¹¹ Miller does not dispute Mount Sunapee’s contention that there was no grooming or snow making “in progress” at the time of or in the vicinity of Miller’s accident.¹² An inoperative snow gun holder is neither an “activity” nor an “operation.”

Further undermining Miller’s argument that § 225-A:24 creates obligations for ski area
operators is the fact that [**12] its five sub-sections are explicitly and unambiguously addressed to skiers and passengers (as opposed to ski area
operators), as follows: I) “Each person who participates in the sport of skiing . . . accepts . . . the dangers inherent in the sport . . . .”; II) “Each skier and passenger shall have the sole responsibility . . . “; III) “Each skier or passenger shall conduct himself or herself . . .”; IV) “Each passenger shall be the sole judge of his ability . . .”; V) “No skier or passenger or other person shall . . .” N.H. Rev. Stat. Ann. § 225-A:24, I-V (emphasis added).

In addition, under New Hampshire statutory construction law, “[t]he title of a statute is ‘significant when considered in connection with . . . ambiguities inherent in its language.'” Appeal of Weaver, 150 N.H. 254, 256, 837 A.2d 294 (2003) (quoting State v. Rosario, 148 N.H. 488, 491, 809 A.2d 1283 (2002); see also, Berniger v. Meadow Green-Wildcat Corp., 945 F.2d 4, 9 (1st Cir. 1991) (interpreting N.H. Rev. Stat. Ann. § 225-A:24 and observing that “[i]t is well established that a statute’s title may aid in construing any ambiguities in a statute.”). As noted, the title of § 225-A:24 is explicitly directed at “skiers and passengers,” not ski area operators. While this court discerns no such ambiguity that would justify a foray into ascertaining “legislative intent,” our Court of Appeals has stated that “the title indicates the legislative intent to limit the application [**13] of [§ 225-A:24] to skiers and passengers and similar classes of individuals, which does not include a ski operator or its employees.” Berniger, 945 F.2d at 9 (1st Cir. 1991). This conclusion is buttressed by the fact that the preceding provision, § 225-A:23, is captioned “Responsibilities of Ski Area Operators,” further [*590] suggesting § 225-A:24‘s inapplicability here. This statutory structure — clearly distinguishing ski area operator responsibilities from visitor responsibilities — is especially important in light of the New Hampshire Supreme Court’s requirement that statutes be construed “as a whole.” Petition of Carrier, 165 N.H. 719, 721, 82 A.3d 917 (2013); see also, Univ. of Texas Sw. Med. Ctr v. Nassar, 570 U.S. 338, 133 S. Ct. 2517, 2529, 186 L. Ed. 2d 503 (2013) (“Just as Congress’ choice of words is presumed to be deliberate, so too are its structural choices.”); DeVere v. Attorney General, 146 N.H. 762, 766, 781 A.2d 24 (2001) (noting that structure of a statute can be an interpretive tool). Accordingly, the court finds that the Mount Sunapee release does not impermissibly seek to avoid statutory liability.¹³

In addition to his misplaced reliance on Rayeski, Miller also argues that the McGrath Court’s allowance of liability releases is “limited to situations where the public statute at issue contains a statutorily imposed enforcement mechanism,” which allows state officials to protect the public interest by imposing [**14] penalties on violators.¹⁴

The holding in McGrath, which involved a snowmobiling accident, is not as broad as plaintiff posits. It is true that the Court in McGrath, in rejecting a claim that a liability waiver violated public policy because it allowed defendants to avoid certain snowmobile safety statutes, noted that the waiver did not affect the State’s ability to enforce snowmobiling rules and penalize infractions, and thus did not entirely relieve the defendant property owners of any statutory responsibility. 158 N.H. at 543 (citing N.H. Rev. Stat. Ann. §§ 215-C:32 and 34). But several factors undercut Miller’s reliance on McGrath. First, plaintiff’s argument is premised on his assertion that Mount Sunapee is trying to avoid liability for a statutory violation. The court has already rejected plaintiff’s premise as an untenable reading of §§ 225-A:23 and 24. Next, the State enforcement criterion was not dispositive in McGrath, as the Court found that the liability waiver did not contravene public policy because, “[i]rrespective of the statute, the plaintiff has voluntarily agreed not to hold the ski area, or its employees, liable for injuries resulting from negligence so that she may obtain a season ski pass.” Id. at 543 (emphasis added). In addition, even [**15] if the court read McGrath to require a state law enforcement vehicle to protect the public interest, the New Hampshire ski statutes do in fact provide one. Under N.H. Rev. Stat. Ann. § 225-A:26, “any person . . . violating this chapter . . . shall be guilty of a violation if a natural person, or guilty of a misdemeanor if any other person.”

Plaintiff argues that this statutory enforcement provision is limited to tramway operations, and thus does not satisfy McGrath. He supports this argument with a letter from a supervisor at the New Hampshire Division of Fire Safety,¹⁵ which [*591] correctly observes, pursuant to N.H. Rev. Stat. Ann. § 225-A:3-a, that the authority of the Passenger Tramway Safety Board is limited to ski lift operations and “shall not extend to any other matters relative to the operation of a ski area.”¹⁶ The letter also states that the penalty provision of § 225-A:26 “specifically relates to operating a tramway without it first being registered.”¹⁷ The letter also specifically mentions §§ 225-A:23 and 24, as being outside the tramway board’s authority.¹⁸

There are several reasons why the letter does not advance plaintiff’s statutory argument. First, the letter is not properly part of the summary judgment record. According to its terms, it was sent in response [**16] to plaintiff’s counsel’s request for documents concerning the enforcement of § 225-A:26. However, “[i]n opposing a motion for summary judgment, a plaintiff must proffer admissible evidence that could be accepted by a rational trier of fact as sufficient to establish the necessary proposition.” Gomez-Gonzalez v. Rural Opportunities, Inc., 626 F.3d 654, 662 n.3 (1st Cir. 2010) (emphasis added). The letter itself is inadmissible hearsay, as it is being offered to prove the truth of the matters asserted with respect to enforcement of § 225-A:23 and 24. See
Fed. R. Evid. 801(c)(2); see also Hannon v. Beard, 645 F.3d 45, 49 (1st Cir. 2011) (“It is black-letter law that hearsay evidence cannot be considered on summary judgment for the truth of the matter asserted.”). Moreover, although apparently issued by a government office (the plaintiff made no effort to lay such a foundation), the letter is not admissible under the Public Records hearsay exception. See
Fed. R. Evid. 803(8) (requiring, for admissibility, the evidence in question to, inter alia, set out the public office’s activities and involve a matter observed while under a legal duty to report). It is true that some forms of evidence, such as affidavits and declarations, may be considered on summary judgment, even if they would not be admissible at trial, so long as they “set out facts that would be admissible in evidence” [**17] if the affiant or declarant testified to them at trial. Fed. R. Civ. P. 56(c)(4). The letter in question, however, is neither an affidavit nor a declaration. In addition to being an unsworn letter, it fails to show how the letter writer is expressing “personal knowledge,” and fails to show that she is “competent to testify on the matters stated,” as required by Fed. R. Civ. P. 56(c)(4); see also
Fed. R. Evid. 602 (personal knowledge requirement).

Next, even if the letter was properly before the court, it lacks any legal force, either as a pronouncement of New Hampshire law, or an interpretation thereof. N.H. Rev. Stat. Ann. § 225-A:8 empowers the Tramway Safety Board to make rules regarding tramways. “Rules and Regulations promulgated by administrative agencies, pursuant to a valid delegation of authority, have the full force and effect of laws.” State v. Elementis Chem., 152 N.H. 794, 803, 887 A.2d 1133 (2005). Under New Hampshire administrative law, however, as set forth under its Administrative Procedure Act, the letter in question is not a rule, and thus lacks such force. It is simply a letter answering a question posed by the plaintiff’s lawyer. See
N.H. Rev. Stat. Ann. § 541-A:1, XV (explicitly excluding, under definition of “Rule,” “informational pamphlets, letters or other explanatory materials which refer to a statute or rule without affecting its substance or [**18] interpretation”). Notably, the plaintiff cites no provision of New Hampshire’s administrative [*592] law involving the Passenger Tramway Safety Board or Rules which support his theory. See N.H. Code. Admin. R. Ann. (PAS 301.01 et. seq. (2016)).

Finally, even if the letter was a properly admissible part of the summary judgment record in support of the proposition that the enforcement of § 225-A:26 is limited to tramway operations, and even if it were a duly-promulgated article of New Hampshire administrative law, it still fails to advance the plaintiff’s argument (to the extent it even addresses the issue before the court), because it incorrectly contradicts the governing statute, § 225-A:26.

As noted, the letter states that the authority of the Tramway Safety Board is limited to ski lift operations and “shall not extend to any other matters relative to the operation of a ski area.”¹⁹ This is undoubtedly true as far as it goes, as it tracks the language of § 225-A:3-a. That observation misses the point, however, as § 225-A:26 does not limit enforcement of § 225-A to the Tramway Board. To the contrary, the statute holds “any person” “guilty” of a violation or misdemeanor for violations of “this chapter,” i.e., the entirety of N.H. Rev. Stat. Ann. § 225-A, a chapter which [**19] addresses a wider variety of ski-related activities than ski lifts and tramways. Thus, the letter contradicts the plain language of the statute by inaccurately portraying the applicability of § 225-A:26 as limited to “operating a tramway without it first being registered.”²⁰ Under New Hampshire law, “[r]ules adopted by administrative agencies may not add to, detract from, or in any way modify statutory law,” Elementis Chem., 152 N.H. at 803, and the letter’s pronouncement, even it were a duly adopted Rule, would be invalid. See Appeal of Gallant, 125 N.H. 832, 834, 485 A.2d 1034 (1984) (noting that agency regulations that contradict the terms of a governing statute exceed the agency’s authority and are void). The statute penalizes not only failing to register, but also “violating this chapter or rules of the [Tramway Safety] board.” (emphasis added). In effect, the plaintiff is asking the court to ignore the plain language of the statute in favor of a letter which is neither properly before the court nor is a valid administrative rule and which fails to address the issue before the court — the scope of § 225-A:26. The court is not free to ignore the Federal Rules of Civil Procedure, New Hampshire’s Administrative Procedure Act,²¹ or the plain language of New Hampshire’s ski-related statutes.

Accordingly, the court finds that New Hampshire statutory law provides no support to plaintiff’s public policy argument.

2. Injurious to the public interest

Plaintiff next argues that the Mount Sunapee release violates public policy as injurious to the public interest because Mount Sunapee is located on state-owned land that was, at least in part, developed with federal funding. Plaintiff cites no authority for this argument, but instead relies on various provisions in the lease between Mount Sunapee and the State of New Hampshire. None of these provisions establish or support the proposition that public policy prohibits the enforcement of the release.

For example, the lease requires the property to be used for “public outdoor recreational uses,” “for the mutual benefit of the public and the Operator,” and “as a public ski area . . . for the general public.”²² In addition, the ski area operator is [*593] required to “allow public access,” “maintain the Leased Premises in first class condition,” and “undertake trail maintenance.”²³ Even assuming, arguendo, that the lease theoretically establishes public policy, the plaintiff makes no coherent argument how the release in question runs afoul of any [**21] of its provisions. Instead, plaintiff argues, strenuously but without authority, that condoning Mount Sunapee’s requirement that a skier agree to the release as a condition of skiing there “effectively sanctions the conversion of public land by Mount Sunapee.”²⁴ He also argues, again without authority, that:

“[p]rivate operators of public lands, to which the public must be allowed access, cannot be allowed to limit access to such lands to those individuals who are willing to forego their statutory rights by exculpating the private operators from the consequences of their own negligence. To hold otherwise, would mark the first step toward eliminating public access to public lands at the expense of the general public.”

(Emphasis added). Initially, the court reiterates its finding, supra, Part III.A.1, that the language at issue in this case does not implicate plaintiff’s statutory rights. Moreover, whatever persuasive force his policy-based arguments hold, plaintiff cites no authority — in the form of cases, statutes or regulations — upon which the court can rely to accept them.²⁵

As a final public-interest related matter, the parties dispute the import of liability releases used at Cannon [**22] Mountain, a state-owned and operated ski area. In its motion, Mount Sunapee cited those releases to demonstrate that New Hampshire’s public policy does not generally disfavor liability releases.²⁶ Plaintiff, however, points out that because the Cannon release does not use the word “negligence,” it may, in fact, not release Cannon from its own negligence. See Barnes, 128 N.H. at 107 (noting that “the [exculpatory] contract must clearly state that the defendant is not responsible for the consequences of his negligence.”). Therefore, plaintiff suggests, Sunapee’s release may have exceeded what public policy (as articulated in the Cannon release) permits. Regardless of the Cannon release’s enforceability — a matter on which the court offers no opinion — the court finds that Mount Sunapee has the better of this argument. New Hampshire’s public policy is likely best expressed by its legislative enactments, particularly N.H. Rev. Stat. Ann. § 225-A:24, I, under which “ski area operators owe no duty to protect patrons from the inherent risks of skiing and thus are immunized from liability for any negligence related to these risks.” Cecere v. Loon Mountain Recreation Corp., 155 N.H. 289, 295, 923 A.2d 198 (2007). Such legislatively-enacted immunity from negligence undercuts Miller’s argument that the Cannon release demarcates [**23] the outer boundary of New Hampshire public policy. Ultimately, the court is skeptical that, as both parties implicitly argue, the state’s risk management decisions and devices, as embodied in certain ski area releases, constitute articulations of public policy.

Having failed to demonstrate any statutory transgressions or injury to the public interest, plaintiff has failed to establish a genuine issue of material fact as to whether the Mount Sunapee release violates public policy.

[*594] B. Import of the agreement

The next factor the court must consider in assessing the enforceability of the Mount Sunapee release is whether the plaintiff or a reasonable person in his position would have understood its import. Dean, 147 N.H. at 266-67. Miller argues that a factual dispute exists as to this criterion because there was no “meeting of the minds” sufficient to form an enforceable binding agreement.²⁷ He bases this proposition, in turn, on two assertions: 1) that the release is unsigned; and 2) that he did not read it. The court finds that New Hampshire law does not require a signature to effectuate the terms of a release and that the plaintiff had — but chose not to take advantage of — an opportunity to read the release.

1. Signature

As an initial matter, the court notes that a “meeting of the minds” is not an explicit requirement of enforceability under New Hampshire law. The Court in Dean required only that “the plaintiff understood the import of the agreement or a reasonable person in his position would have understood the import of the agreement.” 147 N.H. at 266-67. While a signature might be evidence of such understanding, it has never been held to be a prerequisite. Indeed, in Gannett v. Merchants Mut. Ins. Co., 131 N.H. 266, 552 A.2d 99 (1988), the Court enforced an unsigned and unread release of an insurance claim.

Plaintiff asserts that the New Hampshire Supreme Court has never explicitly upheld the enforcement of an unsigned liability release. See, e.g., McGrath, 158 N.H. at 545 (“[t]he ski pass application signed by the plaintiff”); Dean, 147 N.H. at 266 (“Mr. Dean signed the Release before entering the infield pit area”); Audley, 138 N.H. at 417 (“two releases signed by the plaintiff”); Barnes, 128 N.H. at 106 (“release and waiver of liability and indemnity agreement he signed”). Even if one were to accept this proposition despite the holding in Gannett, which is arguably distinguishable from the line of New Hampshire cases just cited, it is not dispositive, because the Court has also never explicitly required a signature on a liability release as a condition [**25] of enforceability.

In a diversity case such as this one, if the state’s highest court has not spoken directly on the question at issue, this court must try to predict “how that court likely would decide the issue,” looking to the relevant statutory language, analogous state Supreme Court and lower state court decisions, and other reliable sources of authority. Gonzalez Figueroa v. J.C. Penney P.R., Inc., 568 F.3d 313, 318-19 (1st Cir. 2009). A review of an analogous decision of the New Hampshire Supreme Court and several New Hampshire trial court decisions reviewing ski area liability releases leads the court to conclude that Miller’s unsigned release is enforceable.

The court finds some guidance in Gannett, supra, where the Court enforced a release of an insurance claim even though the releasing party neither read nor signed the release, but returned it before cashing the insurer’s check. 131 N.H. at 270. Especially salient here, the Court found it “irrelevant whether [plaintiff] actually read the release, when the release clearly and unambiguously stated the condition, and when she had the opportunity to read it.” Id. at 269-270 (emphasis added). The Gannett Court cited the passage in Barnes, 128 N.H. at 108, enforcing an un-read liability [*595] release where the defendant felt rushed through the admittance line. The Barnes court enforced [**26] the release where “[t]here was no evidence . . . that [the plaintiff] was denied the opportunity to read the body of the release.” Id.

Two New Hampshire Superior Court cases involving ski lift ticket releases also inform this analysis. See Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S. Ct. 1776, 18 L. Ed. 2d 886 (1967) (noting that decrees of lower state courts should be “attributed some weight”, but are not controlling, where the highest State court has not spoken on an issue). In Camire v. Gunstock Area Comm’n, No. 11-C-337, 2013 N.H. Super. LEXIS 30 (N.H. Super. Ct., Mar. 22, 2013) (O’Neil, J.), the court granted the defendant ski area summary judgment based on an unsigned release. 2013 N.H. Super. LEXIS 30 at *8. (“[T]he fact that Ms. Camire did not sign the agreement does not render it unenforceable, as a participant’s signature is not required under the factors set forth in [Dean]“), aff’d on other grounds, 166 N.H. 374, 97 A.3d 250 (2014). While the trial judge also noted that the ski area had a large sign near the ticket kiosk calling attention to the existence of the lift ticket release, and that plaintiff testified in her deposition that she would have understood the ticket’s release language had she read it, 2013 N.H. Super. LEXIS 30 at *5, the trial court’s observation that the lack of a signature was not dispositive is entitled, as the United States Supreme Court has [**27] noted, to “some weight.” Bosch’s Estate, 387 U.S. at 465.

The court also draws some guidance from a New Hampshire trial court that denied a ski area operator’s motion for summary judgment in another case involving a lift ticket release. In Reynolds v. Cranmore Mountain Resort, No. 00-C-0035, (N.H. Super. Ct., March 20, 2001) (O’Neil, J.), the plaintiff’s lift ticket contained a peel off backing similar to the one at issue here, including the red “STOP” sign symbol. Id. at 2. The plaintiff claimed that she did not sign the release and that the release language was not conspicuous enough to give notice to a reasonable person. Id. at 5. While the court did not rule on the signature issue, it ruled that a jury issue remained as to whether the “STOP” sign on the ticket was sufficiently conspicuous, because the peel-off backing contained an advertisement for a free workout, also written in red, in a larger font than much of the warning on the backing. Id. at 1-2, 7. In so ruling, the court relied on Passero v. Killington, Ltd., 1993 U.S. Dist. LEXIS 14049, 1993 WL 406726 (E.D. Pa. Oct. 4, 1993), a Pennsylvania case in which the lift ticket at issue contained an advertisement in a larger typeface than the release language. 1993 U.S. Dist. LEXIS 14049, [WL] at * 7 (“[Plaintiff] argues that the exculpatory clause’s minuscule size, its setting against a dark background, and the existence [**28] of a much larger advertisement for a 15% discount on a “COMPLETE OVERNIGHT SKI TUNE-UP” on the lift ticket’s adhesive backing, all serve to distract the skier’s attention away from the substantive rights he or she is supposedly relinquishing by purchasing the lift ticket.”). The Superior Court found that it was “best left to the trier of fact to determine whether the language of the lift ticket reasonably communicated the existence of a contractual agreement to the purchaser . . . .” Id. Here, the Mount Sunapee lift ticket contains no such distracting advertisement or font sizes greater than that of the release language on the ticket. As the distracting features were the basis for the New Hampshire Superior Court’s denial of summary judgment in Reynolds, the lack of any such features here is significant. Accordingly, the court finds that the lack of a signature on the lift ticket release is not, under the circumstances of this case, a barrier to its enforceability where the plaintiff had an opportunity to read it and the terms were unambiguous and not contrary to public policy.

[*596] 2. Opportunity to read the release

A plaintiff’s failure to read a release “does not preclude enforcement of [**29] the release.” Barnes, 128 N.H. at 108. As long as the plaintiff had an opportunity to read the release, even if he chooses not to take it, a release can be enforced. Dean, 147 N.H. at 270; cf. Jenks v. N.H. Motor Speedway, Inc., 2010 DNH 38 (material factual dispute existed as to whether plaintiff had opportunity to read release where plaintiff put his name on a sign-up sheet and release may have been obscured).

Plaintiff, a personal injury attorney, originally submitted two sparse affidavits in opposition to Mount Sunapee’s dispositive motion.²⁸ The affidavits’ only reference to the release is that he did not read the language on the lift ticket or the peel off backing, nor was he instructed to. He did not claim that he lacked the time or opportunity to read it, or was discouraged from doing so. Nor do the affidavits state that he did not peel off the lift ticket from the backing paper.

To be sure, the plaintiff carries no burden of proof at summary judgment, but the sparse and somewhat cryptic nature of the plaintiff’s affidavits — one of which conspicuously tracked the facts emphasized in the Reynolds Superior Court decision, supra, but added nothing more — led this court to ask several pointed questions at oral argument. When pressed by the court regarding the omitted, but [**30] critical, subject matter, plaintiff’s counsel conceded that Miller purchased the ticket, affixed it to his own jacket, had the opportunity to read the backing and the release, and would have recognized it as a release (although not as interpreted by Mount Sunapee).²⁹

In an abundance of caution, and reluctant to grant summary judgment terminating plaintiff’s claims without a more fully developed record, the court sua sponte ordered supplemental discovery concerning, inter alia, the issue of plaintiff’s purchase and use of the lift ticket on the day of his injury.³⁰ Although the plaintiff resisted defense counsel’s attempts to elicit direct answers to straightforward questions about his handling and viewing of the lift ticket, plaintiff’s deposition confirmed certain relevant facts that his counsel conceded at oral argument. First, plaintiff testified that he was handed the lift ticket with the release language facing up, and did not see the language on the peel-off backing.³¹ Nevertheless, plaintiff confirmed that he had the opportunity to read the release language on the lift ticket and the peel off backing before he removed the ticket from the backing and affixed it to his clothing.³² Even [**31] though plaintiff testified [*597] that he attached the ticket to his pants immediately after receiving it, and thus did not read it, he agreed that he was not pressured to do so,³³ and had the opportunity to read it if he so chose.³⁴

Based on the summary judgment record, the plaintiff’s concessions at oral argument and his supplemental deposition testimony sua sponte ordered by the court in an abundance of caution, the court finds that the undisputed facts demonstrate that plaintiff purchased the lift ticket, peeled it from its backing before attaching it to his clothing, had the opportunity to read both sides of it,³⁵ and that “a reasonable person in plaintiff’s position” would have “known of the exculpatory provision.” Barnes, 128 N.H. at 107. The court therefore finds that plaintiff’s decision to not [*598] read the lift ticket release language does not render it unenforceable.³⁶

C. Contemplation [**34] of the parties

The final factor the court considers is whether the plaintiff’s claims “were within the contemplation of the parties.” Barnes, 128 N.H. at 107. This factor concerns whether plaintiff’s claims were within the scope of the release. Dean, 147 N.H. at 267. To determine the scope and application of a liability release agreement, the court must examine its language. Dean, 147 N.H. at 267. If “the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence, the agreement will be upheld.” Id. The court gives the language of the release “its common meaning and give[s] the contract itself the meaning that would be attached to it by a reasonable person.” Id. “All that is required” is for the language to “clearly and specifically indicate[] the intent to release the defendants from liability for personal injury caused by the defendants’ negligence . . . .” McGrath, 158 N.H. at 545.

While plaintiff’s counsel conceded at oral argument that a reasonable person would have recognized the lift ticket language as a release, he argues that it would only be understood as applying to “the inherent risks of skiing,” as enumerated in § 225-A:24,³⁷ and not to the circumstances of plaintiff’s accident.³⁸ As [**35] explained below, this argument is based on an incomplete reading of the release and a flawed reading of persuasive New Hampshire Supreme Court precedent. It is therefore rejected.

Plaintiff argues that the first words of the release — “Skiing, snowboarding, and other winter sports are inherently dangerous”³⁹ — limit the scope [**36] of the release to [*599] the inherent risks of skiing as set forth in N.H. Rev. Stat. Ann. § 225-A:24, which, he posits, do not include collisions with unmarked or not visible snow-making equipment. The remainder of the release, however, is far broader, explicitly encompassing “all risks . . . of personal injury . . . resulting from . . . inherent or any other risks or dangers.” (Emphasis added). Additional language in the release is similarly broad:

I RELEASE MOUNT SUNAPEE RESORT, its parent companies, subsidiaries, affiliates, officers, directors, employees and agents FROM ANY AND ALL LIABILITY OF ANY KIND INCLUDING NEGLIGENCEwhich may result from conditions on or about the premises, operation of the ski area or its afacilities [sic] or from my participation in skiing or other winter sports, accepting for myself the full and absolute responsibility for all damages or injury of any kind which may result from any cause.⁴⁰

(Bold emphasis in original; underlining added). While plaintiff acknowledges that his “participation in skiing” might trigger the release, he argues that the expansive “any and all” language is qualified by the first sentence’s reference to skiing as “inherently dangerous,” which, he asserts, warrants limiting [**37] the release to the risks itemized in § 225-A:24.

In support of his “inherent risks” argument, plaintiff relies on Wright v. Loon Mountain Recreation Corp., 140 N.H. 166, 663 A.2d 1340 (1995), a case in which a horseback rider was kicked by her guide’s horse, allegedly due to the guide’s negligence. Id. at 168. The Court in Wright held that a release which first noted the “inherent hazards” of horseback riding “obscured” the later following exculpatory clause, part of which resembled the one employed here by Mount Sunapee. Id. at 170. But there is a significant textual difference between the release in
Wright and the one at issue here, and that difference was the lynchpin of the Wright Court’s analysis: the operative language of the Wright release affirmatively referred back to the “inherent hazards” language. In Wright, the exculpatory clause purporting to release the defendant from “any and all” liability began with the phrase “I therefore release . . .” Id. (emphasis added). The Court found the word “therefore” not only significant but dispositive, noting that it means, inter alia, “for that reason” and thus “cannot be understood without reading the antecedent [inherent hazards] language.” Id. Accordingly, the Court concluded, “[b]ecause the exculpatory [**38] clause is prefaced by the term ‘therefore,’ a reasonable person might understand its language to relate to the inherent dangers of horseback riding and liability for injuries that occur “for that reason.”⁴¹Id. The Court ultimately held that the negligence of a guide is not such an “inherent risk.” Id.

Unlike the release in Wright, however, the Mount Sunapee release contains no such “therefore” or other referential language which might call into question the breadth of the language that follows. As such, the court finds that the release [*600] “clearly state[s] that the defendant is not responsible for the consequences of his negligence,” Barnes, 128 N.H. at 107, and explicitly called particular attention “to the notion of releasing the defendant for liability for its own negligence.” Cf. Audley v. Melton, 138 N.H. 416, 419, 640 A.2d 777 (1994) (rejecting exculpatory clause because it failed to call particular attention to releasing defendant from liability). The court therefore finds that the Mount Sunapee release is not limited to the “inherent risks” of skiing enumerated in N.H. Rev. Stat. Ann. § 225-A:24, I. Accordingly, even assuming that Miller’s accident did not result from an “inherent risk” of skiing, his claim is nevertheless encompassed by the terms of the release and within the contemplation [**39] of the parties.

D. Reckless, wanton or positive misconduct

After Mount Sunapee’s initial motion for judgment on the pleadings raised the lift ticket release as a defense, Plaintiff added four paragraphs to his suit in an Amended Complaint, all in support of his one negligence count. The new additions quote from a handwritten note on a “grooming report” prepared by Mount Sunapee Mountain Operations Manager Alan Ritchie two weeks prior to plaintiff’s accident. Ritchie’s note states the following: “keep the skier’s left guardrail 3′ from the tower guns at BTM (Hidden Hydrants below the snow[)]. Remove 2′ of snow from just above the Blue Shield around the Teckno fan gun.”⁴² Based solely upon this entry, Miller asserts that Mount Sunapee knew of buried snowmaking equipment and that failing to mark it or otherwise make it visible both violated its statutory duty and constituted “reckless, wanton, and positive acts of misconduct” from which it can not legally be released.⁴³

In response, Mount Sunapee argues: 1) that the allegations do not support a claim for a statutory violation; 2) that New Hampshire law does not recognize extra-culpable, non-releasable categories of negligence; and 3) that [**40] the Amended Complaint and attached documents fail, in any event, to set forth facts amounting to anything other than ordinary negligence. The court has already found no statutory violation⁴⁴ and further finds that the complaint, even as amended, alleges nothing more than ordinary negligence.

1. Recklessness

Plaintiff argues that the additional allegations in the Amended Complaint state a claim for reckless behavior, which, he argues, is not within the purview of the release. The court finds that the new amendments do not allege conduct that is more culpable than negligence, which is subject to the terms of the Mount Sunapee release.⁴⁵

The New Hampshire Supreme Court generally refers favorably to the Restatement of Torts and has done so with respect to its description of “reckless” conduct:

[*601] Under the Restatement [(Second) of Torts], § 500, at 587 (1965), conduct is “reckless” if it “would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such a risk is substantially greater than that which is necessary to make his conduct negligent.” Id. The conduct “must involve an easily perceptible danger of death or substantial [**41] physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence.” Id.
comment a at 588.

Boulter v. Eli & Bessie Cohen Found., 166 N.H. 414, 421, 97 A.3d 1127 (2014).

As the Court noted in Thompson v. Forest, 136 N.H. 215, 220, 614 A.2d 1064 (1992), a litigant’s characterization of conduct as evincing a particular culpable mental state is not particularly useful. “Recklessness,” at a minimum, is conduct “where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid, and becomes in the mind of the actor a substantial certainty.” Id. (quoting WP Keaton, et al., Prosser and Keaton on the Law of Torts § 8 (5th ed. 1984)). Here, notwithstanding the descriptive adjectives employed by the plaintiff, the facts and allegations pled do not suggest that, to anyone affiliated with Mount Sunapee, there was “a substantial certainty” that serious foreseeable harm would occur based on its alleged conduct or that Mount Sunapee’s conduct involved an unreasonable risk of physical harm “substantially greater than is required for ordinary negligence or that the risk was one involving an easily perceptible danger of death or substantial physical harm.” Boulter, 166 N.H. at 422.

Plaintiff relies on a recent New Hampshire Superior Court case involving an injured ski lift [**42] passenger in which the trial judge held that the plaintiff’s allegations of recklessness were sufficient to survive a motion for summary judgment.⁴⁶ In Perry v. SNH Dev., No. 2015-CV-00678, 2017 N.H. Super. LEXIS 32 (N.H. Super. Ct., Sept. 13, 2017) (Temple, J.), the child plaintiff was injured after first dangling from, and then falling from, a chair lift into which she was improperly loaded. 2017 N.H. Super. LEXIS 32 at *33. There, the plaintiff successfully pled facts that alleged recklessness and avoided the ski area‘s enforceable negligence release. 2017 N.H. Super. LEXIS 32 at *23. Specifically, the plaintiffs in Perry alleged that the ski area‘s:

employee(s)[‘] total and complete failure to monitor the safe and proper loading of the Rocket chair lift in any fashion, coupled with the undisputed failure (actions or inactions) to stop the chair lift once a life threatening emergency was clearly in progress and ongoing for a considerable period of time, were failures to do acts which the employees had a duty to perform for [plaintiffs] and constitute a reckless disregard of safety.

2017 N.H. Super. LEXIS 32 at *27. The court denied the ski area‘s motion for summary judgment on the recklessness issue, first noting the allegation that there “were multiple employees of Crotched Mountain in or around [**43] the area observing that Sarah was not able to properly and/or safely board the Rocket chair lift; but rather [was] dangling from the chair lift.” 2017 N.H. Super. LEXIS 32 at *33. The court found this allegation sufficient to support an inference that the ski area‘s employees [*602] “knew that [the child plaintiff] was not properly loaded on the chair lift, but chose not to act.” Id. The court additionally cited the allegations that the ski area‘s employees knew that their failure to “stop the chair lift once a life threatening emergency was clearly in progress” would create an “unreasonable risk of physical harm or death.” Id. These facts, the Superior Court concluded, were sufficient to establish a claim of reckless conduct. Id.

In reaching its decision, the Perry court assumed that recklessness involved a defendant’s “conscious choice.” 2017 N.H. Super. LEXIS 32 at *32 (citing State v. Hull, 149 N.H. 706, 713, 827 A.2d 1001 (2003)). Here, plaintiff argues that a reasonable inference can be made that Mount Sunapee knowingly disregarded the risk of harm posed by hidden snowmaking equipment, and that they “knew that ‘hidden’ hydrants posed a danger, but chose not to act.⁴⁷

The court finds no such inference. As noted, the amended allegations do not pertain to a time or place related to Miller’s accident. [**44] There is nothing in the Ritchie affidavit that supports an allegation that Mount Sunapee made a “conscious choice” to create a “risk that was substantially greater than is required for ordinary negligence or that . . . [involved] an easily perceptible danger of death or substantial physical harm.” Boulter, 166 N.H. at 422 (internal quotation marks omitted). Significantly, the allegations in this case stand in stark contrast to those in Perry, where ski area employees allegedly ignored a nearby lift passenger already in obvious danger, a child literally dangling from the moving chair lift. Under plaintiff’s theory, any collision with buried snowmaking equipment would constitute a claim for recklessness.

One of the cases cited in Perry supports the court’s conclusion. In Migdal v. Stamp, 132 N.H. 171, 564 A.2d 826 (1989), the plaintiff, a police officer, was shot by a 15-year old who had been involuntarily hospitalized due to mental health issues. Id. at 173. The day after his release into his parents’ custody, the teen took several guns and hundreds of rounds of ammunition from an unsecured gun cabinet in their home, fired them throughout the house, and then shot and injured the plaintiff, who responded to the scene. Id. The injured officer sued the shooter’s parents, [**45] who sought dismissal based on the “fireman’s rule.”⁴⁸ After first noting that the rule bars claims of negligent, but not reckless, conduct, id. at 176, the Court concluded that the plaintiff had adequately pled recklessness by alleging that the parents “failed to seek recommended medical treatment” for their son and allowed him access to “an array of firearms and ammunition,” despite their knowledge that their son “was suffering from mental and emotional instabilities,” had “exhibited dangerous propensities,” and had ransacked and vandalized the house the day before. Id. Mount Sunapee’s conduct — failure to mark or make visible the snow gun holder — is neither of the same type nor degree as the defendants’ conduct in Migdal.

A ski case from the District of Massachusetts is also instructive. In Brush v. Jiminy Peak Mountain, 626 F. Supp. 2d 139 (D. Mass. 2009), a ski racer was injured when she lost control and collided with a ski tower support located off the trail. Id.
[*603] at 143. In suing, inter alia, the ski area, the plaintiff alleged that netting and other safety devices should have been placed around the support, as required by certain ski racing standards and as had been done by the defendant in the past. Id. at 145. In order to avoid application of a release, the plaintiff asserted [**46] a claim for gross negligence, which, under Massachusetts law, is a less culpable standard than recklessness. Id. at 151 (citing Altman v. Aronson, 231 Mass. 588, 121 N.E. 505, 506 (Mass. 1919)). The Court concluded that plaintiff had alleged only simple negligence. Id. The Court first observed that “[t]here is no evidence in the record, and indeed no allegation, that any of the Defendants, or anyone at the competition, became aware that there was an area of the trail without netting where netting was normally placed and declined to remedy the situation.” Id. Ultimately, the Court held, “[a]t most there was a collective failure to take a step that might have lessened the injuries suffered by Plaintiff. No reasonable jury could find that this simple inadvertence, no matter how tragic its consequences, constituted gross negligence.” Id.

The court views the conduct alleged here as much more akin to that alleged in Brush — which alleged conduct that was less culpable than recklessness — than that in Perry
or Migdal. The factual allegations in this case fall far short of recklessness. First, as previously noted, the grooming report on which plaintiff relies is remote both in time and location. Next, the conduct alleged here is significantly less egregious than the [**47] allegations in Perry, where ski area employees allegedly ignored a nearby passenger already in danger of falling from a lift chair, or the conduct in Migdal, where the defendant parents, one day after their son had exhibited mental instability, ransacked the family home, and exhibited dangerous tendencies, failed to seek treatment for him and to secure multiple firearms and ammunition. As in Brush, the most that can be said here is that Mount Sunapee failed to take a step that — while not legally required, see supra, § III.A.1 — might have prevented plaintiff’s accident. These allegations do not support a claim that their acts or omissions in not clearing snow away from a snow gun holder in an ungroomed area “were substantially more serious” than ordinary negligence. Boulter, 166 N.H. at 422.⁴⁹

2. Wanton and positive misconduct

In an attempt to characterize his claims in such a way to avoid the language of the release, plaintiff’s Amended Complaint describes them as “wanton and positive acts of misconduct,” that is, more culpable than negligence, but not intentional.⁵⁰ The court, however, has already determined that the Complaint alleges no more than ordinary negligence, so this argument fails.

3. Potential [**48] certification

If the court had found that the facts alleged by the plaintiff could constitute conduct more culpable than negligence, it would have considered certifying an unresolved question to the New Hampshire [*604] Supreme Court: whether conduct more culpable than negligence, but less than intentional could be the subject of a release like the one at issue here. See
N.H. Sup. Ct. R. 34. In the absence of such allegations, certification is unnecessary.

IV. Conclusion

The undisputed factual record shows that plaintiff purchased and affixed to his clothing a lift ticket at Mount Sunapee that unambiguously released the ski area from liability from its own negligence, that such a release does not violate public policy, and that plaintiff’s signature was not required to effectuate its terms. Furthermore, there is no material factual dispute that plaintiff had the opportunity to read both the cautionary language on the ticket’s peel-off backing and the release language itself, that he would have understood that language to constitute a release and that a reasonable person in his position would have understood that the release exculpated Mount Sunapee from its own negligence.

As plaintiff has alleged only that Mount [**49] Sunapee’s negligence caused his injuries, and that the facts he alleges do not constitute conduct more culpable than negligence, the court finds that plaintiff’s claims fall within the ambit of the Mount Sunapee release and that the release is enforceable against the plaintiff. Therefore, defendant’s motion for judgment on the pleadings, having been converted to a motion for summary judgment⁵¹ is GRANTED.⁵²

SO ORDERED.

/s/ Joseph N. Laplante

Joseph N. Laplante

United States District Judge

March 31, 2018

Plaintiff loses snow tubing case in PA because their experts could not argue the actions of the defendant were gross negligence.

Posted: October 28, 2019 | Author: Recreation Law | Filed under: Pennsylvania, Release (pre-injury contract not to sue), Skiing / Snow Boarding, Snow Tubing | Tags: anti-fatigue, bottom, deceleration, deposition, expert report, fail to meet, folded, grant summary judgment, Gross negligence, Inc., issues, kitchen, Mats, matter of law, patron's, Reckless, Resort, rider's, rubber, run-out, serious injury, Ski, Ski Roundtop Operating Corporation, Snow, Snow Time, speed, Standard of Care, stopping, Summary judgment, summary judgment motion, Trial court, tubers, Tubing | Leave a comment

Association resource guide is used against the defendants to prove the plaintiff’s case.

Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938; 2018 WL 3868670

State: Pennsylvania, Superior Court of Pennsylvania

Plaintiff: Ray M. Bourgeois and Mary Ann I. Bourgeois

Defendant: Snow Time, Inc. and Ski Roundtop Operating Corporation

Plaintiff Claims: negligence, gross negligence, recklessness, and loss of consortium

Defendant Defenses: failure to state a claim and release

Holding: For the defendant

Year: 2018

Summary

In the instant matter, Appellant Ray Bourgeois was seriously injured while snow tubing when his tube crossed folded anti-fatigue rubber kitchen mats which Appellees had placed in the deceleration area of the snow tubing run. Appellants’ theory of the case is that Appellees acted recklessly and with gross negligence by placing the mats at the end of the tubing run to aid in tube deceleration.

Facts

This case stems from an incident that occurred while Appellant Ray Bourgeois (Bourgeois) was snow tubing at Roundtop Mountain Resort (the Resort), which is owned and operated by Appellees. As described by the trial court, Bourgeois

went down the hill on his stomach, [head first] on his tube, and proceeded to reach the run-out area at the bottom of the hill. To aid snow tubers in slowing down and stopping at the bottom of the hill, [Appellees] utilized deceleration mats. On his final run, [Bourgeois’s] snow tube came into contact with a deceleration mat, causing his tube to come to an abrupt stop. [Bourgeois’s] body continued forward in motion after his tube stopped, causing him to land [head first] into the snow. The resulting collision caused a hyperextension of [Bourgeois’s] spinal cord in his neck that has left him quadriplegic with limited mobility from his neck down.

The defendants filed a motion for summary judgment, which was granted and the plaintiff’s appealed.

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

The first issue the appellate court reviewed was the dismissal of the plaintiff’s claims for gross negligence. The appellate court held that “we find that Appellants did not establish a prima facie claim for recklessness or gross negligence”

The court came to that conclusion because no one could state the standard of care needed to prove the actions of the defendant rose to the level of gross negligence.

In this case, the trial court concluded as a matter of law that Appellants could not establish a claim for recklessness or gross negligence. The trial court reasoned that since Appellants’ experts had not articulated the standard of care that Appellees failed to meet, a factfinder could not conclude that Appellees were aware of that standard of care and disregarded it and, thus, acted recklessly or with grossly negligence:

The court first looked at the definition of recklessness and gross negligence.

The Pennsylvania Supreme Court, citing the Restatement (Second) of Torts, found that a defendant acts recklessly, when, inter alia, he owes a duty to the plaintiff and fails to meet that duty. That is, a defendant is reckless when:

he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also

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