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Need a Handy Reference Guide to Understand your Insurance Policy?

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

Table of Contents

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

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

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

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    PreInjury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

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

Chapter 13    Rental Programs

Chapter 14    Insurance

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Ray v. Lesniak, 2018 U.S. Dist. LEXIS 28301

Ray v. Lesniak, 2018 U.S. Dist. LEXIS 28301

Raven Renee Ray, Plaintiff, v. Steve A. Lesniak, Defendant.

No.: 2:16-cv-1752-DCN

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA, CHARLESTON DIVISION

2018 U.S. Dist. LEXIS 28301

February 22, 2018, Decided

February 22, 2018, Filed

CORE TERMS: sheet, boat, brain, crew members, traumatic, pain, sailboat, captain, gybe, admiralty, passenger, maneuver, sailing, vessel, medication, symptoms, present value, guest, experienced, emotional, headaches, safe, hit, suffering, lookout, sit, citation omitted, concussion, sitting, opined

COUNSEL: [*1] For Raven Renee Ray, Plaintiff: Benjamin Catlett Smoot, II, William P Early, LEAD ATTORNEY, Pierce Herns Sloan and McLeod, Charleston, SC; Theodore Augustus Consta Hargrove, II, Pierce Herns Sloan and Wilson LLC, Charleston, SC.

For Steve A Lesniak, Defendant: Joseph R Weston, Stephanie A Phillips, LEAD ATTORNEYS, Weston Law Firm, Mt Pleasant, SC.

JUDGES: DAVID C. NORTON, UNITED STATES DISTRICT JUDGE.

OPINION BY: DAVID C. NORTON

OPINION

Plaintiff Raven Renee Ray (“Ray”) brought this admiralty action against Defendant Steve A. Lesniak (“Lesniak”) pursuant to Federal Rule of Civil Procedure 9(h). Ray is suing Lesniak for personal injuries and other damages she sustained as a result of being struck by the main sheet during a sailing race on Lesniak’s boat “the Celadon.”

The court tried this case without a jury on September 18, 2017. Having considered the testimony and the exhibits admitted at trial, as well as the parties’ pre-trial briefs and post-trial proposed findings and conclusions, the court now makes the following findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a). It finds that Lesniak was negligent in his captaining of the Celadon, that Ray suffered an injury while an invited guest on the Celadon as a result of Lesniak’s negligence, and [*2] that as a result of this injury Ray has a permanent traumatic brain injury. It awards $958,758.15 in damages. This award, in the court’s eyes, gives Ray what she deserves–“just some justice, some recognition and help.” Tr. 135:24.

FINDINGS OF FACT1

1 These findings are based on the preponderance of the evidence presented to the court.

1. At the time of the incident at issue, Ray was a 29-year-old female working two jobs in the food and beverage industry, volunteering at an acupuncture clinic, and simultaneously pursuing advanced degrees in psychology and clinical counseling at The Citadel. Ray had never been on a sailboat before the day of the incident.

2. At the time of the incident, 57-year-old Lesniak was the owner, operator, and captain of the sailboat Celadon on which the incident occurred. Lesniak is an experienced captain, who has 35 years of sailing experience–including 25 years of sailing experience in Charleston. Tr. 205:15-17. He has captained “several hundred, maybe a thousand” sailboat races. Tr. 205:18-20. He has been sailing with some of the crew members that were on the Celadon at the time of the incident for “15, 20 years.” Tr. 205:24-206:7.

3. The sailboat Celadon on which the incident occurred is a fifty-one foot, 1995 Beneteau Oceanis 510 registered in [*3] Charleston County, South Carolina. At the time of the incident, Lesniak had owned and operated the Celadon for approximately fifteen years.

4. Operation of the sailboat during a race requires several crewmembers. Thirteen crewmembers and a number of guests were aboard the sailboat on the day of the incident. Tr. 182:1-183:1.

A. The Accident:

1. The court now turns to the day of the incident, May 21, 2014. Ray was invited to a sailboat race by Colin Skinner (“Skinner”), who Ray knew as a “regular” customer at the Oak Bar Tavern where she worked. Tr. 106:14-20. Skinner was a crew member on the Celadon. Tr. 184:3-6. Skinner has been sailing with Lesniak for “[r]oughly five years.” Tr. 206:20-22. Lesniak allowed Skinner to invite a guest on the boat. Tr. 184:5-6.

2. The other crew members who were on the Celadon during the incident had years of sailing experience, many as crew members with Lesniak. Tr. 206:10-208:4. Of the crew members on the boat at the time of the incident, at least three had medical backgrounds, ranging from Emergency Room nurse to thoracic surgeon. Tr. 206:10-208:9. Lesniak testified that these crew members had previously taken action if anyone suffered an injury on the [*4] boat during sailing races and trips. Tr. 209:21-210:5.

3. Lesniak testified that all of his crew members “[knew] to look after new people.” Tr. 208:18-21.

4. Lesniak authorized crew members to perform tasks during the race, including telling guests when and where to move during the course of the race. Tr. 209:1-20.

5. Ray and Skinner arrived at the Carolina Yacht Club, the marina where the yacht was docked. Tr. 107:7-12. When she got to the boat, there were “many” people on the boat, including crew members and guests. Tr. 108:1-4. Ray testified that she did not know anyone on the boat other than Skinner. Tr. 108:5-6.

6. Before May 21st, 2014, Ray had never been on a sailboat. Tr. 106:21-107:1. She knew nothing about how a sailboat worked. Tr. 107:2-4.

7. Lesniak did not give safety instructions to any of the guests, including Ray, who was on the Celadon. Tr. 184:12-17. He also did not give any written instructions to guests. Tr. 187:2-6. Furthermore, he did not have a written safety checklist or conduct a safety and operational briefing before the Celadon left the marina. Tr. 187:16-21. At the time of the incident, there were no safety placards or visual displays on the Celadon stating [*5] that there were dangerous places to sit on the boat, such as “around any rope, boom.” Tr. 186:20-187:1. Lesniak delegated the giving of safety instructions to two crew members, neither of whom testified during the trial. Tr. 14:16-185:6. Lesniak did not hear what safety talks were given to guests because he was at the helm of the boat. Tr. 185:5-9.

8. Ray was late to the start of the boat race and was given an abbreviated version of the “safety talk” by crew members, which involved an instruction on where not to sit on the boat. Tr. 192:10-18.

9. Upon arriving on the Celadon, Skinner placed Ray at the position where she was sitting when the main sheet hit her. Tr. 264:8-265:19. Ray was seated on the deck of the Celadon, near the main sheet. Ex. 13.

10. The crew was aware of where Ray was sitting. Tr. 204:4-6.

11. Within 5-10 minutes of Ray stepping on board the Celadon, the incident occurred. Tr. 194:2-5.

12. Before she was hit, Ray was given instructions by crew members to “get more neighborly, get closer together.” Tr. 114:2-3. Specifically, crew member Dawn Truog (“Truog”) asked Ray, who was sitting in front of the main sheet, to “move back from the [main] sheet.” Tr. 250:16-25. There [*6] was no evidence presented that Ray knew what a “main sheet” was. Crew member Mary Anne Becker (“Becker”) also testified, stating that she “told [Ray] specifically to move, move up front, move forward” multiple times, because Ray “was going to be brushed by the sheets” when the boat gybed. Tr. 257:6-12. Becker further testified that even after these verbal warnings to move, Ray “didn’t move,” and “the next thing” Becker knew was Ray “down on the gutter” of the boat. Tr. 257:17-20.

13. Lesniak made the decision to gybe, which is the action that caused the main sheet to strike Ray. Tr. 199:16-17. When the captain executes a gybe maneuver, as Lesniak did here, the main sheet moves across the deck of the boat. Tr. 221:14-25.

14. Lesniak testified that members of his crew told Ray to move “several times” and that the crew members were aware that she did not move–even after Lesniak had called for the gybe maneuver. Tr. 213:22-214:5. For example, Truog was aware that Ray was sitting in front of the main sheet when Lesniak gybed. Tr. 254:25-255:3. Truog saw “the boom [come] over, and that [Ray] was pushed down to the side of the boat.” Tr. 251:9-18.

15. If Lesniak had waited to gybe or made sure [*7] that Ray was in a safe location, Ray would not have been hit by the main sheet. Tr. 202:9-13.

16. After Lesniak did the gybe maneuver, Ray was hit by the main sheet, the force of which threw her from her seated position onto the deck of the boat. Tr. 115:14-20. The main sheet carries a significant amount of pressure, “absolutely” enough to cause a serious injury. Tr. 237:6-25. Lesniak saw the main sheet strike Ray. Tr. 198:25-199:6.

17. The court considered the testimony of various crew members who were on the Celadon during the incident. For example, Dr. Bill Lynch testified about the main sheet hitting Ray. Additionally, he testified that he did not give any safety instructions to Ray, and was not aware of any sailing experience that she had. Tr. 247:1-6.

18. Ray was left with an abrasion on her forehead as a result of the main sheet hitting her. Pl.’s Ex. 2.

19. After Ray was injured, Lesniak did not turn the boat around. Tr. 117:5-12. Lesniak continued with the boat race. Tr. 148:10-18.

B. Breach of Safety Protocol:

1. Ray testified about the instructions she was given when she got on the Celadon. Specifically, Ray stated that she was “told where the lines were” and where to sit. Tr. [*8] 109:18-23. She was given these instructions and told where to sit by a crew member, “Peggy.” Tr. 110:6-9. She was not warned that she “might get hit in the head with a boom or a rope or anything like that.” Tr. 110:10-17. There were also no written instructions on the “hull or deck of the boat or bow or the stern, starboard side” that said where to sit, and no one gave written instructions to Ray when she was on the boat. Tr. 110:18-24. There was also no formal verbal safety briefing. Tr. 111:4-7.

2. Ray did not hear, and “wouldn’t have understood” any instructions on whether the boom or main sheet were going to swing during the course of the race. Tr. 115:1-4.

3. The court also credits the testimony of Ray’s expert Captain Ken Wahl (“Wahl”), who the court qualified as a boating expert and marine safety consultant. Tr. 214:20-215:9. Wahl opined that competitive sailboat racing “requires a large number of experienced crew to adequately handle the fast-paced activities normally observed during this often dangerous and close quarters style of competitive sailing.” Ex. 1 at 8. Wahl further opined that “[o]nly highly experienced persons should be aboard for these events.” Id. Based on his [*9] review of the evidence, Wahl testified that “there appeared to be a lot of people” on the Celadon, and that “safe places . . . were probably a little bit difficult to find.” Tr. 220:1-9.

4. Wahl opined that Lesniak, who had captained hundreds of races, became “complacent” by delegating the “safety orientation” for guests to crew members. Tr. 225:9-226:3.

5. Wahl testified that when a boat race begins, “[t]here’s some very dangerous places to be on board the boat . . . [a]nd it’s certainly not a safe place to be right near the main sheet.” Tr. 221:10-13. Accordingly, Ray, who was seated on the deck of the boat near the main sheet, was in a dangerous position. Tr. 222:1-6.

6. Specifically, Wahl opined that “[m]oving isn’t quite enough” “when somebody doesn’t know anything about a sailboat, because they don’t know where to move to.” Tr. 223:23-25. The proper procedure for a crew member to ensure that Ray was moved safely to another area of the boat was for Lesniak or a crew member to physically ensure that she had been moved to a safer place. Tr. 226:14-227:16. Simply telling a novice passenger like Ray who had never been on a sailboat to move was insufficient, and a breach of safety protocol. [*10] Tr. 227:9-21.

7. Wahl further opined that it was in contravention of boat safety protocol for Lesniak to gybe while Ray was sitting next to the main sheet, as gybing the boat necessarily causes a movement of the main sheet. Tr. 223:14-19. Wahl offered suggestions on what safety protocol Lesniak should have followed in that scenario, such as “[d]elay the gybe, get somebody to move that person, tell them where to sit, where the safe spot is.” Tr. 223:16-22. Lesniak did none of these things.

8. When a captain changes the position of the sails, such as the gybe maneuver that Lesniak performed, Wahl testified that the captain “typically” will call out to the crew and let the crew members know that he will be changing the position of the sails. Tr. 238:16-239:4.

C. Comparative Negligence:

1. Ray was told to move away from the main sheet by multiple crew members, including Truog and Becker, but did not move. Tr. 257:17-20.

2. After getting hit by the main sheet, Ray did not ask anyone for medical attention and did not appear to be in need of any medical attention. Tr. 210:6-23.

3. When Ray got off the Celadon at the conclusion of the race, Lesniak asked her if she was “okay” and she replied that [*11] “she was fine.” Tr. 210:24-25.

4. A few days after the incident, Lesniak contacted Ray to give her the option of going to see Bill Lynch, a crew member on the Celadon during the incident and a doctor, at no cost. Tr. 210:1-5. Ray declined. Tr. 210:1-5.

D. Causation of Traumatic Brain Injury:

1. Two days after the incident, Ray went to Nason Medical Center because she was experiencing “extreme body pain.” Tr. 119:17-24. Within seven days of the incident, Ray began experiencing different symptoms–namely, debilitating nausea and headaches. Tr. 120:11-21. Ray was “extremely” confused when she went to the Medical University of South Carolina (“MUSC”) the week after the incident as a result of her new symptoms. Tr. 121:1-6. At MUSC, Ray was referred to a neurologist who diagnosed Ray with a concussion and prescribed medications for a head injury. Tr. 121:7-25.

2. The only medical expert who testified during the trial was Dr. Marshall Allen White (“Dr. White”), a board-certified neurologist.2 Tr. 8:15-16. Dr. White treats patients with traumatic brain injuries as part of his practice on “nearly a daily basis,” and has done so since 1991. Dr. White has testified in the past as to both the diagnoses [*12] and causation of traumatic brain injuries. The court credits Dr. White as an expert in the field of traumatic brain injuries. Tr. 9:21-10:17. Dr. White examined Ray, and reviewed the following medical records: (1) Nason Medical Center; (2) MUSC; (3) Dr. Jeffrey Buncher, a pain management physician in Charleston, South Carolina; (4) physical therapy records; (5) acupuncture records; (6) neuropsychological testing performed by Dr. Randolph Waid; and (7) psychiatric records from Dr. Kurtzman. Tr. 11:1-21. Dr. White testified that, based on his examination of Ray, a review of her medical records, and consulting with peer-reviewed articles, Ray sustained a traumatic brain injury. Tr. 12:5-12. Specifically, Dr. White testified that Ray had the symptoms of a concussion immediately following the incident, in that she was “dazed, confused,” and the morning after the event she felt “that she was not going to be able to wake up,” which Dr. White testified indicated “a level of hypersomnolence, which is typical following a concussion.” Tr. 12:17-13:1. Dr. White further testified that compared to “baseline records” that were “pretty close in proximity” to the incident, he observed that Ray had [*13] “heightened levels of anxiety, trepidation, moodiness, difficulty sleeping after the period of hypersomnolence, difficulty focusing, poor memory, and anxiety levels which were dramatically increased from her baseline levels.” Tr. 13:2-10. All of these symptoms of traumatic brain injury, according to Dr. White, were caused by the head trauma that Ray suffered during the incident. Tr. 13:11-15.

3. According to Dr. White, Ray’s traumatic brain injury is “permanent.” Tr. 13:16-18. All three of these opinions–that Ray had a traumatic brain injury, that the brain injury was permanent, and that the brain injury was the result of the incident on the Celadon–Dr. White testified that he held to a “reasonable degree of medical certainty.” Tr. 13:19-22. Specifically, in his report, Dr. White states that:

It is my opinion to a reasonable degree of medical certainty that Ms. Ray experienced traumatic brain injury as a result of her sailing incident, which occurred in 2014. There is ample evidence of headache, nausea, vomiting, and worsening in her neuropsychiatric syndrome and cognitive abilities following the incident . . . It is further my opinion that Ms. Ray would clearly have academic, social [*14] and occupational difficulties throughout every facet of her life.

Pl.’s Ex. 4. Dr. White further testified that when he examined Ray, she was having emotional and concentration issues that he attributed to her “residual [traumatic brain injury] symptomology,” and that this was consistent with a patient with her level of brain injury. Tr. 28:13-23.

4. Dr. White also testified at length about Ray’s post-incident treatment in the week after the incident, based on his review of her medical records. At Nason, Dr. White testified that no diagnostic testing was performed, and instead Nason “basically gave her pain medicine and sent her home.” Tr. 17:9-11. Then, Ray went to the MUSC emergency room, where she was “evaluated and treated” for “neck and back pain.” Tr. 17:14-15. Ray then returned to MUSC with “complaints of pain,” and returned once again within five days of the injury “complaining of headaches” as well as nausea and vomiting. Tr. 17:19-23. These symptoms of headaches, nausea, and vomiting, were, Dr. White testified, symptoms of a concussion. Tr. 18:11-14. Based on his review of Ray’s medical records and after taking her medical history, Dr. White concluded that Ray had “a lot” of [*15] the symptoms of the postconcussive syndrome. Tr. 20:5-9.

5. Lesniak argued at various points during the bench trial that Ray did not immediately experience any symptoms of headaches, nausea, and vomiting while on the Celadon or the next day. However, Dr. White testified that there can be “delayed effects from concussion.” Tr. 35:24. Furthermore, Ray had consumed at least one beer immediately before the incident. Alcohol consumption, Dr. White testified, would impair Ray’s ability to recognize her symptoms. Tr. 36:6-11.

6. Dr. White testified that postconcussive headaches such as the ones that Ray experienced can be developed “within seven days of the concussion itself.” Tr. 18:22-24. Indeed, Dr. White testified on the types of symptoms during the “days and weeks” after a concussion, and stated that there can be “difficulty concentrating, moodiness, hypersomnolence . . . [a]nxiety . . . headaches, nausea, and vomiting.” Tr. 19:1-17.

7. Ray had a CT scan done at MUSC, which had normal results, but Dr. White testified that the normal CT scan did not disturb his opinion that Ray had a traumatic brain injury, as mild traumatic brain injury patients will have “under almost all circumstances [*16] . . . normal imaging.” Tr. 21:18-22:2. Indeed, Dr. White testified that a normal CT scan was “expected” for patients with mild traumatic brain injury. Tr. 22:3-6.

8. The court considered that Ray was not diagnosed with traumatic brain injury, or indeed any injury at all, by any emergency room physicians in her visits to Nason or the MUSC ER. But, according to Dr. White, the peer-reviewed literature in the field is clear that mild traumatic brain injuries “can be overlooked,” even by emergency room physicians. Tr. 36:2-5. Furthermore, in none of the medical visits that Ray had in the immediate aftermath of the incident did she have any cognitive testing done that would have detected such cases of traumatic brain injury. Tr. 52:11-60:4.

9. Dr. Kurtzman, a psychiatrist who examined Ray on May 1st before the incident, indicated that Ray was working on her graduate thesis and had no “uncontrolled anxiety or crying spells.” This psychiatric record is closest in proximity to the incident. Tr. 14:13-15:11. Dr. Kurtzman’s psychiatric record further indicates that as of May 1st, Ray was a “student, working doing marketing, volunteering, and doing research–all while supporting herself financially.” [*17] Tr. 15:12-20. In his treatment notes for Ray after the incident, Dr. Kurtzman stated that Ray had “suffered . . . emotionally and physically from an injury sustained from being hit by a sailboat boom . . . I’m concerned about her emotional prognosis and her emotional upset secondary to the accident.” Tr. 23:6-24:4. Dr. Kurtzman also prescribed Ray the medication Adderall, which Dr. White testified is an “amphetamine stimulant” that is “used for patients with [traumatic brain injury] who are having difficulty concentrating.” Tr. 24:5-15. Concentration and attention problems such as those treated with Adderall are consistent with the diagnosis of mild traumatic brain injury, Dr. White testified. Tr. 24:16. Dr. White further testified that during his examination and interview with Ray, she stated that she experienced those symptoms for the first time after the date of the incident. Tr. 24:19-22. Ray testified that she had never been prescribed Adderall or psychostimulants before the incident. Tr. 101:14-102:7. At the direction of her doctor, Ray has been taking Adderall in increasing doses since the incident. Tr. 126:22-11.

10. The court acknowledges that prior to the incident, Ray was [*18] on the medication Klonopin to treat anxiety. Tr. 16:2-9. However, Dr. Kurtzman was on a successful program to wean Ray off of Klonopin. Tr. 16:10-16. Ray testified that she was in the process of “taper[ing] off” the anti-anxiety medication. Tr. 102:16-103:4. The court also acknowledges that Ray suffered from general anxiety disorder, which can have symptoms similar to those found in someone with a concussion. Relatedly, the court has considered Ray’s testimony about the circumstances of her unfortunate upbringing, including her time in foster care and her intermittent history with prescribed antidepressants and anti-anxiety medication. Tr. 92:1-99:3. The court credits Dr. White’s opinion–that the temporal relationship between the incident and the onset of symptoms supports a finding that Ray was not suffering from her historical general anxiety disorder, but from the head trauma she received as a result of the incident. Tr. 48:4-20.

11. Ray was seen by Dr. Woodard, a neurologist at MUSC, “several months” after the incident. Dr. Woodard also diagnosed Ray as having postconcussion syndrome, and placed her on gabapentin and nortriptyline. Nortriptyline is used to treat headaches, while [*19] gabapentin is used to treat headaches, mood disturbances, and sleep. Tr. 20:12-21:14.

12. On July 28, 2015, Ray had neuropsychological testing, which discerns whether there are “cognitive or emotional deficits related to injury” performed by Dr. Randolph Waid. Tr. 25:1-14. Specifically, Dr. Waid employed the Conners Continuous Performance Test II to assess Ray’s “attentional abilities.” Tr. 25:14-24. Based on Ray’s pre-incident level of functioning, Dr. Waid felt that Ray’s concentration abilities, which were in the ninth percentile, were low. Tr. 26:2-5. Ray had a “very high GPA” in her college and graduate work before the incident. Tr. 26:11-12. Ray had a 3.7 GPA at the College of Charleston. Tr. 101:5-7. The cause of the decrease in Ray’s attention between college and the day that Dr. Waid performed his neurophysical testing was, in Dr. White’s opinion, the traumatic brain injury that she suffered as a result of the incident. Tr. 26:15-18.

13. Ray also saw Dr. Jeffrey Buncher for injuries related to the incident. Ray had pain management issues before the incident, specifically with chronic neck and back pain. Ex. 8. But Ray’s pain problems with her sacrum were, in Dr. White’s opinion, [*20] “exacerbated” by the incident. Tr. 27:1-21.

14. Dr. White offered a future treatment plan to treat Ray’s permanent condition and opined that “there are a number of interventions that ought to be taken in her care that are currently not being taken” and that Ray was not receiving treatment from any doctors who treated traumatic brain injuries. Tr. 30:1-32:2. Dr. White also testified about the cash prices of the drugs necessary for the future treatment plan. Tr. 32:14-33:15.

15. The court also considered the testimony of Chad Houfek (“Houfek”), an acupuncturist and the owner of Charleston Community Acupuncture. Tr. 81:11-23. Houfek knew Ray as a patient as well as a volunteer at Charleston Community Acupuncture. Tr. 82:2. In her capacity as a volunteer, Ray worked answering phones, scheduling appointments, and also helped with bookkeeping. Tr. 82:11-83:8. Houfek testified about how Ray was different after the incident, from a treatment perspective, explaining that she came in for acupuncture a week after the incident, and that “she had a big mark on her temple, and she was very upset, she was crying and very scared, didn’t really know what to do, and she had a lot of neck pain.” Tr. 83:9-19. [*21] When Ray had her acupuncture appointment on May 28th, approximately one week after the incident, Houfek recorded in his session notes that Ray was “postconcussion,” and that what she was experiencing included sensitivity to stimulus and headaches. Tr. 84:9-18. After the incident, Houfek continued to treat Ray, and stated that he was treating her mostly for neck pain and lower back pain, as well as insomnia, and “extreme emotional.” Tr. 87:4-9.

16. Houfek also testified about the changes in Ray as a volunteer after the incident. Before the incident, Houfek described Ray as “awesome,” as an employee who was “very friendly,” who “always showed up on time,” and “took initiative.” Tr. 85:7-15. But after the incident, Houfek testified that Ray was “always late,” “very very scattered,” and that “communicating with her was difficult.” Tr. 85:17-25. Houfek further testified that he had not experienced any of those problems with Ray before the incident. Tr. 86:2-4.

17. The court has considered the reports and treatments notes of the doctors, including pain management specialists and neurologists, that Ray has seen since the incident. Ex. 10. In conjunction with Dr. White’s testimony, these medical [*22] documents support the conclusion that Ray suffered a traumatic brain injury as a result of the injury she suffered on the Celadon.

18. Prior to the incident, Ray testified that “[l]ife was great,” and that she “was excited for finishing” her master’s thesis at the Citadel and continuing on for her Ph.D. Tr. 103:18-25. In addition to being in the master’s program at the Citadel, Ray was also working at the restaurant Oak Barrel four nights a week, Tr. 104:19-24, in the tasting room at the restaurant Freehouse two nights a week, Tr. 104:15-105:1. She was also volunteering with Charleston Community Acupuncture and doing research. Tr. 105:17-24. She testified that despite this busy schedule she never had any problems with attention before the incident. Tr. 106:1-11.

19. Since the incident, Ray has had suicidal ideations. Tr. 124:22-125:9. She has also been suffering from giggling issues and other inappropriate responses to stimuli, which never occurred before the incident. Tr. 127:19-25. As a result of these issues, as well as the problems in concentration and attention, her professors at the Citadel have expressed “legitimate concerns” about her ability to complete the graduate program. [*23] Tr. 127:19-25; 132:1-9. Furthermore, since the incident Ray has lost her jobs at the Oak Barrel and the Freehouse. Tr. 128:16-19. Ray attributes both of these job losses to the incident. For example, as a result of the injuries she sustained, Ray has had to ask her customers and friends to come and help her while she was at the bar. Tr. 129:1-10. Additionally, when there were stimuli such as music or “certain sounds,” Ray would run out of the bar and “leave the entire bar empty, and cry in the alley.” Tr. 129:4-11. Before the incident, Ray did not have these problems at work.

20. Since the incident, Ray has had physical and psychological problems. Physically, she has had trouble sleeping, has “nerve pain down the back of her leg,” and tension headaches. Tr. 130:13-131:21. She now also has communication issues, which have affected her interpersonal, professional, and educational goals. Tr. 136:21-137:13.

21. The court considered the medical bills that Ray has incurred, between the date of the incident and present. Pl.’s Ex. 10. Ray does not have health insurance. Tr. 123:4-7. The total medical bills for her injury totaled $20, 480.70. Pl.’s Ex. 10. By the time of trial, Ray had incurred [*24] the following expenses to treat her injuries:

a. Nason Medical Center $127.00
b. MUSC $4,654.00
c. MUSC Physicians $1,194.00
d. Dr. Waid $1,125.00
e. Dr. Kurtzman $2,050.00
f. Dr. Buncher $5,945.00
g. Charleston Community Acunpuncture $3,130.00
h. EnterpriseRx $74.82
i. Publix Pharmacy $228.36
j. Walgreens Pharmacy $1,952.52
Total: $20,480.70

2 Lesniak objects to allowing Dr. White to testify on the subject of future treatment. However, Ray disclosed Dr. White as one of her treating physicians and produced Dr. White’s medical evaluation of Ray, wherein Dr. White opined that Ray had sustained a permanent traumatic brain injury. The court is convinced that Dr. White’s written report and opinion of Ray’s permanent injury gave Lesniak adequate notice that Ray would need continued medical evaluation and treatment for her condition for the rest of her life. Ray disclosed Dr. White as an expert in neurological medicine and pain management in compliance with all relevant expert disclosure requirements and deadlines. Lesniak made the decision to decline to take Dr. White’s deposition, offer his own medical expert disputing the diagnosis of traumatic brain injury or offer an alternative future treatment plan, or to request any additional information from Dr. White regarding his evaluation of Ray. At the very least, Lesniak was on notice that as a result of the incident, Ray had already spent a significant amount of money on medical treatment including $2,255.70 on medication alone. Certainly, Ray’s medical bills were turned over during discovery. Therefore, the court overrules Lesniak’s objection.

III. CONCLUSIONS OF LAW

Based on the testimony of all of Lesniak’s crew members and all experts, including Ray’s expert Captain Wahl, Lesniak was negligent in doing a gybe maneuver when he and his crew members knew or should have known that Ray was sitting in front of the main sheet which is a dangerous place to sit. Prior to undertaking the gybe maneuver during the sailboat race, Lesniak had a duty to: (1) properly administer safety briefings to Ray that included where the safe places to sit on the boat were during the race; (2) warn Ray that the gybe maneuver was going to be undertaken; (3) not gybe until Ray was no longer sitting in front of the main sheet; and (4) not hit Ray with the main sheet rope during the gybe maneuver. A failure to follow safety precautions, including telling Ray where to move and delaying the gybe maneuver until Ray had moved to a safe place, was [*25] a breach of Lesniak’s duty to Ray. The court further finds that it was completely foreseeable to Lesniak that Ray could be injured by his failure to warn her that a gybe maneuver was going to be undertaken that would involve moving the main sheet that she was sitting directly in front of, and his failure to prevent the main sheet from hitting Ray. Lesniak’s negligence was a proximate cause of Ray’s injuries; but for this breach of duty, Ray’s injuries would not have occurred.

However, Lesniak has presented sufficient evidence to support the allegation in his Answer that Ray was comparatively negligent. Specifically, Ray failed to pay attention to warnings from multiple crew members to move from her position in front of the main sheet rope. Ray was to blame, in part, for being hit by the main sheet. The court finds that Ray was 25% to blame, and so reduces her damages by 25%.

As a direct result of Lesniak’s failure to exercise the proper degree of skill required, Ray sustained injuries and damages, as discussed below. In making the above findings of fact, reference has been made to pertinent portions of the testimony and exhibits introduced into evidence; however, the court has taken [*26] into consideration all of the evidence presented. The court specifically finds the evidence, after considering the appearance, demeanor and qualifications of the witnesses and the testimony as a whole, supports each of its findings by a preponderance of the evidence.

A. Jurisdiction and Applicable Law

Federal admiralty jurisdiction exists where, as here, conditions of both (1) location and (2) a connection with maritime activity are satisfied. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S. Ct. 1043, 130 L. Ed. 2d 1024, (1995). Admiralty jurisdiction extends to injuries involving recreational vessels such as the Celadon. See Oliver by Oliver v. Hardesty, 745 F.2d 317, 320 (4th Cir. 1984) (admiralty jurisdiction exists over a case involving a collision between a swimmer and a pleasure boat because the claim was based on an allegation of negligent navigation of the boat). The portion of the Charleston Harbor where the incident occurred constitutes navigable waters of the United States, and being struck by the main sheet of a racing sailboat has a connection to maritime activity. Accordingly, the court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1333. See Sisson v. Ruby, 497 U.S. 358, 364-65, 110 S. Ct. 2892, 111 L. Ed. 2d 292 (1990).

Cases involving a tort committed on navigable waters are governed by federal admiralty law. Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir. 1981) (citation omitted). However, if there is no admiralty rule for a particular [*27] issue, the court looks to state law to supply the rule of decision. Id. “This rule is especially true in negligence causes of action,” which is the cause of action that Ray asserts. Schumacher v. Cooper, 850 F. Supp. 438, 447 (D.S.C. 1994) (citation omitted). Therefore, to the extent admiralty law is not directly on point, ordinary negligence law applies.

B. Lesniak’s Liability

To establish her claim, Ray must prove that Lesniak’s negligent operation of the Celadon harmed her. The elements of negligence are duty, a breach of that duty, proximate cause, and resulting injury. Schumacher, 850 F.Supp. at 447 (internal citations omitted).

a. Duty

It is well-established in general maritime law that a vessel operator has a duty to exercise reasonable care for the safety of his passengers. See Bubla v. Bradshaw, 795 F.2d 349, 353 (4th Cir. 1986) (quoting Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959)). Lesniak was the captain, and so was in charge of the vessel at the time of Ray’s injury. As such, he was charged with a duty of care to his passengers. This standard of care owed to a passenger by a vessel operator under maritime law is reasonable care under the circumstances at that particular time in each case. Id. “The extent to which circumstances surrounding maritime travel are different than those encountered in daily life and involve more danger to passengers, will determine [*28] how high a degree is reasonable in each case.” Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989) (quoting Rainey v. Paquet Cruises, Inc., 709 F.2d 169, 172 (2nd Cir. 1983)). In this case, the circumstances surrounding a sailboat participating in a race in the Charleston harbor call for a heightened degree of care. Additionally, before stepping on board the Celadon, Ray had never before been on a sailboat, a fact of which Lesniak was unaware of and failed to inquire about.

A vessel operator also “has a duty to maintain a proper lookout by sight and by hearing” while the boat is travelling through navigable waters. Schumacher, 850 F.Supp. at 447. “This duty stems from general concepts of prudent seamanship as well as from the [regulations] governing the navigation of vessels.” Id. As a matter of prudent seamanship, “the performance of lookout duty is an inexorable requirement of prudent navigation.” Anthony v. Int’l Paper Co., 289 F.2d 574, 580 (4th Cir. 1961). Rule 5 of the Inland Navigation Rules states that “[e]very vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.” 33 C.F.R. § 83.05. Rule 5 perpetuates the common-law duty discussed in Anthony. Schumacher, 850 F.Supp. at 448 (citation omitted). It imposes a duty of proper lookout upon the operator of a pleasure [*29] craft such as the Celadon. See Todd v. Schneider, 2003 U.S. Dist. LEXIS 25192, 2003 WL 23514560, at *11 (D.S.C. Dec. 8, 2003). Importantly, “[w]hoever is keeping a lookout must be able to give proper attention to that task and should not . . . undertake duties that would interfere with this function.” Schumacher, 850 F.Supp. at 448 (citation omitted).

“The duty to maintain a proper look-out, whether regulatory or customary, varies with the circumstances of each situation. When circumstances demand unusual care in navigation, such care should be used.” Id. at 449-50 (internal citations omitted). That higher level of care was required here, as Ray was an invited guest aboard a sailboat involved in a race in the Charleston harbor.

Lesniak was the owner, captain, and operator of the sailboat and was in control of its operation at all times. Ray was Lesniak’s passenger and guest. Although Lesniak designated his crewmembers to administer safety instructions to the passengers, as captain, Lesniak was ultimately responsible for the safety of the crewmembers and guests. Thus, Lesniak owed Ray a duty to maintain a proper lookout at all times during the Celadon’s outing.

b. Breach

Ray offered the testimony of Captain Wahl as her liability expert with regard to safe vessel operation. Captain Wahl has extensive knowledge about the safe [*30] operation of vessels. He obtained this knowledge from his many years of personally operating vessels, obtaining credentials, holding an array of maritime positions, authoring several books, and teaching well over 18,000 students in the subject. The court finds the testimony of Captain Wahl to be credible. Lesniak offered no liability expert at trial.

Captain Wahl testified that as the captain of the Celadon at the time of the incident, good seamanship practices required Lesniak to have the ultimate responsibility to look out for persons aboard his vessel–even if he delegated some of those responsibilities to crew members. Wahl testified that this ultimate responsibility includes providing adequate instructions, warnings, guidance, or lessons to all passengers, including late arriving ones, regarding the potential dangers of movement and position on his vessel and how to avoid those dangers. He also testified that looking out for passengers aboard a vessel includes refraining from performing a gybe maneuver until ensuring that all of the passengers are seated safely out of the path of the boom and its related parts such as the main sheet. Captain Wahl further testified that, even if [*31] a passenger is told verbally to move from a certain spot before a maneuver is performed, it would be a best practice to physically ensure that the person, especially if that person is a novice passenger with no sailing experience, has been moved to a safer place on the sailboat before proceeding to perform the maneuver. It is also Captain Wahl’s opinion that only highly experienced persons should be aboard for racing events, because inexperienced persons may not be able to handle the fast-paced activities normally observed during competitive sailing.

The court finds that Lesniak failed to act as a prudent mariner in failing to: (1) provide adequate posted, written, or verbal warnings to Ray regarding the potential dangers of movement and position on the Celadon and how to avoid those dangers; and (2) in failing to make sure that his passengers were in a safe location at all times, especially before performing a gybe maneuver which causes the boom and its related parts to swing quickly from port to starboard or vice versa. The court finds that these acts and omissions constitute a breach of Rule 5 of the Inland Navigation Rules, the common-law lookout duty, and the general duty of due care [*32] under Admiralty and South Carolina law.

c. Causation

General tort principles require a plaintiff asserting a negligence claim to show that the defendant’s breach of duty proximately caused her injuries. Schumacher, 850 F.Supp. at 451. However, a finding that the defendant breached his duty to maintain a proper lookout imposes upon him the burden of showing by clear and convincing evidence that such failure did not contribute to the accident. Id. This burden shift occurs regardless of whether the breach is viewed as a violation of Rule 5 or as breach of the common-law lookout duty. Id.

The court’s determination that Lesniak breached his duty to keep a proper lookout imposes upon him the burden to show by clear and convincing evidence that his breach of duty did not contribute to the incident. The record here does not support such a showing. Therefore, the court concludes that Lesniak’s negligence caused the main sheet to strike Ray’s head and, therefore, Ray’s resulting injuries.

d. Comparative Negligence

Since jurisdiction is premised upon admiralty, federal common law governs. As such, the doctrine of comparative negligence applies. See, e.g., Mullenix v. United States, 984 F.2d 101, 104 (4th Cir. 1993) (citing United States v. Reliable Transfer Co., 421 U.S. 397, 407, 411, 95 S. Ct. 1708, 44 L. Ed. 2d 251, (1975)). Thus, in the context of an admiralty case, damages should “[b]e allocated [*33] among the parties proportionately to the comparative degree of their fault.” Reliable Transfer Co., Inc. 421 U.S. at 411, 95 S.Ct. 1708.

The court finds that Ray’s recovery should be reduced because Ray shares in the fault attributable as a result of the incident. Lesniak is required to prove the elements of duty, breach, causation, and injury as to Ray’s alleged negligence. Schumacher, 850 F. Supp. at 452 (citing Wilson v. Marshall, 260 S.C. 271, 195 S.E.2d 610, 612 (S.C. 1973)). Namely, an individual has a “duty to exercise due care for one’s own safety.” Id. The court finds that Ray’s conduct contributed to her injuries, and reduces her damages by 25%.

The court finds that Ray was instructed by multiple crew members on multiple occasions on safety protocol, including where to sit. Ray admits that she was aware of potential dangers on the Celadon, and that she was told to “get closer together” and to “get more neighborly” in the moments immediately before the main sheet hit her. Lesniak and all four members of his crew who testified at trial indicated that there was a safety protocol, that Becker, an individual with sixty plus years of sailing experience, and her fellow crew member Truog, were delegated the duty of administering safety instructions and watching out for new, inexperienced passengers. Becker and Truog testified at trial [*34] that these were duties bestowed by their captain, Lesniak, and that they had a present-day recollection of communicating with Ray directly. The court further finds that Ray did not follow the instructions to move. Thus, Ray failed to take responsibility for herself, a duty which is imposed under the law. However, the court considers Ray’s inaction against the backdrop of Captain Wahl’s testimony that Ray as a novice passenger would not know what the safe places were on the boat without being physically guided to those places.

C. Damages

Substantive admiralty law governs all cases brought under federal admiralty jurisdiction; however, it does not automatically displace state law. Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 116 S. Ct. 619, 133 L. Ed. 2d 578 (1996). If there is no admiralty law on point, the court may look to the laws enacted by the state legislature or declared to be law by the state’s highest courts. Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir. 1981). Accordingly, the court may look to the law of the State of South Carolina in regard to the award of damages arising out of a negligence cause of action in admiralty. Id.

In a personal injury case such as this, the elements of damages potentially recoverable “include past and future medical expenses, past and future pain and suffering, past and future loss [*35] of income and earning power, disfigurement, loss of enjoyment of life, and loss of family services.” Schumacher, 850 F.Supp. at 453 (citing Watson v. Wilkinson Trucking Co., 244 S.C. 217, 136 S.E.2d 286, 291 (S.C. 1964)). Mathematical precision in ascertaining damages is not required. Brooks v. United States, 273 F.Supp. 619, 629 (D.S.C. 1967). Instead, the injured party must be awarded damages sufficiently proportionate to the injuries sustained. Drennan v. Southern Railway, 91 S.C. 507, 75 S.E. 45 (S.C. 1912).

The evidence in this case reveals Ray has suffered and will suffer such past and future damages, and she is entitled to recover for all of them.

a. Past Medical Expenses

Ray seeks to recover certain expenses for her prior medical care. At trial, she submitted a medical bill summary totaling $20,480.70 in prior care. Those expenses are recoverable, as they consist of services such as emergency medical treatment, imaging, physical therapy, psychiatric treatment, and pain management. Those expenses resulted from Lesniak’s negligence and were reasonably necessary. See Sossamon v. Nationwide Mut. Ins. Co., 243 S.C. 552, 135 S.E.2d 87, 91 (S.C. 1964). Moreover, the court is satisfied that the invoiced amounts are reasonable. See Haselden v. Davis, 353 S.C. 481, 579 S.E.2d 293, 295 (S.C. 2003) (citation omitted). Therefore, the court awards Ray $20,480.70 in past medical expenses.

b. Future Medical Expenses

Ray seeks damages to cover her anticipated future medical expenses. “[R]ecovery of damages based on future consequences of an injury may be had only if [*36] such consequences are reasonably probable or reasonably certain.” Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1160 (4th Cir. 1986). “Reasonably certain” is “a consequence ‘which follows the original act complained of in the usual, ordinary, and experienced course of events.'” Rabb v. Orkin Exterminating Co., 677 F.Supp. 424, 426 (D.S.C. 1987) (quoting Ford v. AAA Highway Express, Inc., 204 S.C. 433, 29 S.E.2d 760, 762 (S.C. 1944)). In other words, damages can be recovered only if there is “[a] greater than 50% chance that a future consequence will occur.” Lohrmann, 782 F.2d at 1160.

Dr. White, the only medical expert offered in this case, testified at trial that Ray’s condition is permanent and will require ongoing future treatment and medication. The court concludes that Ray has established a reasonable certainty that her condition is permanent and will require ongoing future treatment, including seeing a psychiatrist and a neurologist quarterly, and medication, potentially including anti-inflammatories (anti-inflammatory patch), amphetamines or an amphetamine substitute (Nuvigil), a benzodiazepine (Klonopin), a sedative-hypnotic (Belsomra), an anxiolytic (Buspar), and a selective serotonin reuptake inhibitor (Cymbalta). Dr. White testified that Nuvigil costs approximately $800.00 per month, Cymbalta costs approximately $200.00-300.00 per month, and Belsomra costs approximately $400.00-500.00 per month.

Ray’s birthday [*37] is May 8, 1985. At the time of the incident she was 29 years old. Thus, at the time of the incident, Ray had a life expectancy of 52.53 years, or 630.36 months, under S.C. Code Ann. § 19-1-150.

Adjusted for present value,3 the future medications, frequency, current cost, duration, and present value are as follows:

Medication Frequency Current Cost Duration Present Value
Nuvigil annual $9,600/yr 2018-life $330,345
Cymbalta annual $2,400-$3,600/yr 2018-life $82,585-$123,870
Belsomra annual $4,800-$6,000/yr 2018-life $165,170-$206,465

3 Lesniak contends that Ray needs an expert economist on the issue of present value of future damages and needed to present evidence at trial on the calculation of present value discounts. However, he cites no caselaw–and the court is aware of none–that there is a requirement of obtaining expert testimony on the issue of present value of future damages. The court can find no clear requirement in relevant federal case law that plaintiff must present expert evidence of the present value of her claim for future damages. The court draws guidance from the Western District of North Carolina’s recent opinion in Talley v. City of Charlotte, 2016 U.S. Dist. LEXIS 17604, 2016 WL 1212369, at *2 (W.D.N.C. Feb. 12, 2016), appeal dismissed (Aug. 31, 2016), which observed:

[t]he courts are split on whether it is necessary to introduce expert testimony to explain the concept of discounting an award to present value or to supply suggested discount and inflation rates and/or mathematical calculations. While some courts have permitted, for example, a local banker to testify as to the fair return on a safe investment, or a mathematician an actuary, or an accountant to testify concerning the procedure by which the reduction to present value should be calculated, other courts have held that expert testimony is permitted but not required, and that the jury should generally be left to its own discretion as to what discount factors should be used.

Here, the court calculated the present value discounts employing a discount rate of five percent to damages for future medical care. See Faust v. S.C. State Highway Dep’t, 527 F. Supp. 1021, 1036 (D.S.C. 1981), rev’d on other grounds, 721 F.2d 934 (4th Cir. 1983) (“I find that he is entitled to be properly compensated for his pain, suffering, damages and permanent partial disability, before and after trial, and taking into consideration future pain and suffering and discomfort, and reducing that amount to its present cash value by use of a discount rate of five (5%) percent, which this court feels is reasonable and fair.”).

Future [*38] medication costs are increased at an expected inflation rate for prescription drugs of 3.61 percent, compounded annually.4 The present value of the total future medications that Dr. White opined were reasonable and necessary for Ray’s treatment ranges in cost from $578,100 (using the low figures of the cost of medicine needed) to $660,689 (using the high figures of the cost of medicine needed).5 The court awards the average of the cost of medicine needed, and so awards $619,394.50 for future medical expenses associated with her injuries resulting from the May 21, 2014, incident.

4 This rate is based on inflation rates as reported by the Bureau of Labor Statistics for the period 1992-2016.

5 All future medication costs are discounted to present value at a rate of 5 percent, compounded annually. This is a rate that an ordinary person with average financial knowledge, with access to commonly available investment outlets, and facing the full range of financial risks might be expected to earn over a long period of time.

d. Pain and Suffering

Ray’s pain and suffering because of this incident is well documented through her deposition and trial testimony as well as her medical records. She endured months of frequent headaches, nausea, muscle pain, and back pain as a result of her physical injuries. Raven Ray seeks $75,000.00 for past and future pain and suffering. Based on the entire record, the court concludes that $50,000.00 is the appropriate amount of compensation for both past and future pain and suffering. See Schumacher, 850 F.Supp. at 453.

e. Past and Future Emotional Distress

Injured plaintiffs are entitled to recover for mental anguish and permanent emotional [*39] scarring. Steeves v. United States, 294 F. Supp. 446, 458 (D.S.C. 1968). Ray’s severe psychological and emotional injuries because of this incident are well-documented by Houfek. Testimony from Ray and Houfek, in addition to Dr. Kurtzman’s and Dr. Waid’s records, show the extent and severity of Ray’s psychological and emotional injuries proximately caused by Lesniak’s negligence. After a careful review of the entire record, the court finds $75,000.00 for her psychological and emotional injuries reasonable. Therefore, it awards judgment against Lesniak in the amount of $75,000.00 for Ray’s past and future psychological and emotional injuries.

f. Loss of Enjoyment of Life and Permanent Impairment

Next, Ray seeks $100,000.00 as compensation for losing her ability to enjoy the athletic and recreational activities in which she used to participate, as well as her loss of enjoyment of other normal activities of life. Based on the entire record, the court concludes that $100,000.00 is the appropriate amount of compensation for this loss.

Additionally, Ray is permanently impaired due to this traumatic brain injury and must be compensated for her permanent impairment. Ray’s birthday is May 8, 1985. At the time of the incident, she was 29 years old. Thus, [*40] at the time of the incident, Ray had a life expectancy of 52.53 years, or 19,173.45 days, under S.C. Code Ann. § 19-1-150. Finding a valuation of a traumatic brain injury at $20.00 per day to be reasonable, the court awards Ray $383,469.00 for her impairment. In sum, the Court awards Raven Ray $483,469.00 for her loss of enjoyment of life and permanent impairment.

g. Lost Wages/Inconvenience and Disruption of Normal Daily Life

At the time of the incident, Ray was working in the food and beverage industry and attending The Citadel to obtain a graduate degree. Because of her injuries resulting from Lesniak’s negligence, Ray was forced to miss work and experienced difficulty in completing her graduate coursework at The Citadel. The court finds $30,000.00 to be appropriate compensation for Ray’s lost wages and difficulties experienced in completing her graduate coursework at The Citadel. See Schumacher, 850 F.Supp. at 453.

D. Prejudgment Interest

Ray asks the court to add prejudgment interest to her damages. In maritime injury cases, “the awarding of prejudgment interest is the rule rather than the exception, and, in practice, is well-nigh automatic.” U.S. Fire Ins. Co. v. Allied Towing Corp., 966 F.2d 820, 828 (4th Cir. 1992) (citation omitted). The court may decline to award prejudgment interest when it finds that “peculiar [*41] circumstances” would make such relief inequitable. Id. This is an action instituted under the court’s admiralty jurisdiction and no peculiar or exceptional circumstances existed that would prevent Ray from recovering pre-judgment interest. This court, in its discretion, finds no such peculiar circumstances here and finds that Ray is entitled to pre-judgment interest in the amount of $22,952.44 from the date of the accident until the date of this order.

IV. CONCLUSION

Based on the foregoing, it is ORDERED that judgment be entered for Ray against Lesniak in the sum of nine-hundred and fifty-eight, and seven-hundred and fifty-eight dollars and fifteen cents $958,758.15,6 plus prejudgment interest in the amount of twenty-two thousand, nine-hundred and fifty-two dollars and forty-four cents $22,151.44, and postjudgment interest at the legal rate from the date of this order.

6 The tabulation of damages is $1,278,344.20 before the application of a 25% reduction in proportion to Ray’s comparative negligence. After applying the 25% reduction, the total damages award is $958, 758.15.

AND IT IS SO ORDERED.

/s/ David C. Norton

DAVID C. NORTON

UNITED STATES DISTRICT JUDGE

February 22, 2018

Charleston, South Carolina


One box was unchecked in the release which was signed online, and the court would not grant the motion for summary judgment of the defendant because whether or not the release was valid was a decision for the jury.

This judge was either not going to make a decision or only allow the plaintiff to win. However, the defendants set themselves up to lose by having a check box in the release.

Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

State: Florida: United States District Court for the Northern District of Florida, Panama City Division

Plaintiff: Brian Moore

Defendant: North America Sports, Inc., USA Triathlon

Plaintiff Claims:

Defendant Defenses: Assumption of the risk, Release

Holding: for the Plaintiff

Year: 2009

Summary

Having a box unchecked on a release sent the case to trial because the judge would not decide if that made the release valid. Having no jurisdiction and venue clause also created an opening, left unresolved on whether Florida or Montana’s law would apply. If Montana’s law, the releases would be void.

Overall, a poorly prepared or thought-out motion and supporting documents that helped the plaintiff more than the defendant left the defendant in a worse position than before they filed the motion.

Facts

The deceased lived in Montana and signed up in Montana to enter a triathlon in Panama City Beach Florida. In the process of signing up, he signed two releases. One for the website and one for the triathlon. The defendant also stated that the deceased signed two more releases upon registering for the event in Florida. The release signed for the website was not a factor in this decision.

During the swim portion of the triathlon the deceased experienced distress and died three days later.

His survivors filed this lawsuit.

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

The first issue reviewed by the court was the defense of assumption of the risk. The court resolved this issue in favor of the plaintiff in a short paragraph. Whether or not the deceased assumed the risk of his injury is a question for the jury. It cannot be resolved in a Motion for Summary Judgment.

When a participant volunteers to take certain chances, he waives his right to be free from those bodily contacts inherent in the chances taken.” However, it is the jury’s function to determine whether a participant should have anticipated the particular risk, and whether the defendant made the activity as safe as possible.

The second argument made by the plaintiff was whether or not the USA Triathlon was liable as a sanctioning body. “In order for a sanctioning organization, or sponsoring organization, to be liable, it must have some control over the event.” USA Triathlon argued they did not control the event and should be dismissed.

Again, the court stated whether or not USA Triathlon had any control over the event was a question of fact for the jury.

The next issues were the releases. The first issue was what law applied to the releases. There was obviously no jurisdiction and venue clause in the release or because there was an issue of the validity of the release, the court took it upon itself to determine what law applied.

The plaintiff’s argued that Montana’s law should apply. Montana does not allow the use of a release. See Montana Statutes Prohibits Use of a Release.

All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.” Mont. Code Ann. § 28-2-702 (2007). However, Plaintiff fails to take into account that first the applicable choice-of-law must be determined, and then the contract is interpreted according to that state’s substantive law.

Since this decision, the statute has been amended to allow the use of releases for sport or recreational opportunities. See Montana Recreation Responsibility Act.

However, the court never made a definitive statement as to whose law would be applied to the releases in this situation.

The next issue was a review of the releases signed on-line when the deceased registered for the event. The on-line release required a box to be checked. In the discovery process, the defendant provided a copy of the release signed by the deceased that had a box that was unchecked.

Defendants provide a printout showing an electronic signature. However, in order to properly exe-cute the waiver, the waivers state that the participant must check the box. Defendants fail to pro-vide any evidence to show a connection between checking the box and an electronic signature appearing in the printout. This lack of evidence leaves us just short of the finish line. Had a proper showing been made, summary judgment for the Defendants might have been warranted. Whether the online wavier was properly executed is a material fact for the jury to decide.

Again, the court saved this issue for the jury. Somehow the deceased was able to register for the event and leave a box unchecked; consequently, the court found one unchecked box was enough to deny a motion for summary judgment as to the validity of the release.

The defendant then argued that there were two additional releases signed by the deceased that would have stopped the plaintiff’s claims. However, the copies the defendant provided did not have signatures on them.

Defendants claim that Rice would have been required to sign two additional waivers in order to complete the onsite registration and be allowed to participate. Defendants do not provide signed copies of these waivers, only blank copies. Plaintiff denies that Rice signed any waiver on the day of the race. The fact that Defendants cannot provide a signed waiver does not exclude testimony on this matter; it merely goes to the weight of the evidence for the jury to consider.

This allowed the plaintiff to plead the deceased never signed the documents and the court again through the decision to the jury.

So Now What?

Remember this decision was decided nine years ago. At that time, the law concerning assumption of the risk has changed, and more courts are determining that the risk the plaintiff suffered was inherent in the sport. Therefore, the plaintiff assumed the risk. Whether or not that evolution in the law has occurred in Florida. I have not researched.

I suspect that USA Triathlon now has written agreements with all races it sanctions setting forth the legal requirements of the relationship. Absent an agreement, an industry practice can easily be proven, but not in a motion for summary judgement. A contract outlining the legal responsibilities between the parties can be used in a motion for summary judgment.

Check Boxes in a Release are landmines waiting to explode.

Why do you have boxes to be checked in a release? They do not support a contract, they only support the theory that the unchecked section is not valid or as in this case the entire release is not valid.

It was just stupid not to have your ducks in a row as a defendant when filing or defending motions for summary judgment. Here the defendants looked bad. Their arguments were strong, but they had no proof to support their arguments. For more on how check boxes can void your release see Trifecta of stupidity sinks this dive operation. Too many releases, operation standards and dive industry standards, along with an employee failing to get releases signed, sunk this ship on appeal.

You can prove the deceased signed a release if you don’t have a copy of the signature on the release, however, to do so you have to be able to prove that your system would not have allowed the deceased to race unless he signed. Nothing like that was introduced for all three of the releases the defense argued the decedent signed.

That does not even take into account novation. The second and third release might have been void because they were not signed for consideration. Only the first release had consideration, a benefit flowing to the decedent, entrance into the race. The decedent was in the race when he signed the second and third release, so there was no new consideration. See Too many contracts can void each other out; two releases signed at different times can render both release’s void.

Two many releases, no contracts between the defendants and this order made the defendants look bad and guaranteed a trial.

Honestly, the decision reads like either a judge, who does not want to make a decision or one that was heavily leaning towards the Plaintiff. At the same time, the defendants made easy for the judge to rule this way. However, there is not much choice, you have to play with the cards the court clerk gives you.

What do you think? Leave a comment.

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Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

Brian Moore, as Personal Representative on behalf of the Estate of Bernard P. Rice, deceased, Plaintiff, vs. North America Sports, Inc., et al., Defendants.

CASE NO. 5:08cv343/RS/MD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, PANAMA CITY DIVISION

2009 U.S. Dist. LEXIS 134557

June 26, 2009, Decided

June 26, 2009, Filed

CORE TERMS: summary judgment, decedent, affirmative defenses, online, registration, fault, box, tortfeasor, choice of law, necessary to complete, sanctioning, registered, printout, Black’s Law Dictionary, last act, material fact, nonmoving party, sole cause, concurrent tortfeasors, health care providers, undisputed, off-campus, designated, causation, lawsuit, movant’s, waived, willful, usage, medical attention

COUNSEL: [*1] For BRIAN MOORE, AS PERSONAL REPRESENTATIVE ON BEHALF OF THE ESTATE OF BERNARD P. RICE, DECEASED, Plaintiff: DIANA SANTA MARIA, LEAD ATTORNEY, AS PERSONAL REPRESENTATIVE ON BEHALF OF THE ESTATE OF BERNARD P. RICE, DECEASE, FORT LAUDERDALE, FL; DOROTHY CLAY SIMS, LEAD ATTORNEY, LAW OFFICE OF DOROTHY CLAY SIMS ESQ, OCALA, FL; JOEL S PERWIN, LEAD ATTORNEY, JOEL S PERWIN PA – MIAMI FL, MIAMI, FL; JOHN N BOGGS, BOGGS & FISHEL – PANAMA CITY FL, PANAMA CITY, FL.

For NORTH AMERICA SPORTS INC, doing business as WORLD TRIATHLON CORPORATION, doing business as IRONMAN TRIATHLON, doing business as FORD IRONMAN FLORIDA, formerly known as IRONMAN NORTH AMERICA, USA TRIATHLON, A FOREIGN COMPANY, Defendants: JASON BERNARD ONACKI, LEAD ATTORNEY, COLE SCOTT & KISSANE PA – PENSACOLA FL, PENSACOLA, FL; LARRY ARTHUR MATTHEWS, LEAD ATTORNEY, MATTHEWS & HIGGINS LLC, PENSACOLA, FL; SHANE MICHAEL DEAN, DEAN & CAMPER PA – PENSACOLA FL, PENSACOLA, FL.

JUDGES: RICHARD SMOAK, UNITED STATES DISTRICT JUDGE.

OPINION BY: RICHARD SMOAK

OPINION

Order

Before me are Plaintiff’s Motion for Summary Judgment on the Affirmative Defenses of Release (Doc. 46); Defendants’ Motion for Summary Judgment and Memorandum in Support (Doc. 79); Plaintiff’s Motion for [*2] Partial Dismissal or for Partial Summary Judgment on the Defendants’ Sixth Affirmative Defense, Alleging Comparative Fault of Bay County Emergency Medical Services (Doc. 86); Plaintiff’s Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125); and Plaintiff’s Motion for Leave to File Reply (Doc. 144).

I. STANDARD OF REVIEW

The basic issue before the court on a motion for summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden, the court must view the movant’s evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). Thus, if reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, a mere ‘scintilla’ of evidence supporting the nonmoving party’s position will not suffice; there must be enough of a showing that the [*3] jury could reasonably find for that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 251, 106 S. Ct. at 2512).

II. FACTS

Decedent, Bernard Rice, registered online in Montana, and participated in the 2006 Ford Ironman Florida Triathlon held in Panama City Beach, Florida on November 4, 2006. Defendant contends that Rice signed numerous waivers to participate in the race; Plaintiff denies that Rice signed any waivers. Decedent experienced distress in the swim course approximately half-way into the second 1.2 mile lap of the 2.4 mile swim course. He received medical attention, but the timing and nature of medical attention are in dispute. Rice died on November 7, 2006.

III. DUTY OWED TO PLAINTIFF

a. Assumption of Risk

Defendants contend that Rice voluntarily assumed the risk of participating in the 2006 Ford Ironman Florida Triathlon. “When a participant volunteers to take certain chances he waives his right to be free from those bodily contacts inherent in the chances taken.Kuehner v. Green, 436 So. 2d 78, 80 (Fla. 1983). However, it is the jury’s function to determine whether a participant should have anticipated the particular risk, and whether the defendant made the activity as safe as possible. Id; O’Connell v. Walt Disney World Co., 413 So. 2d 444, 447 (Fla. Dist. Ct. App. 1982). Therefore, summary judgment is not appropriate on this issue.

b. Sanctioning Body

Defendant [*4] USA Triathlon argues that it had no duty as the sanctioning organization of the 2006 Ford Ironman Florida Triathlon. Defendants cite authority from Illinois, Massachusetts, and New York. In order for a sanctioning organization, or sponsoring organization, to be liable, it must have some control over the event. See Nova Southeastern University, Inc. v. Gross, 758 So. 2d 86 (Fla. 200) (university had duty to graduate student placed in specific off-campus internship which it knew to be unreasonably dangerous); D’Attilio v. Fifth Avenue Business Ass’n, Inc., 710 So.2d 117 (Fla. Dist. Ct. App. 1998) (the party with control over land owes a duty, jury question whether defendant that coordinated and sponsored a fair on city streets, where city controlled amount of law enforcement, had a duty); Rupp v. Bryant, 417 So.2d 658 (Fla. 1982) (Principal and teacher had a duty to injured student because had the authority to control activities of school club even at a meeting held off-campus); Ass’n for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 526 (Fla. Dist. Ct. App. 1999) (camp sponsor could be found negligent for falling to tell lifeguard camper suffered from seizures). It is a question of fact for the jury whether Defendant USA Triathlon had sufficient control over the 2006 Ford Ironman Florida Triathlon because of its sanction of the event to have a duty to the participants. Summary judgment is not appropriate.

IV. WAIVERS

Defendant moves for summary judgment based on [*5] the waivers decedent allegedly executed. Plaintiff moves for summary judgment on Defendants’ third and fourth affirmative defenses which read as follows.

THIRD AFFIRMATIVE DEFENSE

53. On November 6, 2005, and prior to Plaintiff’s claim in this action accruing, Decedent waived any and all claims against USAT and NA Sports. A copy of the waiver is attached as Exhibit “A.” Decedent also entered two additional waivers during race registration. Unsigned copies of the waivers entered by Decedent are attached as Exhibits “B” (although designated as a 2007 waiver, it is otherwise the same as the 2006 waiver executed by Decedent) and “C.” By entering these waivers, Decedent waived the Plaintiff’s ability to bring the claims in the instant lawsuit. Fla.R.Civ.P. § 1.110(d).

FOURTH AFFIRMATIVE DEFENSE

54. On November 6, 2005, and prior to accrual of Plaintiff’s claims in this action, Decedent entered a release of any and all claims against USAT and NA Sports relating to the 2006 Ford Ironman Triathlon. A copy of the release is attached as Exhibit “A.” Decedent also entered two additional releases during race registration. Unsigned copies of the releases entered by Decedent are attached as Exhibits “B” (although [*6] designated as a 2007 release, it is otherwise the same as the 2006 release executed by Decedent) and “C.” By entering these releases, Decedent has precluded Plaintiff’s claims in the instant lawsuit. Fla.R.Civ.P. § 1.110(d).

a. Choice of Law

First, the choice of law governing the waiver must be determined, because the applicable law might not support enforcement of the waiver, which would make the waivers irrelevant. As for the appropriate contract law to apply, the parties agree that Florida choice of law analysis is applicable.
See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021, 85 L. Ed. 1477 (1941).
Both parties also agree that under Florida law, “lex loci contractus” provides that the laws of the jurisdiction where the contract was executed govern interpretation of the substantive issues regarding the contract. Prime Ins. Syndicate, Inc. v. B.J. Handley Trucking, Inc., 363 F.3d 1089, 1091 (11th Cir. 2004). The determination of where a contract was executed is fact-intensive and requires a determination of “where the last act necessary to complete the contract [was] done.Id. at 1092-93 (quoting Pastor v. Union Cent. Life Ins. Co., 184 F.Supp.2d 1301, 1305 (S.D. Fla. 2002)). The last act necessary to complete a contract is the offeree’s communication of acceptance to the offeror. Id. (citing Buell v. State, 704 So.2d 552, 555 (Fla. Dist. Ct. App. 1997)). Here, it is undisputed that the last act necessary to complete the contract occurred in Montana.

Plaintiff points to Montana law, which states, “All contracts [*7] which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.” Mont. Code Ann. § 28-2-702 (2007). However, Plaintiff fails to take into account that first the applicable choice-of-law must be determined, and then the contract is interpreted according to that state’s substantive law. See Charles L. Bowman & Co. v. Erwin, 468 F.2d 1293, 1295 (5th Cir. 1972); See Shapiro v. Associated Intern. Ins. Co., 899 F.2d 1116, 1118 (11th Cir. 1990).

Defendants point to Montana law, which states, “A contract is to be interpreted according to the law and usage of the place where it is to be performed or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.” Mont. Code Ann. § 28-3-102 (2007). The race occurred in Florida; therefore, Florida law applies. In Florida, waivers or exculpatory clauses, although not looked upon with favor, are valid and enforceable if the intent to relieve a party of its own negligence is clear and unequivocal. Banfield v. Louis, 589 So.2d 441, 444-45 (Fla. Dist. Ct. App. 1991) (citing L. Luria & Son, Inc. v. Alarmtec Int’l Corp., 384 So.2d 947 (Fla. Dist. Ct. App. 1980); O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. Dist. Ct. App. 1982); Middleton v. Lomaskin, 266 So.2d 678 (Fla. Dist. Ct. App. 1972)).

b. Online Waivers

On November 6, 2005, Rice registered online for the 2006 Ford Ironman Florida Triathlon, which includes two waivers. In order to properly execute both waivers, the participant had [*8] to check two separate boxes. While both sides agree that Rice registered himself online, it is in dispute whether the boxes were checked. The first waiver only applies to the active.com website, which advertises various races and allows participants to fill out online registrations. However, the website has nothing to do with the actual race and is not a party to this suit. The second online waiver applies to Defendants. Defendants contend that the online registration could not be completed unless the boxes were checked, but Plaintiff contends that the printout from the online registration provided by Defendants does not contain any checked boxes (or any boxes). Whether the online wavier was properly executed is clearly in dispute.

Defendants provide a printout showing an electronic signature. However, in order to properly execute the waiver, the waivers state that the participant must check the box. Defendants fail to provide any evidence to show a connection between checking the box and an electronic signature appearing in the printout. This lack of evidence leaves us just short of the finish line. Had a proper showing been made, summary judgment for the Defendants might have been [*9] warranted. Whether the online wavier was properly executed is a material fact for the jury to decide.

c. Onsite Registration

Defendants claim that Rice would have been required to sign two additional waivers in order to complete the onsite registration and be allowed to participate. Defendants do not provide signed copies of these waivers, only blank copies. Plaintiff denies that Rice signed any waiver on the day of the race. The fact that Defendants cannot provide a signed waiver does not exclude testimony on this matter; it merely goes to the weight of the evidence for the jury to consider.

V. BAY MEDICAL

Plaintiff moves for dismissal, or summary judgment, on Defendants’ sixth affirmative defense, which alleges that Bay Medical Emergency Medical Services was “the sole cause or contributing cause of the injuries and harm alleged by Plaintiff.” Plaintiff repeats the exact same argument in its Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125). Plaintiff argues that this is not an affirmative defense, but rather is a traditional basis for denying causation, on the ground that another entity was solely at fault. An affirmative [*10] defense is a defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s claim, even if all the allegations in the complaint are true. Black’s Law Dictionary (8th ed. 2004). Defendants contend that Florida Statute § 768.81(3) permits a defendant to apportion fault to a non-party whose negligence contributed to the plaintiff’s injury or death.

The Florida Supreme Court held that “apportion[ing] the loss between initial and subsequent rather than joint or concurrent tortfeasors…cannot be done.” Stuart v. Hertz Corp., 351 So.2d 703, 706 (Fla. 1977). Concurrent tortfeasors are two or more tortfeasors whose simultaneous actions cause injury to a third party. Black’s Law Dictionary (8th ed. 2004). Here, Defendants and Bay Medical Emergency Medical Services are not concurrent tortfeasors, because their actions could not have occurred simultaneously. Florida law clearly states:

“[O]riginal tortfeasor is liable to victim not only for original injuries received as result of initial tort, but also for additional or aggravated injuries resulting from subsequent negligence of health care providers, even though original tortfeasor and subsequently negligent health care providers are independent tortfeasors. Ass’n for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 526 (Fla. Dist. Ct. App. 1999).

Therefore, Defendants’ sixth affirmative defense is dismissed. [*11] Defendants are not entitled to include Bay Medical Emergency Medical Services on the verdict form for the jury’s consideration, but Defendants are permitted to argue that Bay Medical Emergency Medical Services were the sole cause of the injuries and harm alleged by Plaintiff as it relates to causation.

VI. CONCLUSION

IT IS ORDERED:

1. Plaintiff’s Motion for Summary Judgment on the Affirmative Defenses of Release (Doc. 46) is denied.

2. Defendants’ Motion for Summary Judgment and Memorandum in Support (Doc. 79) is denied.

3. Plaintiff’s Motion for Partial Dismissal or for Partial Summary Judgment on the Defendants’ Sixth Affirmative Defense, Alleging Comparative Fault of Bay County Emergency Medical Services (Doc. 86) is granted.

4. Plaintiff’s Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125) is denied as moot.

5. Plaintiff’s Motion for Leave to File Reply (Doc. 144) is denied as moot.

ORDERED on June 26, 2009.

/s/ Richard Smoak

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE


Twenty Years ago, releases were void in New York, here; a release stopped a claim for an injury from a plaintiff playing flag football

New York has a statute that voids releases if used by places of amusement where you pay to enter. Issue in this case was, did the plaintiff pay to enter the field or pay the league.

By paying the league, he did not pay a place of amusement, and the release stopped his claims.

Marcf v. Middle Country Center School District, Long Island Flag Football League, Inc. et. Al. 57 Misc. 3d 1225(A); 2017 N.Y. Misc. LEXIS 4717; 2017 NY Slip Op 51678(U)

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

Plaintiff: Murat Marcf

Defendant: Middle Country Center School District, Long Island Flag Foot-Ball League, Inc. and Long Island Flag Football, Inc.,

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Defendant

Year: December 2017

This case is one of many showing how release law has changed over the years. New York was a state that once barred releases and now easily enforces them. If you use releases, you must stay current on the law affecting your release. You probably also need to have your release updated. Contact me if you need your release checked.

Summary

New York GOL § 5-326 states that in New York places of amusement, where the patrons pay to enter or play are void. Here the place of amusement was a football field owned by the defendant. However, the plaintiff did not pay the defendant to play on the field; he paid the flag football league so the release he signed was valid and stopped his claims.

Facts

The plaintiff was injured playing flag football. His flag football game was part of a league. The plaintiff paid the league to play, and the league organized games and places to play.

The plaintiff jumped to receive a pass and landed on a concealed sprinkler head inuring is foot. He sued to recover for his injuries. The field he was playing on was owned by the defendant school district.

Before playing the plaintiff signed a release. The defendants filed a motion to dismiss the plaintiff claims based upon the release. The following is the court’s analysis and dismissal of the plaintiff’s complaint.

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

The court thoroughly went through release law in New York. The court referred to the release as documentary evidence that must resolve all factual issues if the motion was to be granted.

For the release to be valid, the terms of the release must be clear, unambiguous and conclusively dispose of the matter. A release is a contract and will be governed by contract law. If the release is not void by statute or public policy a release absolving a party of negligence will be enforced.

The court found the language of the release was clear and unambiguous and thus enforceable and binding upon the parties. The release is valid and enforceable unless the plaintiff claims duress, illegality, fraud or mutual mistake. Here the plaintiff did not plead any of those.

Plaintiff in this matter makes no claim of duress, illegality, fraud, or mutual mistake in the signing of the subject Release. Instead, plaintiff alleges in opposition to the motion that the Release is void as against public policy pursuant to GOL § 5-326, and that defendant is, therefore, barred from relying on the Release in seeking dismissal of the plaintiff’s complaint. GOL § 5-326 renders void and unenforceable agreements that exempt certain places of public amusement, recreation and similar establishments from liability.

General Obligations Law § 5-326 was enacted to stop gyms from using a release. The courts have not looked at the statute from stopping places of amusement from using a release.

In general, when a participant pays a fee to use recreational facilities, or pays league fees and the league pays for use of those facilities, a waiver and release of liability signed by the participant is void pursuant to GOL § 5-326 To void a release of liability executed by a user of a recreational facility pursuant to GOL § 5-326, there must be an evidentiary showing that the individual paid a fee for use of the facility…

Here the plaintiff did not pay to use the field, the place of amusement. The plaintiff paid to join the league. The field was used for free by the league.

A plaintiff’s complaint will be properly dismissed pursuant to CPLR 3211(a)(5) where the plaintiff claims that the Release is void pursuant to GOL §5-326, but fails to establish that he or she paid a fee directly to the owner or operator of the recreational facility for use of the facility where the alleged injury occurred…

Because the plaintiff did not pay the “place of amusement” the owner of the field, GOL §5-326 did not apply.

So Now What?

Release law evolves, constantly. The evolution of releases in New York went from they were void because of GOL §5-326, to unless the plaintiff can prove an exact relationship to the defendant and the statute the release will be valid.

If you use a release, you must stay current on release law. Read these articles and if your release has not been updated in a while contact me.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

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

   

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

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

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


Marcf v. Middle Country Center School District, LONG ISLAND FLAG FOOTBALL LEAGUE, INC. et. Al. 57 Misc. 3d 1225(A); 2017 N.Y. Misc. LEXIS 4717; 2017 NY Slip Op 51678(U)

Marcf v. Middle Country Center School District, LONG ISLAND FLAG FOOTBALL LEAGUE, INC. et. Al. 57 Misc. 3d 1225(A); 2017 N.Y. Misc. LEXIS 4717; 2017 NY Slip Op 51678(U)

Murat Marcf, Plaintiff(s), against Middle Country Center School District, LONG ISLAND FLAG FOOTBALL LEAGUE, INC. and LONG ISLAND FLAG FOOTBALL, INC., Defendant(s).

3015-2016

SUPREME COURT OF NEW YORK, SUFFOLK COUNTY

57 Misc. 3d 1225(A); 2017 N.Y. Misc. LEXIS 4717; 2017 NY Slip Op 51678(U)

December 11, 2017, Decided

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

CORE TERMS: league, football, flag, void, documentary evidence, signing, public policy, establishment, unambiguous, supporting papers, recreational facilities, unenforceable, participating, conclusively, recreation, amusement, playing, binding, matter of law, causes of action, entitlement, enforceable, illegality, gymnasium, producing, dispose, duress, mutual, exempt, facie

HEADNOTES

Release–Scope of Release–General Obligations Law § 5-326 did not void unambiguous waiver and release of liability where plaintiff paid fee to league to play flag football on field on which he was injured since no part of fee went to field owner. General Obligations Law § 5-326 (Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable).

COUNSEL: [*1] For Plaintiff: Siben & Siben, LLP, Bay Shore, New York.

For Defendants: Havkins Rosenfeld Ritzert & Varriale, New York, New York.

JUDGES: PETER H. MAYER, J.S.C.

OPINION BY: PETER H. MAYER

OPINION

Peter H. Mayer, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the defendants, dated June 15, 2016, and supporting papers; (2) Affirmation in Opposition by the plaintiff, dated August 22, 2016, and supporting papers; (3) Reply Affirmation by the defendants, dated September 15, 2016, and supporting papers; (4) Sur Reply by the plaintiff, dated September 21, 2016, and supporting papers; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the motion (seq. # 001) by defendants, Middle Country Central School District (“School District”) and Long Island Flag Football, Inc., s/h/a Long Island Flag Football League, Inc. and Long Island Flag Football, Inc. (“the League”), which seeks an Order dismissing the plaintiff’s complaint pursuant to CPLR 3211(a)(1) and (5), is hereby granted; and it is further

ORDERED that counsel for defendants shall promptly serve a copy of this Order upon counsel for all parties by First Class [*2] Mail, and shall promptly thereafter file the affidavit(s) of such service with the Suffolk County Clerk.

In this action, plaintiff alleges that on October 4, 2015 he injured his left foot while playing in a League flag football game, when he jumped to catch a pass and landed on a concealed sprinkler head. The game was being played on a field located on the grounds of Newfield High School, which is operated by the defendant School District. Prior to playing in the football game, plaintiff and his teammates signed a Waiver and Release of Liability (“Release”), which states:

In return for my being allowed to participate in any way in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC., I release and agree not to sue the LONG ISLAND FLAG FOOTBALL LEAGUE, INC., its employees directors and non-employees such as referees, coaches, agents, sponsors, and owners of fields used, from all present and future claims made by me or my family, estate, heirs or assigns for property damage, personal injury, or wrongful death arising as a result of my participation in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. and caused by the ordinary negligence of the parties above, wherever, whenever, or however the same may [*3] occur. I understand and agree that those listed above are not responsible for any injury or property damage arising out of my participation out of my participation (sic) in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC., even if caused by their ordinary negligence. I understand that participation in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. involves certain risks including, but not limited to, serious injury, severe economic losses, permanent disability, and even death. I am voluntarily participating in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. with knowledge of the danger involved and agree to accept all risks of such participation. I certify that I am in excellent physical health, and may participate [**2] in strenuous and hazardous physical activities, including the flag football to be played in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. I agree that prior to participating, I will inspect the facilities and equipment to be used, and if I believe anything unsafe, I will immediately advise my coach of said condition(s) and refuse to participate. Permission is granted for me to receive medical treatment, if needed. I also agree to indemnify and hold harmless those listed above for all claims [*4] arising out of my participation in the LONG ISLAND FLAG FOOTBALL LEAGUE, INC. and all related activities. I understand that this document is intended to be as broad and inclusive as permitted by the State of New York and agree that if any portion of this agreement is invalid, the remainder will continue in full legal force and effect. I further agree that any legal proceedings related to this waiver will take place in Suffolk County, New York. I am of legal age and am freely signing this agreement.

We have read this agreement and understand that by signing this form, we are giving up legal rights and remedies and that the terms of this release are binding on each one of us.

The defendants contend in their dismissal motion that the plaintiff assumed the risk of injury while playing in the game, and that by signing the Release, the plaintiff effectively released the defendants from liability for any injuries plaintiff allegedly sustained during the game. Defendants conclude, therefore, that they are entitled to dismissal of plaintiff’s complaint pursuant to CPLR 3211(a)(1) and (5).

Generally, on a CPLR 3211 motion to dismiss, the court will accept the facts alleged in the complaint as true, accord plaintiffs the [*5] benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Walton v New York State Dept. of Corr. Services, 13 NY3d 475, 484, 921 N.E.2d 145, 893 NYS2d 453 [2009], quoting Nonnon v City of New York, 9 NY3d 825, 827, 874 N.E.2d 720, 842 NYS2d 756 [2007]). Pursuant to CPLR 3211(a)(1), a party may move for dismissal of one or more causes of action on the ground that “a defense is founded upon documentary evidence.” Likewise, a party may move for dismissal pursuant to CPLR 3211(a)(5) on the ground that “the cause of action may not be maintained because of … [a] release” of liability.

A motion to dismiss pursuant to CPLR 3211(a)(1) on the ground that the action is barred by documentary evidence may be appropriately granted where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law (see AG Capital Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582, 842 N.E.2d 471, 808 NYS2d 573 [2005]; Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314, 774 N.E.2d 1190, 746 NYS2d 858 [2002]; Leon v Martinez, 84 NY2d 83, 638 N.E.2d 511, 614 NYS2d 972 [1994]; Thompsen v Baier, 84 AD3d 1062, 923 NYS2d 607 [2d Dept 2011]; Rietschel v Maimonides Medical Center, 83 AD3d 810, 921 NYS2d 290 [2d Dept 2011]). In other words, the documentary evidence must resolve all factual issues as a matter of law and conclusively dispose of the plaintiff’s claim (see Palmetto Partners, L.P. v AJW Qualified Partners, LLC, 83 AD3d 804, 921 NYS2d 260 [2d Dept 2011]; Paramount Transp. Sys., Inc. v Lasertone Corp., 76 AD3d 519, 520, 907 NYS2d 498 [2d Dept 2010]).

When a defendant moves for CPLR 3211(a)(1) dismissal based on documentary evidence that the plaintiff signed a release of liability in favor of the defendant, dismissal may be granted where the terms of the release are clear, unambiguous and conclusively dispose of the matter (see Burgos v New York Presbyterian Hosp., 155 AD3d 598, 2017 NY Slip Op 07585 [2d Dept 2017]; Rudovic v Rudovic, 131 AD3d 1225, 16 NYS3d 856 [2d Dept 2015]). In effect, a release is a contract and its construction [*6] is governed by contract law (see Outdoors Clothing Corp. v Schneider, 153 AD3d 717, 60 NYS3d 302 [2d Dept 2017]; Kaminsky v Gamache, 298 AD2d 361, 751 NYS2d 254 [2d Dept 2002]). Absent a statute or public policy to the contrary, a contractual provision absolving a party from its own negligence will be enforced (see Sommer v Federal Signal Corp., 79 NY2d 540, 593 N.E.2d 1365, 583 NYS2d 957 [1992]; Deutsch v Woodridge Segway, LLC, 117 AD3d 776, 985 NYS2d 716 [2d Dept 2014]; Princetel, LLC v Buckley, 95 AD3d 855, 944 NYS2d 191 [2d Dept 2012]). A defendant establishes its prima facie entitlement to dismissal by producing the waiver and release signed by the plaintiff (see Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 NYS2d 348 [2d Dept 2008]; Bufano v National Inline Roller Hockey Ass’n, 272 A.D.2d 359, 707 N.Y.S.2d 223 [2d Dept 2000]).

If the language of a release is clear and unambiguous, the signing of a release is a “jural act” binding on the parties (see Booth v 3669 Delaware, Inc., 92 NY2d 934, 703 N.E.2d 757, 680 NYS2d 899 [2d Dept 1998]; Mangini v McClurg, 24 NY2d 556, 249 N.E.2d 386, 301 NYS2d 508 [1969]). The Court finds that the language of the subject Release is clear and unambiguous and is, therefore, valid, enforceable and binding on the parties (see Lago v Krollage, 78 NY2d 95, 575 N.E.2d 107, 571 NYS2d 689 [1991]; Booth v 3669 Delaware, Inc., 92 NY2d 934, 703 N.E.2d 757, 680 NYS2d 899 [2d Dept 1998]). A release will not be treated lightly, and will not be set aside by a court without a showing of duress, illegality, fraud, or mutual mistake (see Liotti v Galasso, Langione and Botter, 128 AD3d 912, 8 NYS3d 578 [2d Dept 2015]; Seff v Meltzer, Lippe, Goldstein & Schlissel, P.C., 55 AD3d 592, 865 NYS2d 323 [2d Dept 2008]; Shklovskiy v Khan, 273 AD2d 371, 709 NYS2d 208 [2d Dept 2000]; Delaney v County of Westchester, 90 AD2d 819, 455 NYS2d 839 [2d Dept 1982], appeal dismissed 59 NY2d 763 [1983]; Thives v Holmes Ambulance Service Corp., 78 AD2d 651, 432 NYS2d 235 [2d Dept 1980]). Plaintiff in this matter makes no claim of duress, illegality, fraud, or mutual mistake in the signing of the subject Release. Instead, plaintiff alleges in opposition to the motion that the Release is void as against pubic policy pursuant to GOL § 5-326, and that defendant is, therefore, barred from relying on the Release in seeking dismissal of plaintiff’s complaint. GOL § 5-326 renders void and unenforceable agreements that exempt certain [*7] places of public amusement, recreation and similar establishments from liability. In this regard GOL § 5-326 states:

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to [**3] be void as against public policy and wholly unenforceable.

In general, when a participant pays a fee to use recreational facilities, or pays league fees and the league pays for use of those facilities, a waiver and release of liability signed by the participant is void pursuant to GOL § 5-326 (see Falzone v City of New York, 128 AD3d 889, 9 NYS3d 165 [2d Dept 2015]). To void a release of liability executed by a user of a recreational facility pursuant to GOL § 5-326, there must be an evidentiary showing that the [*8] individual paid a fee for use of the facility (see Lago v Krollage, 78 NY2d 95, 575 N.E.2d 107, 571 NYS2d 689 [1991]; Stuhlweissenburg v Town of Orangetown, 223 AD2d 633, 636 NYS2d 853 [2d Dept 1996]; Stone v Bridgehampton Race Circuit, 217 AD2d 541, 629 NYS2d 80 [2d Dept 1995]; Miranda v Hampton Auto Raceway, 130 AD2d 558, 515 NYS2d 291 [2d Dept 1987]).

A plaintiff’s complaint will be properly dismissed pursuant to CPLR 3211(a)(5) where the plaintiff claims that the Release is void pursuant to GOL §5-326, but fails to establish that he or she paid a fee directly to the owner or operator of the recreational facility for use of the facility where the alleged injury occurred (see Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 NYS2d 348 [2d Dept 2008]; Bufano v National Inline Roller Hockey Ass’n, 272 AD2d 359, 707 NYS2d 223 [2d Dept 2000]). When a plaintiff fails to produce any evidence that he or she paid a fee for admission to, or use of, a municipality’s field, GOL § 5-326 will not void a release of liability executed by the plaintiff prior to participating in a sporting event (see Stuhlweissenburg v Town of Orangetown, 223 AD2d 633, 636 NYS2d 853 [2d Dept 1996]). Under such circumstances, the plaintiff’s waiver of liability is enforceable and not void as against public policy in violation of GOL § 5-326 (see Lago v Krollage, 78 NY2d 95, 575 N.E.2d 107, 571 NYS2d 689 [1991]; Lee v Boro Realty, LLC, 39 AD3d 715, 832 NYS2d 453 [2d Dept 2007]; Castellanos v Nassau/Suffolk Dek Hockey, 232 AD2d 354, 648 NYS2d 143 [2d Dept 1996]; Stuhlweissenburg v Town of Orangetown, 223 AD2d 633, 636 NYS2d 853 [2d Dept 1996]; Stone v Bridgehampton Race Circuit, 217 AD2d 541, 629 NYS2d 80 [2d Dept 1995]; Koster v Ketchum Communications, 204 AD2d 280, 611 NYS2d 298 [2d Dept 1994]).

Here, by producing the Waiver and Release signed by the plaintiff, the defendants established prima facie entitlement to dismissal of the plaintiff’s complaint (see Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 NYS2d 348 [2d Dept 2008]; Bufano v National Inline Roller Hockey Ass’n, 272 A.D.2d 359, 707 N.Y.S.2d 223 [2d Dept 2000]). In opposition, plaintiff has failed to show he paid to use the field where he was allegedly injured, or that any portion of his League fee was paid to the School District for the use of the field. In fact, the affidavit of the defendant League’s President, George Hignell, shows [*9] that the School District “did not require a fee for the use of its fields” and that “[n]either the plaintiff nor the [L]eague paid a fee for use of Newfield High School athletic field” where the plaintiff is alleged to have been injured. Therefore, the Release is not void as against public policy pursuant to GOL § 5-326.

Based upon the foregoing, the plaintiff’s complaint is dismissed pursuant to CPLR 3211(a)(1) and (a)(5) (see CPLR 3211[a][1]; CPLR 3211[a][5]; Burgos v New York Presbyterian Hosp., 155 AD3d 598, 2017 NY Slip Op 07585 [2d Dept 2017]; Rudovic v Rudovic, 131 A.D.3d 1225, 16 NYS3d 856 [2d Dept 2015] [**4] ; Brookner v New York Roadrunners Club, Inc., 51 AD3d 841, 858 NYS2d 348 [2d Dept 2008]; Bufano v National Inline Roller Hockey Ass’n, 272 AD2d 359, 707 NYS2d 223 [2d Dept 2000]).

This constitutes the Decision and Order of the Court.

Dated: December 11, 2017

PETER H. MAYER, J.S.C.


Hiett v. Lake Barcroft Community Association, Inc., et al., 244 Va. 191; 418 S.E.2d 894; 1992 Va. LEXIS 69; 8 Va. Law Rep. 3381

Hiett v. Lake Barcroft Community Association, Inc., et al., 244 Va. 191; 418 S.E.2d 894; 1992 Va. LEXIS 69; 8 Va. Law Rep. 3381

Robert David Hiett v. Lake Barcroft Community Association, Inc., et al.

Record No. 911395

Supreme Court of Virginia

244 Va. 191; 418 S.E.2d 894; 1992 Va. LEXIS 69; 8 Va. Law Rep. 3381

June 5, 1992

COUNSEL: Bernard S. Cohen (Sandra M. Rohrstaff; Cohen, Dunn & Sinclair, on brief), for appellant.

Joseph D. Roberts (Slenker, Brandt, Jennings & Johnson, on brief), for appellees.

JUDGES: Justice Keenan delivered the opinion of the Court.

OPINION BY: KEENAN

OPINION

[*192]   [**894]  The primary issue in this appeal is whether a pre-injury release from liability for negligence is void as being against public policy.

Robert D. Hiett sustained an injury which rendered him a quadriplegic while participating in the “Teflon Man Triathlon” (the triathlon) sponsored by the Lake Barcroft  [**895]  Community Association, Inc. (LABARCA).  The injury occurred at the start of the swimming event when Hiett waded into Lake Barcroft to a point where the water reachedhis [***2]  thighs, dove into the water, and struck his head on either the lake bottom or an object beneath the water surface.

Thomas M. Penland, Jr., a resident of Lake Barcroft, organized and directed the triathlon. He drafted the entry form which all participants were required to sign.  The first sentence of the form provided:

In consideration of this entry being accept[ed] to participate in the Lake Barcroft Teflon Man Triathlon I hereby, for myself, my heirs, and executors waive, release and forever discharge any and all rights and claims for damages which I may have or  [*193]  m[a]y hereafter accrue to me against the organizers and sponsors and their representatives, successors, and assigns, for any and all injuries suffered by me in said event.

Evelyn Novins, a homeowner in the Lake Barcroft subdivision, asked Hiett to participate in the swimming portion of the triathlon. She and Hiett were both teachers at a school for learning-disabled children.  Novins invited Hiett to participate as a member of one of two teams of fellow teachers she was organizing.  During a break between classes, Novins presented Hiett with the entry form and he signed it.

Hiett alleged inhis [***3]  third amended motion for judgment that LABARCA, Penland, and Novins had failed to ensure that the lake was reasonably safe, properly supervise the swimming event, advise the participants of the risk of injury, and train them how to avoid such injuries.  Hiett also alleged that Penland and Novins were agents of LABARCA and that Novins’s failure to direct his attention to the release clause in the entry form constituted constructive fraud and misrepresentation.

In a preliminary ruling, the trial court held that, absent fraud, misrepresentation, duress, illiteracy, or the denial of an opportunity to read the form, the entry form was a valid contract and that the pre-injury release language in the contract released the defendants from liability for negligence.  The trial court also ruled that such a release was prohibited as a matter of public policy only when it was included: (1) in a common carrier’s contract of carriage; (2) in the contract of a public utility under a duty to furnish telephone service; or (3) as a condition of employment set forth in an employment contract.

Pursuant to an agreement between the parties, the trial court conducted an evidentiary hearing in whichit determined [***4]  that there was sufficient evidence to present to a jury on the issue of constructive fraud and misrepresentation. Additionally, the trial court ruled that as a matter of law Novins was not an agent of LABARCA, and it dismissed her from the case.

The remaining parties proceeded to trial solely on the issue whether there was constructive fraud and misrepresentation by the defendants such as would invalidate the waiver-release language in the entry form.  After Hiett had rested his case, the trial court granted the defendants’ motion to strike the evidence.  This appeal followed.

[*194]  Hiett first argues that the trial court erred in ruling that the pre-injury release provision in the entry form did not violate public policy. He contends that since the decision of this Court in Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890), the law in Virginia has been settled that an agreement entered into prior to any injury, releasing a tortfeasor from liability for negligence resulting in personal injury, is void because it violates public policy. Hiett asserts that the later cases of this Court have addressed only therelease of liability [***5]  from property damage or indemnification against liability to third parties. Thus, he contends that the holding in Johnson remains unchanged.  In response, LABARCA and Novins argue that the decisions of this Court since Johnson have established  [**896]  that pre-injury release agreements such as the one before us do not violate public policy. We disagree with LABARCA and Novins.

The case law in this Commonwealth over the past one hundred years has not altered the holding in Johnson.  In Johnson, this Court addressed the validity of a pre-injury release of liability for future negligent acts.  There, the decedent was a member of a firm of quarry workers which had entered into an agreement with a railroad company to remove a granite bluff located on the company’s right of way.  The agreement specified that the railroad would not be liable for any injuries or death sustained by any members of the firm, or its employees, occurring from any cause whatsoever.

The decedent was killed while attempting to warn one of his employees of a fast-approaching train. The evidence showed that the train was moving at a speed of not less than 25 miles per hour, notwithstanding the [***6]  railroad company’s agreement that all trains would pass by the work site at speeds not exceeding six miles per hour.

[1] In holding that the release language was invalid because it violated public policy, this Court stated:

[T]o hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct . . . can never be lawfully done where an enlightened system of jurisprudence prevails.  Public policy forbids it, and contracts against public policy are void.

 [*195]  86 Va. at 978, 11 S.E. at 829. This Court emphasized that its holding was not based on the fact that the railroad company was a common carrier.  Rather, this Court found that such  [HN1] provisions for release from liability for personal injury which may be caused by future acts of negligence are prohibited “universally.” 86 Va. at 978, 11 S.E. at 830.

[2] As noted by Hiett, the cases following Johnson have not eroded this principle.  Instead, this Court’s decisions after Johnson have been limited to upholding theright to contract for the release of liability for property damage, as well as indemnification from liability to [***7]  third parties for such damage.

[3] In C. & O. Ry. Co. v. Telephone Co., 216 Va. 858, 224 S.E.2d 317 (1976), this Court upheld a provision in an agreement entered into by the parties to allow the telephone company to place underground cables under a certain railway overpass.  In the agreement, the telephone company agreed to release the C & O Railway Company from any damage to the wire line crossing and appurtenances.  In upholding this property damage stipulation, this Court found that public policy considerations were not implicated.  216 Va. at 865-66, 224 S.E. at 322.

This Court upheld another property damage release provision in Nido v. Ocean Owners’ Council, 237 Va. 664, 378 S.E.2d 837 (1989). There, a condominium unit owner filed suit against the owners’ council of the condominium for property damage to his unit resulting from a defect in the common area of the condominium. This Court held that, under the applicable condominium by-laws, each unit owner had voluntarily waived his right to bring an action againstthe owners’ council for such property damage. 237 Va. at 667, 378 S.E.2d at 838. 1

1 Although the by-law at issue attempted to release the owners’ council for injury to both persons and property, the issue before the Court involved only the property damage portion of the clause.

 [***8]  [4] Other cases decided by this Court since Johnson have upheld provisions for indemnification against future property damage claims.  In none of these cases, however, did the Court address the issue whether an indemnification provision would be valid against a claim for personal injury.

In Richardson – Wayland v. VEPCO, 219 Va. 198, 247 S.E.2d 465 (1978), the disputed claim involved property damage only, although  [**897]  the contract provided that VEPCO would be indemnified against both property damage and personal injury claims.  This  [*196]  Court held that the provision for indemnification against property damage did not violate public policy. In so holding, this Court emphasizedthe fact that the contract was not between VEPCO and a consumer but, rather, that it was a contract made by VEPCO with a private company for certain repairs to its premises.  219 Va. at 202-03, 247 S.E.2d at 468.

This Court also addressed an indemnification clause covering liability for both personal injury and property damage in Appalachian Power Co. v. Sanders, 232 Va. 189, 349 S.E.2d 101 (1986). However, this Court was not required [***9]  to rule on the validity of the clause with respect to a claim for personal injury, based on its holding that the party asserting indemnification was not guilty of actionable negligence.  232 Va. at 196, 349 S.E. at 106.

Finally, in Kitchin v. Gary Steel Corp., 196 Va. 259, 83 S.E.2d 348 (1954), this Court found that an indemnification agreement between a prime contractor and its subcontractor was not predicated on negligence.  For this reason, this Court held that there was no merit in the subcontractor’s claim that the agreement violated public policy as set forth in Johnson.  196 Va. at 265, 83 S.E.2d at 351.

[5] We agree with Hiett that the above cases have notmodified or altered the holding in Johnson.  Therefore, we conclude here, based on Johnson, that the pre-injury release provision signed by Hiett is prohibited by public policy and, thus, it is void. Johnson, 86 Va. at 978, 11 S.E. at 829.

[6] Since we have held that the pre-injury release agreement signed by Hiett is void, the issue whether Novins acted as LABARCA’s agent in procuring Hiett’s signature will not be before the trial court in [***10]  the retrial of this case.  Nevertheless, Hiett argues that, irrespective of any agency relationship, Novins had a common law duty to warn Hiett of the dangerous condition of the uneven lake bottom. We disagree.

[7] The record before us shows that Lake Barcroft is owned by Barcroft Beach, Incorporated, and it is operated and controlled by Barcroft Lake Management Association, Incorporated.  Further, it is undisputed that the individual landowners in the Lake Barcroft subdivision have no ownership interest in the Lake. Since Novins had no ownership interest in or control over the operation of Lake Barcroft, she had no duty to warn Hiett of any dangerous condition therein.  See Busch v. Gaglio, 207 Va. 343, 348, 150 S.E.2d 110, 114 (1966).Therefore, Hiett’s assertion that Novins had a duty to warn him of the condition of the lake bottom, fails as a matter of  [*197]  law, and we conclude that the trial court did not err in dismissing Novins from the case.

Accordingly, we will affirm in part and reverse in part the judgment of the trial court, and we will remand this case for further proceedings consistent with the principles expressed in this opinion. 2

2 Based on our decision here, we do not reach the questions raised by the remaining assignments of error.

[***11]  Affirmed in part, reversed in part, and remanded.