Massachusetts accepts releases and in this case, there was no argument about the validity of the release.
Posted: May 1, 2023 Filed under: Massachusetts, Release (pre-injury contract not to sue), Sports | Tags: Batter, Gross negligence, Massachusetts, recklessness, Release, softball, student athlete Leave a commentCollege softball player struck in the head during batting practice. No negligence because a release stopped simple negligence claims and there was no proof of gross negligence.
Brandt v. Davis, 98 Mass. App. Ct. 734, 159 N.E.3d 191 (Mass. App. 2020)
State: Massachusetts: Appeals Court of Massachusetts, Suffolk
Plaintiff: Brooke A. Brandt
Defendant: Jaclyn Davis & others
Plaintiff Claims: negligence, gross negligence, and recklessness
Defendant Defenses: Release and no duty
Holding: For the Defendants
Year: 2020
Summary
Massachusetts law allows a trial court to dismiss a case when a release is used, and the pleadings do not have the facts necessary to prove reckless conduct or gross negligence on the part of the defendant.
In this case, a batter, the coaches and a university were not liable for the injuries of a player when she walked into the range of a batter.
Facts
The plaintiff played softball as a member of the Suffolk University women’s team, a National Collegiate Athletic Association Division III team. As a condition of her participation on the team, the plaintiff signed a participant waiver and release of liability form. The waiver released Suffolk University and its employees and agents from liability for any claims arising from her participation in the athletic program to the extent “permitted by the law of the Commonwealth of Massachusetts.”
On the day of the accident, the team was practicing in an indoor practice facility. The team engaged in the same general pattern of activities during practices. After warming-up, the team would leave the playing area to get their equipment, and then meet on the field. The players had to leave the playing area to get their equipment, because they hung their equipment outside the playing area on a fence. During their practices, the players would run through a series of rotating stations to develop different skills, each requiring different personal equipment. Before the players began their next station, the head coach would say “go” when she was sure everyone was in position and wearing the proper equipment.
Typically, the batting tees would be set up in batting cages, but they were not on the day of the accident. Moveable screens were available to use as protective barriers, but there was no such barrier between the tees and the field entrance on the day of the accident.
At one of the practice stations, players practiced hitting balls off tees into the netting surrounding the field. The tees were placed off to one side of an opening in the netting, which is where players would enter the area. A portable divider was placed on the opposite side of the opening to separate this station from the live hitting station. The players rotated among stations at the direction of the coaches, and were given between two and five minutes to transition before the coaching staff signaled them to start.
During the March 7, 2014, practice, when it was time for the plaintiff to rotate to the live hitting station, she left the field to retrieve her batting helmet and began jogging back with her helmet in her hand. The plaintiff testified in a deposition that she had to go retrieve her batting equipment, because her first station had been fielding. The plaintiff was “moving quickly” to get back to her station.
When the plaintiff returned to the practice area, the teammate was practicing hitting at the “last tee near the door. [The teammate] was the last to get to [her] tee because of the additional time [she] spent practicing [her] footwork.” The teammate was a left-handed batter, and she chose the tee nearest to the door so that the right-handed players in the station would not be within her swinging radius.
In her deposition, the plaintiff testified that she saw that the teammate had a bat in her hand at the tee station and was preparing to bat. The teammate’s back was to the plaintiff when the plaintiff jogged back on the field. The plaintiff did not know whether the teammate could see her because the teammate’s batting helmet limited her peripheral vision. The plaintiff testified that she saw the teammate’s face, but could not say whether that was when she was leaving the field or upon reentering it. She “didn’t feel like [she] was going to get hit” when she ran behind the teammate.
The plaintiff testified that she yelled, “Wait.” However, she could not remember when she said wait or even whether she said it out loud. She admitted that it was possible that she “said wait only in [her] own head.”
The teammate testified in a deposition that she did not begin swinging until instructed to do so by her coaches, and an assistant coach testified that the players were already swinging before the accident. The teammate stated that she “always look[ed] around … before … every single swing.” She did not see the plaintiff.
After the teammate hit the ball off the tee, the teammate’s swing hit the plaintiff in the back of the head. As a result, the plaintiff suffered a concussion and required four stitches at a hospital. She was released from the emergency department the same evening. Because the plaintiff and the teammate were best friends, the teammate stayed with the plaintiff in her dormitory room the night of the accident. A few days later, however, it became evident that the plaintiff was suffering long-term effects from the accident, including difficulty reading.
Analysis: making sense of the law based on these facts.
The court only looked at whether the summary judgment was correct. The trial court found the plaintiff had not pled or proven any claims that would rise to the level of gross negligence or recklessness. The release was presumed valid and was enforced eliminating any basic claims.
The appellate court first looked at the duty owed by participants in athletic events. That means participants must refrain from reckless conduct. “As is well established, “participants in an athletic event owe a duty to other participants to refrain from reckless misconduct.””
This higher level of care is required because to have a lower standard of care would create litigation anytime players interacted physically. When one engages in a sport, one must accept the level of physical contact to be higher. Failure to do so takes the fun out of the play.
The court found that this same level of care or standard also applied to practices. If the players did not practice at a high level, they would not compete at a higher level.
…the Supreme Judicial Court determined that participants in an athletic event owe each other only a duty to avoid reckless conduct. The court did so because it was “wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition.”
The same reasoning applies to athletic practices. During such practices, players train to improve their competitive performance. Teammates often play against each other as though it is a game through scrimmages and other drills at practice.
The court then proceeded to exam the claims of the plaintiff that the conduct was reckless. Reckless conduct is one person knowing that their actions create a high degree of risk of physical harm and still proceeds to act.
The plaintiff has the burden to prove “the actor knows, or has reason to know … of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk.”
The court reviewed the facts and found there was no reckless conduct on the part of the teammate. The actions of the batter were such that there was no time from when she attempted to swing at the ball until when she made contact with the plaintiff to alter her actions. There was no knowledge of the high degree of physical harm because the batter did not know the plaintiff was behind her. And without that knowledge, there is no recklessness.
The final issue reviewed was whether to the coach, and the universities’ actions were grossly negligent or reckless. The plaintiff’s ordinary or simple negligence claims were barred by the release. Therefore, only the gross negligence claim remained against the university and coaches.
Massachusetts law defines gross negligence as:
“[G]ross negligence is substantially and appreciably higher in magnitude than ordinary negligence. … It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care” The ‘voluntary incurring of obvious risk’ and ‘persistence in a palpably negligent course of conduct over an appreciable period of time’ are among ‘the more common indicia of gross negligence.’ ”
“Gross negligence … is materially more want of care than constitutes simple inadvertence”
Recklessness in this context was defined as:
“[R]eckless conduct involves a degree of risk and a voluntary taking of that risk so marked that, compared to negligence, there is not just a difference in degree but also a difference in kind.”
For the coaches and thus their employer the university to be found liable, the coaches had to have known of the propensity of the batter to act reckless or with intent to harm.
“[I]n order to impose liability on a coach for the conduct of a player, there must be, at the least, evidence of ‘specific information about [the] player suggesting a propensity to engage in violent conduct, or some warning that [the] player … appeared headed toward such conduct as the game progressed.
The trial court and the appellate court found none of the facts necessary to apply either a reckless or gross negligence definition to the actions of the batter or the coaches. In fact, the court found just the opposite.
Here, there is no indication that the teammate intentionally struck the plaintiff or that the teammate had a history of reckless conduct. The plaintiff testified that she and the teammate were best friends, and that she did not think the teammate hit her on purpose.
So Now What?
In some states, releases are part of the law and are rarely challenged unless the release is poorly written. Because of that, colleges and universities are using release to stop claims by student athletes for their injuries.
However, several other courts have indicated they are not sure that releases are the way proceed fearing a release will allow the defendants not to keep their businesses as risk free as possible. It is a constantly changing legal landscape.
For other articles about student athletes see:
For other articles about Massachusetts and releases see:
Massachusetts’s Supreme Court holds that wrongful-death claims are derivative.
Poorly written release in Massachusetts stop lawsuit for falling off a horse during riding lessons.
Duty of care for a Massachusetts campground is to warn of dangerous conditions.
A federal district court in Massachusetts upholds indemnification clause in a release.
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Brandt v. Davis, 98 Mass.App.Ct. 734, 159 N.E.3d 191 (Mass. App. 2020)
Posted: May 1, 2023 Filed under: Massachusetts, Release (pre-injury contract not to sue), Sports | Tags: Gross negligence, Massachusetts, recklessness, Release, softball, student athlete, Suffolk University Leave a comment98 Mass.App.Ct. 734
159 N.E.3d 191
Brooke A. BRANDT
v.
Jaclyn DAVIS & others.1
No. 19-P-1189
Appeals Court of Massachusetts, Suffolk..
Argued May 22, 2020.
Decided November 2, 2020.
Robert A. Curley, Jr., Braintree, for the plaintiff.
Robert B. Smith, Boston, for Jaclyn Davis & another.
Paul F. Lynch, Boston, for Meredith Ball.
Present: Wolohojian, Maldonado, & Ditkoff, JJ.
DITKOFF, J.
[98 Mass.App.Ct. 734]
The plaintiff, Brooke A. Brandt, appeals from a summary judgment dismissing her complaint against her softball teammate, Meredith Ball (teammate), and Suffolk University and her softball head coach Jaclyn Davis (collectively, the Suffolk defendants), arising out of the plaintiff’s injuries sustained during softball practice. We conclude that, like players in an athletic contest, players in an athletic practice owe a duty not to engage in reckless conduct but are not subject to suit for simple negligence. Because of a waiver signed by the plaintiff, the Suffolk defendants are liable only for gross negligence or recklessness. Concluding that the summary judgment record did not raise a triable issue that either the teammate or the Suffolk defendants engaged in reckless conduct or gross negligence, we affirm.
1. Background. The plaintiff played softball as a member of the Suffolk University women’s team, a National Collegiate Athletic Association Division III team. As a condition of her participation on the team, the plaintiff signed a participant waiver and release of liability form. The waiver released Suffolk University and its employees and agents from liability for any claims arising from her participation in the athletic program to the extent “permitted by the law of the Commonwealth of Massachusetts.”
On the day of the accident, the team was practicing in an indoor practice facility. The team engaged in the same general pattern of activities during practices. After warming-up, the team would leave the playing area to get their equipment, and then meet on the field. The players had to leave the playing area to get their equipment, because they hung their equipment outside the playing area on a fence. During their practices, the players would run through a series of rotating stations to develop different skills, each requiring different personal equipment. Before the players began their next station, the head coach would say “go” when she was sure everyone was in position and wearing the proper equipment.
Typically, the batting tees would be set up in batting cages, but they were not on the day of the accident. Moveable screens were available to use as protective barriers, but there was no such barrier between the tees and the field entrance on the day of the accident.
At one of the practice stations, players practiced hitting balls off tees into the netting surrounding the field. The tees were placed off to one side of an opening in the netting, which is where players would enter the area. A portable divider was placed on the opposite side of the opening to separate this station from the live hitting station. The players rotated among stations at the direction of the coaches, and were given between two and five minutes to transition before the coaching staff signaled them to start.
During the March 7, 2014, practice, when it was time for the plaintiff to rotate to the live hitting station, she left the field to retrieve her batting helmet and began jogging back with her helmet in her hand. The plaintiff testified in a deposition that she had to go retrieve her batting equipment, because her first station had been fielding. The plaintiff was “moving quickly” to get back to her station.
When the plaintiff returned to the practice area, the teammate was practicing hitting at the “last tee near the door. [The teammate] was the last to get to [her] tee because of the additional time [she] spent practicing [her] footwork.” The teammate was a left-handed batter, and she chose the tee nearest to the door so that the right-handed players in the station would not be within her swinging radius.
In her deposition, the plaintiff testified that she saw that the teammate had a bat in her hand at the tee station and was preparing to bat. The teammate’s back was to the plaintiff when the plaintiff jogged back on the field. The plaintiff did not know whether the teammate could see her because the teammate’s batting helmet limited her peripheral vision. The plaintiff testified that she saw the teammate’s face, but could not say whether that was when she was leaving the field or upon reentering it. She “didn’t feel like [she] was going to get hit” when she ran behind the teammate.
The plaintiff testified that she yelled, “Wait.” However, she could not remember when she said wait or even whether she said it out loud. She admitted that it was possible that she “said wait only in [her] own head.”
The teammate testified in a deposition that she did not begin swinging until instructed to do so by her coaches, and an assistant coach testified that the players were already swinging before the accident. The teammate stated that she “always look[ed] around … before … every single swing.” She did not see the plaintiff.
After the teammate hit the ball off the tee, the teammate’s swing hit the plaintiff in the back of the head. As a result, the plaintiff suffered a concussion and required four stitches at a hospital. She was released from the emergency department the same evening. Because the plaintiff and the teammate were best friends, the teammate stayed with the plaintiff in her dormitory room the night of the accident. A few days later, however, it became evident that the plaintiff was suffering long-term effects from the accident, including difficulty reading.
The plaintiff asserted claims against the teammate for negligence, gross negligence, and recklessness. The plaintiff asserted claims against the Suffolk defendants for gross negligence and recklessness. In a thoughtful decision, a Superior Court judge determined that the plaintiff needed to show recklessness on the part of the teammate to prevail. Concluding that the summary judgment record did not raise a triable issue of recklessness or gross negligence on the part of either the teammate or the Suffolk defendants, the judge granted summary judgment and dismissed the plaintiff’s complaint. This appeal followed.
2. Standard of review. “Our review of a motion judge’s decision on summary judgment is de novo, because we examine the same record and decide the same questions of law.” Boston Globe Media Partners, LLC v. Department of Criminal Justice Info. Servs., 484 Mass. 279, 286, 140 N.E.3d 923 (2020), quoting Kiribati Seafood Co. v. Dechert LLP, 478 Mass. 111, 116, 83 N.E.3d 798 (2017). “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.” Bank of N.Y. Mellon v. Morin, 96 Mass. App. Ct. 503, 506, 136 N.E.3d 396 (2019), quoting Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177, 37 N.E.3d 39 (2015). See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). “Usually, negligence and recklessness involve questions of fact left for the jury. … However, where no rational view of the evidence would permit a finding of negligence or recklessness, summary judgment is appropriate.” Borella v. Renfro, 96 Mass. App. Ct. 617, 622, 137 N.E.3d 431 (2019).
3. Claims against the teammate. a. Standard of care. As is well established, “participants in an athletic event owe a duty to other participants to refrain from reckless misconduct.” Borella, 96 Mass. App. Ct. at 622, 137 N.E.3d 431, quoting Gauvin v. Clark, 404 Mass. 450, 451, 537 N.E.2d 94 (1989). Accord Gray v. Giroux, 49 Mass. App. Ct. 436, 439, 730 N.E.2d 338 (2000) (“wilful, wanton, or reckless standard of conduct, and not ordinary negligence, is the appropriate standard of care in noncontact sports”). We must determine whether this standard, rather than the ordinary negligence standard, applies to participants in an athletic practice. “Whether a party owes a duty of care to another is a legal question, ‘determine[d] “by reference to existing social values and customs and appropriate social policy.” ‘ ” Williams v. Steward Health Care Sys., LLC, 480 Mass. 286, 290, 103 N.E.3d 1192 (2018), quoting Jupin v. Kask, 447 Mass. 141, 143, 849 N.E.2d 829 (2006). We conclude that the same level of duty — to refrain from reckless conduct — applies to athletic practices as well as to athletic contests.
In Gauvin, 404 Mass. at 454, 537 N.E.2d 94, the Supreme Judicial Court determined that participants in an athletic event owe each other only a duty to avoid reckless conduct. The court did so because it was “wary of imposing wide tort liability on sports participants, lest the law chill the vigor of athletic competition.” Id. This standard “furthers the policy that ‘[v]igorous and active participation in sporting events should not be chilled by the threat of litigation.’ ” Id., quoting Kabella v. Bouschelle, 100 N.M. 461, 465, 672 P.2d 290 (1983).
The same reasoning applies to athletic practices. During such practices, players train to improve their competitive performance. Teammates often play against each other as though it is a game through scrimmages and other drills at practice. See Gauvin, 404 Mass. at 454, 537 N.E.2d 94 (“Players, when they engage in sport, agree to undergo some physical contacts which could amount to assault and battery absent the players’ consent”). Batting practice, for example, requires focus for players to increase the strength and accuracy of their swings. If the players could not practice as vigorously as they play, they would — at best — be unprepared for the challenges of actual competition. At worst, their inability to practice vigorously would expose them to an increased risk of injury during games, especially if they competed against out-of-State teams not so constrained. See Kavanagh v. Trustees of Boston Univ., 440 Mass. 195, 205, 795 N.E.2d 1170 (2003).
We find support for this conclusion in decisions in other States. In Bowman v. McNary, 853 N.E.2d 984, 991 (Ind. Ct. App. 2006), the Indiana Court of Appeals rejected the application of ordinary negligence to an injury caused by an errant swing during a practice for a high school golf team. See id. at 992 (“the rule applies to injuries sustained by any co-participants in a sporting activity, which would include teammates injured during a practice”).2 Moreover, other jurisdictions have applied the recklessness standard for noncontact or noncompetitive athletic activities. See, e.g., Ford v. Gouin, 3 Cal. 4th 339, 345, 11 Cal.Rptr.2d 30, 834 P.2d 724 (1992) (“the general rule limiting the duty of care of a coparticipant in active sports to the avoidance of intentional and reckless misconduct, applies to participants engaged in noncompetitive but active sports activity, such as a ski boat driver towing a water-skier”); Pressler v. U, 70 Ohio App. 3d 204, 205-206, 590 N.E.2d 873 (1990) (yacht race). Accord Ritchie-Gamester v. Berkley, 461 Mich. 73, 89, 597 N.W.2d 517 (1999) (declining to apply ordinary negligence where ice skater skated backwards into plaintiff).
b. Reckless conduct. “The imposition of tort liability for reckless disregard of safety can be based on either a subjective or objective standard for evaluating knowledge of the risk of harm.” Boyd v. National R.R. Passenger Corp., 446 Mass. 540, 546, 845 N.E.2d 356 (2006). The plaintiff has the burden to prove “the actor knows, or has reason to know … of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk.” Id. at 546-547, 845 N.E.2d 356, quoting Restatement (Second) of Torts § 500 comment a, at 588 (1965). We examine the record to determine whether there is evidence from which a jury could conclude that the teammate “engaged in extreme misconduct outside the range of the ordinary activity inherent in the sport.” Borella, 96 Mass. App. Ct. at 624, 137 N.E.3d 431. Viewing the summary judgment record in the light most favorable to the plaintiff, she had no reasonable expectation of proving that the teammate’s actions rose to this level of misconduct.
Contrary to the plaintiff’s claim, a jury could not find that the teammate saw the plaintiff before the injury with enough time to prevent the accident. The plaintiff jogged onto the field near where the teammate was preparing to bat. The plaintiff testified at a deposition that the teammate had her back to the entrance, and she wore a batting helmet that limited her peripheral vision. Although the players were supposed to look around before swinging, the plaintiff did not remember whether the teammate looked around. The plaintiff’s failure of memory in this regard does not directly contradict the teammate’s affirmative recollection that she looked around her before she swung the bat. See Gray, 49 Mass. App. Ct. at 440 n.4, 730 N.E.2d 338 (plaintiff’s assertion that golfer “could have and should have been able to see the plaintiff” did not rebut defendant’s deposition testimony that he did not see plaintiff). But even were we to assume that there was a sufficient factual dispute over whether the teammate looked before she swung, and that the plaintiff was “capable of being seen from at least the time she was passing by the chain link gate until she was hit” (as the plaintiff’s expert opined), there is no rational view of the evidence that the teammate in fact saw the plaintiff before the teammate swung the bat with enough time to prevent the accident. Accordingly, this scenario, as a matter of law, did not rise to the level of recklessness. See id. (golfer was not reckless where he did not see plaintiff before taking his shot and plaintiff was not in intended path of golfer’s shot); Bowman, 853 N.E.2d at 996-997 (plaintiff’s conduct was not reckless where she struck coparticipant with backswing without ascertaining coparticipant’s precise location during high school golf practice).
The plaintiff disputes that the coach had given the “go” signal for the teammate to begin batting. Viewing the evidence in favor of the nonmoving party, even if the teammate swung her bat before the coach told players to start, the teammate’s actions were at most negligent. The plaintiff was a collegiate softball player who had played for fourteen years at the time of her injury. The plaintiff acknowledged that the coaches did “not necessarily hav[e] to micromanage every part” of the practice, and players could begin practicing at their station before the coach said “go.” Based on the players’ experience and skill level, this conduct, as a matter of law, was not reckless. See Borella, 96 Mass. App. Ct. at 624, 137 N.E.3d 431.
The plaintiff claims she said “wait” before the incident. In her deposition, however, the plaintiff did not remember whether she said “wait” out loud or in her head. She did not remember her exact location when she said “wait,” the timing of when she said it, or how loudly she said it. Indeed, the plaintiff stated that she yelled “wait” “almost immediately” before she was struck. Accordingly, there was no evidence that the teammate could or did hear the plaintiff say “wait” before the teammate swung her bat, let alone in enough time to stop her swing. Indeed, the teammate testified in her deposition that she did not hear the plaintiff say anything before the accident. The plaintiff had no reasonable expectation of proving recklessness from this evidence. See Patterson v. Liberty Mut. Ins. Co., 48 Mass. App. Ct. 586, 592, 723 N.E.2d 1005 (2000) (party “cannot prevail if any critical element is left to surmise, conjecture or speculation or otherwise lacks evidential support”).
4. Claims against the Suffolk defendants. Although a coach’s duty of care to opposing players is the same recklessness standard that applies to the players she coaches, Borella, 96 Mass. App. Ct. at 628, 137 N.E.3d 431, we assume without deciding that a coach ordinarily has a duty of ordinary reasonable care to her own players. See Kavanagh, 440 Mass. at 202, 795 N.E.2d 1170 (not reaching this question). Cf. Moose v. Massachusetts Inst. of Tech., 43 Mass. App. Ct. 420, 425, 683 N.E.2d 706 (1997) (university and coaches liable in negligence to injured pole vaulter for unsafe equipment and landing pit). Here, however, it is uncontested that Suffolk University had an enforceable liability waiver barring the plaintiff from bringing an ordinary negligence suit. See Rafferty v. Merck & Co., 479 Mass. 141, 155, 92 N.E.3d 1205 (2018), quoting Maryland Cas. Co. v. NSTAR Elec. Co., 471 Mass. 416, 422, 30 N.E.3d 105 (2015) (” ‘while a party may contract against liability for harm caused by its negligence, it may not do so with respect to its gross negligence’ or, for that matter, its reckless or intentional conduct”). Thus, we analyze the plaintiff’s claims only for gross negligence and recklessness.
a. Gross negligence. “[G]ross negligence is substantially and appreciably higher in magnitude than ordinary negligence. … It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care.” Parsons v. Ameri, 97 Mass. App. Ct. 96, 106, 142 N.E.3d 628 (2020), quoting Altman v. Aronson, 231 Mass. 588, 591-592, 121 N.E. 505 (1919). “The ‘voluntary incurring of obvious risk’ and ‘persistence in a palpably negligent course of conduct over an appreciable period of time’ are among ‘the more common indicia of gross negligence.’ ” Parsons, supra, quoting Lynch v. Springfield Safe Deposit & Trust Co., 294 Mass. 170, 172, 200 N.E. 914 (1936).
The plaintiff’s expert stated that the positioning of the tee station near the entrance enhanced the risk of serious danger for the players when there were safer alternative locations for the drill. The head coach gave the players approximately five minutes to transition. The head coach had no reason to believe that these trained collegiate athletes would enter the field while players were swinging their bats at the tee station. Based on the collegiate athletes’ knowledge and experience, the head coach’s assertedly inadequate planning makes out, at worst, only ordinary negligence. See Aleo v. SLB Toys USA, Inc., 466 Mass. 398, 410, 995 N.E.2d 740 (2013), quoting Altman, 231 Mass. at 591, 121 N.E. 505 (“Gross negligence … is materially more want of care than constitutes simple inadvertence”).3
It remains a contested fact whether the coach told the players to start their stations before everyone was in place.4 Taking all inferences in favor of the plaintiff, it was at most negligent for the head coach to have prematurely yelled “go” before all of the trained athletes were at their next station.
b. Recklessness. “[R]eckless conduct involves a degree of risk and a voluntary taking of that risk so marked that, compared to negligence, there is not just a difference in degree but also a difference in kind.” Gray, 49 Mass. App. Ct. at 440, 730 N.E.2d 338, quoting Sandler v. Commonwealth, 419 Mass. 334, 337, 644 N.E.2d 641 (1995). “[I]n order to impose liability on a coach for the conduct of a player, there must be, at the least, evidence of ‘specific information about [the] player suggesting a propensity to engage in violent conduct, or some warning that [the] player … appeared headed toward such conduct as the game progressed.’ ” Borella, 96 Mass. App. Ct. at 628, 137 N.E.3d 431, quoting Kavanagh, 440 Mass. at 203, 795 N.E.2d 1170. Here, there is no indication that the teammate intentionally struck the plaintiff or that the teammate had a history of reckless conduct. The plaintiff testified that she and the teammate were best friends, and that she did not think the teammate hit her on purpose. See Gray, supra. As a matter of law, there is no basis for a jury to find that the head coach acted recklessly in allowing the teammate to practice hitting off tees.
Judgment affirmed.
——–
Notes:
1 Meredith Ball and Suffolk University.
2 In Pfenning v. Lineman, 947 N.E.2d 392, 404 (Ind. 2011), the Supreme Court of Indiana took issue with some of the reasoning in Bowman, but ultimately approved of its conclusion that “intentional or reckless infliction of injury” is the proper standard.
3 Gross negligence, of course, takes into account the age, experience, and skill level of the players. A setup that is merely negligent for experienced collegiate athletes might well be grossly negligent for beginners or young children.
4 The teammate testified that she was told to start. The head coach said that she had already said “go.”
——–
Nebraska Supreme Court upholds release for a minor who was injured as a student athlete at a private college.
Posted: April 17, 2023 Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue), Sports | Tags: Exculpatory clause, Indemnity Clause, Injury, Minor, Nebraska, Parent can sign away Minor's Right to Sue, Release, student athlete, Waiver Leave a commentAge of majority is 19 in Nebraska. Student athlete was 18 when he, and his mother signed release. Release was used to stop lawsuit over injuries received as a student athlete.
Sinu v. Concordia Univ., 313 Neb. 218 (Neb. 2023)
State: Nebraska, Supreme Court of Nebraska
Plaintiff: Konrad Sinu and his mother
Defendant: Concordia University is a private institution in Nebraska
Plaintiff Claims: negligence
Defendant Defenses: Release
Holding: For the Defendant
Year: 2023
Summary
Nebraska Supreme Court upholds release signed by a parent to block the claims of a minor injured as a student athlete.
Facts
Concordia University is a private institution in Nebraska. It recruited Konrad Sinu (the student) to play for the university’s intercollegiate men’s soccer team. The university provided the student with soccer and academic scholarships. Before the student moved to Nebraska from his home in England, he signed an “Assumption of Risk and Waiver of Liability Release.” Because the student was 18 years old, his mother also signed the release.
Roughly 5 months after arriving at the university, the student and his soccer teammates engaged in a mandatory strength and conditioning workout at the university’s Walz Human Performance Complex (the Walz). The workout involved circuit training in which the teammates moved from one exercise station to another in small groups. One station consisted of an exercise referred to as the “face pull.” In the exercise, an elastic resistance band was secured to a squat rack post and was pulled toward the user’s face. During the course of the workout, teammates altered the band’s placement from how a university employee originally set it. When the student approached the squat rack, he observed the resistance band resting on a “I-hook” of the squat rack. As the student performed the exercise, the resistance band slid off the hook and caused injury to his eyes.
The student and his mother sued the university, setting forth a cause of action for negligence. The university asserted numerous affirmative defenses in its responsive pleading. One defense alleged that the claim was barred by the release signed by the student and his mother. Another defense alleged that the claim was barred by the doctrine of assumption of risk.
Analysis: making sense of the law based on these facts.
The Nebraska Supreme Court looked at two issues in this decision. The second issue is whether or not the plaintiff should have been given the opportunity to amend their complain to include claims that might have not been covered by the release. That issue will not be discussed because it is procedural in nature.
The first issue is whether or not a release signed by a minor and his mother can be used in Nebraska to stop claims for injuries received by the minor.
Nebraska as a simple test to determine the validity of a release initially: the release must be valid and enforceable.
Under Nebraska law, releases are exculpatory clauses, as in most other states.
The release is a type of exculpatory clause. An exculpatory clause is “[a] contractual provision relieving a party from liability resulting from a negligent or wrongful act.” Such clauses purport to deny an injured party the right to recover damages from the very person or entity which negligently caused the injury.
The court then compared exculpatory clauses to indemnify clauses since both were used in this release.
An indemnity clause is “[a] contractual provision in which one party agrees to answer for any specified or unspecified liability or harm that the other party might incur.” Although an indemnity clause may ultimately have the same effect as an exculpatory clause, they differ. “An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing the injury, while an indemnification clause attempts to shift the responsibility for the payment of damages to someone other than the negligent party . . . .” In some situations, the indemnity clause shifts such responsibility back to the injured party, thereby yielding the same result as an exculpatory clause. But “an indemnity provision generally does not apply to claims between the parties to an agreement. . . . ‘Rather, [the provision] obligates the indemnitor to protect the indemnitee against claims brought by persons not a party to the provision.'”
The court then explained additional requirements for a release to be valid.
Exculpatory clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he [or she] is contracting away
This is sort of a step back to the plain English rule. Where contracts for consumers must be understood by the consumer. The persons signing a release are not consumers under the legal meaning of the term, but they are not sophisticated business people represented by attorneys. Consequently, many courts require the language of the release to be understandable and clearly state the intentions of the release. No more small print hidden on the paperwork.
The court then looked at the language in the release. This release did not use the magic term “negligence” which is required in many states; however the court found the language explained the issues and was easy to understand.
The provision must be looked at as a whole and given a reasonable construction. If there is no specific reference to liability for negligence, it must otherwise clearly appear from the language used or from a determination that no other meaning could be ascribed to the contract such that the court is firmly convinced that such interpretation reflects the intention of the parties. Here, the intended effect was clear.
The court then went through the release section by section pointing out the important points that made the release a valid and enforceable agreement.
Start with the language of the release. In large, boldface type at the top of the page appears the title, “Assumption of Risk and Waiver of Liability Release.” The document then states that “[i]n consideration of . . . being provided access and the opportunity to use the Walz” and in recognition of the “risks inherent in such physical activity, I do hereby . . . release . . . the [u\niversity . . . from and against any and all claims, demands, injuries, actions or causes of action, for . . . personal injury . . . which may result from my presence at or participation in any such [u]niversity activities.” (Emphasis supplied.)
Although the document does not mention negligence, it is apparent that releasing the university from its own negligence was the document’s intended consequence. As is evident from the definition of an exculpatory clause set forth above, relieving a party from its own negligence is the very purpose of an exculpatory clause. The language of the release clearly demonstrates an intent to eliminate the university’s liability, particularly when protecting the university from negligence claims is the only reasonable construction.
In some cases dealing with indemnity clauses, we have found broad language to not be clear or unequivocal. In one case, we determined that a reference to ‘”any and all claims for damage and liability for injury to or death of persons'” was not sufficient to impose liability for an indemnitee’s negligence. In another case, we stated that language that an indemnitor would protect an indemnitee against ‘”all risks and from any claims that may arise out of or pertain to the performance of such work,'” did not constitute express language covering the indemnitee’s own negligence nor did it constitute clear and unequivocal language that it was the parties’ intention to cover the indemnitee’s own negligence.
The plaintiff’s argued the release was ambiguous. Again, the court looked at the issue of the release not containing the magic term negligence and again found the language of the release was clear enough, that it was not needed. However, since the court brought that issue up three times in one decision, it might be important to include the word in releases in Nebraska.
For the same reason expressed above, we reject the student and his mother’s claim that the release did not unambiguously notify them that they were releasing the university from its own negligence. While the release’s language may not have explicitly used the word “negligence” or referenced the university’s conduct, it was not ambiguous.
An ambiguity in a release is a word, phrase or provision that may reasonably be interpreted in more than one way.
An exculpatory clause, like a contract, is ambiguous when a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings. A contract which is written in clear and unambiguous language is not subject to interpretation or construction; rather, the intent of the parties must be determined from the contents of the contract, and the contract must be enforced according to its terms.
The plaintiffs then argued the release was unconscionable. Here the court found the release was not in several different ways.
Even if clear and unambiguous, an exculpatory clause will be unenforceable if it is unconscionable or void as against public policy. The student and his mother advance several reasons why they believe the release was unconscionable and void as against public policy. Those reasons lack merit.
To begin, courts are disinclined to find a contractual agreement void as against public policy. Courts should be cautious in holding contracts void on the ground that the contract is contrary to public policy; to be void as against public policy, the contract should be quite clearly repugnant to the public conscience
There is a general reluctance to hold a release or any contract unconscionable. The court then applied a two-prong test to the release to determine if it was unconscionable.
We have stated that an essential fact in determining unconscionability is the disparity in respective bargaining positions of parties to a contract. Other jurisdictions have adopted a two-prong test for determining whether exculpatory clauses are invalid as contrary to public policy: (1) whether there was a disparity of bargaining power between the parties and (2) the types of services being offered or provided.
The court found there was no disparity in bargaining power because the student athlete was free to go to other schools to play soccer. The second test reviews the types of services be offered in exchange for the release but a necessity; something that you really can’t live without.
Further, the services offered by the university were not a public or essential service. The university is a private school, and the release related to a recreational activity. “Exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy. Indeed, plaintiff’s ordinary negligence claims may generally be barred where she or he voluntarily executes exculpatory contract in order to participate in recreational or nonessential activities.”
Recreational activities in Nebraska are not necessities. This has been the holding when any court looks at the issues of recreational activities. Although most readers would argue that without recreation, life is pretty dull, it is still not an essential component for life, yet.
What the court never examined was the age of the signor and who or how the student athlete was barred by the release. In Nebraska, you are not an adult until you reach the age of 19. When the student athlete signed the release, he was only 18 years old. See
The age that minors become adults for the ages of the states when a minor becomes an adult.
In every state, a minor cannot sign a release, and unless there is an aberration in the law in Nebraska, I am not familiar with, if you are a minor, someone under the age of consent, then you cannot sign a contract.
The student’s mother was supposedly over the age of 19, although never brought out in the release and the release was deemed valid to stop her and her sons claims. Consequently, Nebraska joins the list of states where a parent can sign away a minor’s right to sue. See States that allow a parent to sign away a minor’s right to sue for the other states and case law that allow a parent to sign away a minor’s right to sue.
So Now What?
The good news is Nebraska joins the short list of states that allow a parent to sign away a minor’s right to sue.
The educational issue there are several points to review when writing a release under Nebraska law. The most important is to include the magic word “negligence” in the release as the legal right the signor of the release is giving up.
Other articles reviewing Nebraska Law see:
In Nebraska a release can defeat claims for gross negligence for health club injury
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Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
To see Jim’s complete bio go here and to see his CV you can find it here.
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Sinu v. Concordia Univ., 313 Neb. 218 (Neb. 2023)
Posted: April 17, 2023 Filed under: Minors, Youth, Children, Nebraska, Release (pre-injury contract not to sue), Sports, Uncategorized | Tags: Minor, Nebraska, Private College, Release, student athlete, Waiver Leave a comment313 Neb. 218
KONRAD SINU AND LIDIA SZURLEJ, APPELLANTS.
v.
CONCORDIA UNIVERSITY, APPELLEE.
No. S-21-959
Supreme Court of Nebraska
January 13, 2023
1.
Summary Judgment: Appeal and Error. An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.
2. __:__. In reviewing the grant of a motion for summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.
3. Rules of the Supreme Court: Pleadings: Appeal and Error. An appellate court reviews a district court’s denial of a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, an appellate court reviews de novo any underlying legal conclusion that the proposed amendments would be futile.
4. Contracts: Words and Phrases. An exculpatory clause is a contractual provision relieving a party from liability resulting from a negligent or wrongful act.
5. Contracts: Intent. Exculpatory clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he or she is contracting away.
6. Contracts: Words and Phrases. An exculpatory clause is governed by principles generally applied in construction or interpretation of other contracts.
7. Contracts: Negligence: Liability: Intent. If there is no specific reference to liability for negligence, it must otherwise clearly appear from the language used or from a determination that no other meaning could be ascribed to the contract such that the court is firmly convinced that such interpretation reflects the intention of the parties.
8. Contracts: Words and Phrases. An exculpatory clause, like a contract, is ambiguous when a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings.
9. Contracts: Intent. A contract which is written in clear and unambiguous language is not subject to interpretation or construction; rather, the intent of the parties must be determined from the contents of the contract, and the contract must be enforced according to its terms.
10. Contracts: Public Policy. Courts should be cautious in holding contracts void on the ground that the contract is contrary to public policy; to be void as against public policy, the contract should be quite clearly repugnant to the public conscience.
11. __:__ . Whether a particular exculpatory clause in a contractual agreement violates public policy depends upon the facts and circumstances of the agreement and the parties involved.
12. Contracts. An essential fact in determining unconscionability is the disparity in respective bargaining positions of parties to a contract.
13. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.
14. Rules of the Supreme Court: Pleadings: Appeal and Error. When a party seeks leave to amend a pleading, appellate court rules generally require that leave shall be freely given when justice so requires. Denial of leave to amend pleadings is appropriate only in those limited circumstances in which undue delay, bad faith on the part of the moving party, futility of the amendment, or unfair prejudice to the nonmoving party can be demonstrated.
15. Pleadings: Pretrial Procedure: Summary Judgment. When a motion for leave to amend a pleading is filed after a motion for summary judgment but before discovery is closed, the standard for assessing the futility of the amendment turns on whether there was a sufficient opportunity for discovery.
16. __:__:__. When a motion for summary judgment has been filed and a party seeking leave to amend a pleading has had sufficient opportunity for discovery, futility is judged by whether the proposed amendment could withstand a motion for summary judgment.
17. Pleadings: Evidence: Summary Judgment. A proposed amendment to a pleading may be considered futile when the evidence in support of the proposed amendment creates no triable issue of fact and the opposing party would be entitled to judgment as a matter of law.
18.
Negligence: Words and Phrases. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty.
19. Negligence. Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.
20. Negligence: Summary Judgment. The issue of gross negligence is susceptible to resolution in a motion for summary judgment.
Appeal from the District Court for Seward County: James C. Stecker, Judge. Affirmed.
Jason G. Ausman and Michelle D. Epstein, of Ausman Law Firm, PC, L.L.O, for appellants.
David P. Kennison and Heidi A. Guttau, of Baird Holm, L.L.P., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ., and Strong, District Judge.
Cassel, J.
I. INTRODUCTION
Based upon a waiver of liability signed by a student and his mother, the district court granted a summary judgment rejecting their negligence claim against a university. The court also refused an attempt-made after the summary judgment motion was filed but before discovery closed-to amend the complaint. They appeal.
We find no error in granting summary judgment. Although the release did not mention negligence, its language was broad and clear and did not contravene public policy.
On the denial of leave to amend, we first settle the standard for assessing futility at that point. Because they had sufficient opportunity for discovery and we agree that their proposed amendments to add allegations of gross negligence would be futile, we find no abuse of discretion. We affirm.
II. BACKGROUND
We begin with a brief background. Additional facts will be incorporated, as necessary, in the analysis section.
Concordia University is a private institution in Nebraska. It recruited Konrad Sinu (the student) to play for the university’s intercollegiate men’s soccer team. The university provided the student with soccer and academic scholarships. Before the student moved to Nebraska from his home in England, he signed an “Assumption of Risk and Waiver of Liability Release.” Because the student was 18 years old, his mother also signed the release.
Roughly 5 months after arriving at the university, the student and his soccer teammates engaged in a mandatory strength and conditioning workout at the university’s Walz Human Performance Complex (the Walz). The workout involved circuit training in which the teammates moved from one exercise station to another in small groups. One station consisted of an exercise referred to as the “face pull.” In the exercise, an elastic resistance band was secured to a squat rack post and was pulled toward the user’s face. During the course of the workout, teammates altered the band’s placement from how a university employee originally set it. When the student approached the squat rack, he observed the resistance band resting on a “I-hook” of the squat rack. As the student performed the exercise, the resistance band slid off the hook and caused injury to his eyes.
The student and his mother sued the university, setting forth a cause of action for negligence. The university asserted numerous affirmative defenses in its responsive pleading. One defense alleged that the claim was barred by the release signed by the student and his mother. Another defense alleged that the claim was barred by the doctrine of assumption of risk.
Some 4 months prior to the discovery deadline, the university moved for summary judgment. Approximately 2 months later and prior to the hearing on the university’s motion, the student and his mother moved for leave to file an amended complaint. They wished to add allegations that the university’s willful and wanton or grossly negligent actions caused the student’s injuries. Following a hearing on the motion to amend, the court denied the motion.
After the discovery deadline and days before the scheduled summary judgment hearing, the student and his mother filed a renewed motion for leave to file an amended complaint. The court again denied the motion for leave, finding that any amendment would be futile.
The court held a hearing on the motion for summary judgment and received a number of exhibits. It subsequently entered summary judgment in the university’s favor and dismissed the complaint with prejudice. In doing so, the court rejected arguments that the release was unconscionable, that it did not release the university from liability for its own negligence, and that the release did not amount to an assumption of risk.
The student and his mother appealed, and we moved the case to our docket.[1]
III. ASSIGNMENTS OF ERROR
The student and his mother allege that the district court erred in (1) granting summary judgment in the university’s favor when genuine disputes remain as to material facts and the ultimate inferences that a jury may draw from those facts and (2) denying their motion for leave to file an amended complaint when the proposed amended complaint stated a claim for which relief could be granted.
IV. STANDARD OF REVIEW
An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.[2]
In reviewing the grant of a motion for summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.[3]
An appellate court reviews a district court’s denial of a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, an appellate court reviews de novo any underlying legal conclusion that the proposed amendments would be futile.[4]
V. ANALYSIS
1. Summary Judgment
This case is before us following the district court’s entry of summary judgment in the university’s favor. To establish entitlement to judgment as a matter of law, the university relied on the release signed by the student and his mother. For summary judgment to be appropriate, the release must be valid and enforceable. The student and his mother argue that it was not. Before considering their challenges, we set forth the language of the release and discuss exculpatory and indemnity clauses.
(a) Additional Facts
The entire release appeared on one side of a single page. The title, “Assumption of Risk and Waiver of Liability Release,” was displayed in large, boldface type. It then stated:
PLEASE READ THE FOLLOWING CAREFULLY.
If you have any questions or concerns, please visit with an attorney before signing this document. This release must be signed before participation in activities at [the university] is allowed.
I acknowledge that my participation in certain activities including, but not limited to, intercollegiate athletics intramural sports, use of [the Walz], P.E. Center, [university stadium field/track, adjacent [u]niversity athletic fields and the City of Seward’s Plum Creek Park may be hazardous, that my presence and participation are solely at my own risk, and that I assume full responsibility for any resulting injuries, damages, or death.
In consideration of being allowed to participate in such activities and/or being provided access and the opportunity to use the Walz and other [u]niversity facilities and equipment, and in full recognition and appreciation of the danger and risks inherent in such physical activity, I do hereby waive, release and forever discharge the [university, its officers, directors, agents, employees and representatives, from and against any and all claims, demands, injuries, actions or causes of action, for costs, expenses or damages to personal property, or personal injury, or death, which may result from my presence at or participation in any such [u]niversity activities.
I further agree to indemnify and hold the [university, its officers, directors, agents, employees and representatives harmless from any loss, liability, damage or costs including court costs and attorney’s fees incurred as a result of my presence at or participation in any such activities. I also understand that this [release] binds me, my personal representatives, estate, heirs, next of kin and assigns.
I have read the [release] and fully understand it and agree to be legally bound by it. Beneath a line for the student’s signature, the release contained the following section, with boldface type as it appeared on the document:
If 18 years of age or younger, signature of parent/ guardian is also required.
I, as the parent or guardian of the above-named minor, have read the [release], fully understand it, and hereby voluntarily agree and execute the [release] on behalf of myself as well as the above-named minor and agree that the minor and I are legally bound by it.
Below this section appeared a line for the parent’s or guardian’s signature.
(b) Discussion
(i) Exculpatory and Indemnity Clauses
The release is a type of exculpatory clause. An exculpatory clause is “[a] contractual provision relieving a party from liability resulting from a negligent or wrongful act.”[5] Such clauses purport to deny an injured party the right to recover damages from the very person or entity which negligently caused the injury.[6]
The release also contained an indemnity clause, but that clause has not been a focal point of the litigation. We do not express any opinion regarding the validity of the indemnity clause contained in the release. However, we briefly discuss indemnity clauses in general in order to distinguish them from exculpatory clauses.
An indemnity clause is “[a] contractual provision in which one party agrees to answer for any specified or unspecified liability or harm that the other party might incur.”[7] Although an indemnity clause may ultimately have the same effect as an exculpatory clause, they differ. “An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing the injury, while an indemnification clause attempts to shift the responsibility for the payment of damages to someone other than the negligent party . . . .”[8] In some situations, the indemnity clause shifts such responsibility back to the injured party, thereby yielding the same result as an exculpatory clause.[9]But “an indemnity provision generally does not apply to claims between the parties to an agreement. . . . ‘Rather, [the provision] obligates the indemnitor to protect the indemnitee against claims brought by persons not a party to the provision.'”[10]
Both exculpatory and indemnity clauses must make clear the effect of the agreement. And such a clause is strictly construed against the party claiming its benefit.[11] “Exculpatory clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he [or she] is contracting away”[12] Similarly, “[a]n agreement which purports to indemnify the party who prepared it from liability for that party’s own negligence . . . must be clear, explicit and comprehensible in each of its essential details [and] must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.”[13] With this understanding in place, we turn to the student and his mother’s attacks on the release.
(ii) Clear Language
The student and his mother argue that the release did not contain express or clear and unequivocal language that the parties intended to release the university from its own negligence. They are correct that the release does not use words such as “negligence” or “fault.” But that does not end the inquiry.
An exculpatory clause is governed by principles generally applied in construction or interpretation of other contracts.[14] The provision must be looked at as a whole and given a reasonable construction.[15] If there is no specific reference to liability for negligence, it must otherwise clearly appear from the language used or from a determination that no other meaning could be ascribed to the contract such that the court is firmly convinced that such interpretation reflects the intention of the parties.[16] Here, the intended effect was clear.
Start with the language of the release. In large, boldface type at the top of the page appears the title, “Assumption of Risk and Waiver of Liability Release.” The document then states that “[i]n consideration of . . . being provided access and the opportunity to use the Walz” and in recognition of the “risks inherent in such physical activity, I do hereby . . . release . . . the [u\niversity . . . from and against any and all claims, demands, injuries, actions or causes of action, for . . . personal injury . . . which may result from my presence at or participation in any such [u]niversity activities.” (Emphasis supplied.)
Although the document does not mention negligence, it is apparent that releasing the university from its own negligence was the document’s intended consequence. As is evident from the definition of an exculpatory clause set forth above, relieving a party from its own negligence is the very purpose of an exculpatory clause. The language of the release clearly demonstrates an intent to eliminate the university’s liability, particularly when protecting the university from negligence claims is the only reasonable construction.[17]
In some cases dealing with indemnity clauses, we have found broad language to not be clear or unequivocal. In one case, we determined that a reference to ‘”any and all claims for damage and liability for injury to or death of persons'” was not sufficient to impose liability for an indemnitee’s negligence.[18]In another case, we stated that language that an indemnitor would protect an indemnitee against ‘”all risks and from any claims that may arise out of or pertain to the performance of such work,'” did not constitute express language covering the indemnitee’s own negligence nor did it constitute clear and unequivocal language that it was the parties’ intention to cover the indemnitee’s own negligence.[19]
But we are not addressing an indemnity clause here. As set forth above, an exculpatory clause such as a release is not synonymous with an indemnity clause. Because indemnity clauses shift liability and may involve third parties, it is important to specify whose negligence is being covered. But here, an obvious purpose of the release was to exempt the university from its own negligence.
(Hi) Ambiguity
For the same reason expressed above, we reject the student and his mother’s claim that the release did not unambiguously notify them that they were releasing the university from its own negligence. While the release’s language may not have explicitly used the word “negligence” or referenced the university’s conduct, it was not ambiguous.
An exculpatory clause, like a contract, is ambiguous when a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings.[20] A contract which is written in clear and unambiguous language is not subject to interpretation or construction; rather, the intent of the parties must be determined from the contents of the contract, and the contract must be enforced according to its terms.[21]
The release placed no liability on the university for any injury suffered by the student. The language plainly stated that the student released the university “from and against any and all claims, demands, injuries, actions or causes of actions, for costs, expenses or damages to personal property, or personal injury, or death, which may result from my presence at or participation in any such [u]niversity activities.” This language covers “any” claim for ordinary negligence, which includes any claim caused by the university’s ordinary negligence. We see no ambiguity.
(iv) Unconscionable and Against Public Policy
Even if clear and unambiguous, an exculpatory clause will be unenforceable if it is unconscionable or void as against public policy. The student and his mother advance several reasons why they believe the release was unconscionable and void as against public policy. Those reasons lack merit.
To begin, courts are disinclined to find a contractual agreement void as against public policy. Courts should be cautious in holding contracts void on the ground that the contract is contrary to public policy; to be void as against public policy, the contract should be quite clearly repugnant to the public conscience.[22] Stated differently, the power of courts to invalidate contracts for being in contravention of public policy is a very delicate and undefined power which should be exercised only in cases free from doubt.[23]
Whether a particular exculpatory clause in a contractual agreement violates public policy depends upon the facts and circumstances of the agreement and the parties involved.[24]Public policy prevents a party from limiting its damages for gross negligence or willful and wanton misconduct.[25] It is important to note at this juncture that the student and his mother’s claim is limited to ordinary negligence. We need not address the release’s enforceability if the student and his mother had alleged gross negligence.
We have stated that an essential fact in determining unconscionability is the disparity in respective bargaining positions of parties to a contract.[26] Other jurisdictions have adopted a two-prong test for determining whether exculpatory clauses are invalid as contrary to public policy: (1) whether there was a disparity of bargaining power between the parties and (2) the types of services being offered or provided.[27]
There was no disparity in bargaining power. The student emphasizes that he was an 18-year-old minor living on a different continent and believed he had to sign the release in order to attend the university. He highlights that the second sentence of the release stated it “must be signed before participation in activities at [the university] is allowed.” But the first sentence of the release informed the student to speak with an attorney before signing the document if he had any concerns. The student had a reasonable opportunity to understand the terms of the contract. And because the student was a minor, his mother also had to agree to the terms and sign the release. The fact that the student was given the release to sign a month prior to moving to Nebraska militates against his compulsion argument. He could have gone elsewhere to play soccer and attend college.
Further, the services offered by the university were not a public or essential service. The university is a private school, and the release related to a recreational activity. “Exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy. Indeed, plaintiff’s ordinary negligence claims may generally be barred where she or he voluntarily executes exculpatory contract in order to participate in recreational or nonessential activities.”[28] We conclude the release was not void as against public policy.
Because the release was valid, it barred the student and his mother’s negligence claim against the university. We conclude the district court properly entered summary judgment in the university’s favor.
(c) Assumption of Risk
The student and his mother additionally argue that the student did not assume the risk of the danger he confronted. But because the release barred the student’s claim, we need not also address whether the student assumed the risk of his injury. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.[29]
2. Leave to Amend
The student and his mother twice sought leave to amend their complaint to include allegations of gross negligence and willful and wanton misconduct. The court denied both requests. In considering whether the court abused its discretion in doing so, we set forth the relevant procedural timeline and determine the standard of review applicable under the circumstances.
(a) Additional Facts
The following timeline provides helpful context in considering the timing of the motions for leave to amend:
• 06/26/2019: complaint filed
• 08/14/2019: answer filed
• 11/02/2020: discovery deadline extended to 06/04/2021
• 11/02/2020: depositions of three university employees taken
• 11/19/2020: depositions of the student and his mother taken
• 12/02/2020: deposition of university employee taken
• 01/28/2021: motion for summary judgment filed
• 03/25/2021: motion for leave to file amended complaint
• 04/05/2021: court denied motion for leave
-allowed 45 days for disclosure of expert witness
-extended discovery deadline to 08/01/2021
-continued summary judgment hearing to 08/16/2021
• 05/19/2021: student’s expert witness disclosed
• 08/11/2021: renewed motion for leave to file amended complaint
(b) Discussion
When a party seeks leave to amend a pleading, appellate court rules generally require that leave shall be freely given when justice so requires. Denial of leave to amend pleadings is appropriate only in those limited circumstances in which undue delay, bad faith on the part of the moving party, futility of the amendment, or unfair prejudice to the nonmoving party can be demonstrated.[30] As the timeline demonstrates, the student and his mother first sought leave to amend after the university filed its motion for summary judgment but before discovery closed. They filed a renewed request for leave to amend after the discovery deadline.
Our case law has discussed the situation where leave is sought before discovery is complete and before a motion for summary judgment is filed. If leave to amend is sought before discovery is complete and before a motion for summary judgment has been filed, the question of whether such amendment would be futile is judged by reference to Neb. Ct. R. Pldg. § 6-1112(b)(6).[31] Leave to amend in such circumstances should be denied as futile only if the proposed amendment cannot withstand a motion to dismiss under § 6-1112(b)(6).[32]
Our case law has also addressed the situation where leave is sought after discovery is closed and after a motion for summary judgment has been filed. After discovery is closed and a motion for summary judgment has been filed, the appropriate standard for assessing whether a motion to amend should be determined futile is that the proposed amendment must be not only theoretically viable but also solidly grounded in the record and supported by substantial evidence sufficient to give rise to a triable issue of fact.[33]
Our case law has not directly addressed the situation here. The student and his mother sought leave to amend the complaint before the close of discovery but after the university filed a motion for summary judgment.
A commentator has proposed a standard to evaluate futility in such a situation. The commentator suggests that the standard used “should depend on whether the plaintiff can establish that it needs to engage [i]n discovery on the new matter alleged in the amendment.”[34] The commentator explains:
A plaintiff who seeks leave to amend but who lacks sufficient evidence to withstand a motion for summary judgment directed at the new matter should file an affidavit explaining why it needs additional discovery to develop a sufficient evidentiary basis for the new matter. If [the] court finds the explanation sufficient, then the court should evaluate the futility of the amendment by applying the standard for [a] motion to dismiss for failure to state a claim. If the court finds the explanation insufficient, then the court should apply the standard for summary judgment.[35]
We agree with the commentator’s view. When a motion for leave to amend a pleading is filed after a motion for summary judgment but before discovery is closed, the standard for assessing the futility of the amendment turns on whether there was a sufficient opportunity for discovery. Here, there was.
The student and his mother had engaged in substantial discovery to develop their case. At the time of their initial motion for leave, they had taken the depositions of six individuals. They had requested additional time to disclose expert opinions regarding the university’s alleged negligence and had disclosed their expert witness prior to renewing their motion for leave.
When a motion for summary judgment has been filed and a party seeking leave to amend a pleading has had sufficient opportunity for discovery, futility is judged by whether the proposed amendment could withstand a motion for summary judgment. In determining whether the proposed amendment was futile, the standard is whether the proposed amendment is both theoretically viable and solidly grounded in the record and supported by substantial evidence sufficient to give rise to a triable issue of fact.[36] Stated differently, the proposed amendment may be considered futile “when the evidence in support of the proposed amendment creates no triable issue of fact and the opposing party would be entitled to judgment as a matter of law.”[37]
With the appropriate standard in place, we review the district court’s determination for an abuse of discretion. Addressing the renewed motion for leave, the court stated that the facts would not support a finding of gross negligence and that any amendment would be futile. We agree.
The student and his mother wished to amend the complaint to allege the university’s “negligence, recklessness, willful and wanton, and/or grossly negligent actions” caused the student’s injury and damages. Gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty.[38] Whether gross negligence exists must be ascertained from the facts and circumstances of each particular case and not from any fixed definition or rule.[39] The issue of gross negligence is susceptible to resolution in a motion for summary judgment.[40]
The allegations in the proposed amended complaint do not rise to the level of gross negligence. The proposed complaint would allege, among other things, that the university was negligent in allowing the student athletes to pull the resistance band toward their faces and in failing to inform the student that other student athletes could modify the placement of the bands during the workout. At best, these allegations would implicate ordinary negligence. Because the proposed amendments would have been futile, we conclude the district court did not abuse its discretion in overruling the motions for leave to file an amended complaint.
VI. CONCLUSION
We conclude that the district court properly entered summary judgment in the university’s favor, because the release signed by the student and his mother was valid and enforceable and relieved the university of liability for its ordinary negligence. And because the proposed amendments to the complaint would have been futile, the district court did not abuse its discretion in overruling the student and his mother’s motions for leave to amend. We affirm the judgment.
Affirmed.
Miller-Lerman, J., not participating.
19
———
Notes:
[1] See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
[2]
Kozal v. Snyder, 312 Neb. 208, 978 N.W.2d 174 (2022).
[4]
Williams v. State, 310 Neb. 588, 967 N.W.2d 677 (2021).
[5] Black’s Law Dictionary 712 (11th ed. 2019).
[6] See 57A Am. Jur. 2d Negligence § 41 (2022).
[7] Black’s Law Dictionary 919 (11th ed. 2019).
[8] 57A Am. Jur. 2d, supra note 6, § 43 at 86.
[10]
Ganske v. Spence, 129 S.W.3d 701, 708 (Tex. App. 2004).
[11]See, Annot, 175 A.L.R. 8, § 8 (1948); 57AAm. Jur. 2d, supra note 6; 17A C.J.S. Contracts § 448 (2020). See, also, Dion v. City of Omaha, 311 Neb. 522, 973 N.W.2d 666 (2022).
[12] 57A Am. Jur. 2d, supra note 6, § 46 at 91.
[14] See Oddo v. Speedway Scaffold Co., 233 Neb. 1, 443 N.W.2d 596 (1989).
[15] See Kuhn v. Wells Fargo Bank of Neb., 278 Neb. 428, 771 N.W.2d 103 (2009).
[16]
Dion v. City of Omaha, supra note 11.
[17] See 57A Am. Jur. 2d, supra note 6, § 49.
[18]
Dion v. City of Omaha, supra note 11, 311 Neb. at 556, 973 N.W.2d at 690.
[19]
Anderson v. Nashua Corp., 251 Neb. 833, 840, 560 N.W.2d 446, 450 (1997).
[20]See Community First Bank v. First Central Bank McCook, 310 Neb. 839. 969 N.W.2d 661 (2022).
[21]New Light Co. v. Wells Fargo Alarm Servs., 247 Neb. 57, 525 N.W.2d 25 (1994).
[22]SFI Ltd. Partnership 8 v. Carroll, 288 Neb. 698, 851 N.W.2d 82 (2014).
[23]Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776 (2006).
[24]New Light Co. v. Wells Fargo Alarm Servs., supra note 21.
[26]Myers v. Nebraska Invest. Council, supra note 23.
[27]Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920 (Minn. 1982).
[28] 57A Am. Jur. 2d, supra note 6, § 62 at 112.
[29]
Schreiber Bros. Hog Co. v. Schreiber, 312 Neb. 707, 980 N.W.2d 890 (2022).
[30]
McCaulley v. C L Enters., 309 Neb. 141, 959 N.W.2d 225 (2021).
[31]
Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017).
[34] John P. Lenich, Nebraska Civil Procedure § 15:4 at 723 (2022).
[36] See Estermann v. Bose, supra note 31.
[37]
Bailey v. First Nat. Bank of Chadron, 16 Neb.App. 153, 169, 741 N.W.2d 184, 197 (2007).
[38]
Palmer v. Lakeside Wellness Ctr., 281 Neb. 780, 798 N.W.2d 845 (2011).
———
Do Releases Work? Should I be using a Release in my Business? Will my customers be upset if I make them sign a release?
Posted: May 18, 2021 Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest Leave a commentThese and many other questions are answered in my book Outdoor Recreation Risk Management, Insurance and Law.
Releases, (or as some people incorrectly call them waivers) are a legal agreement that in advance of any possible injury identifies who will pay for what. Releases can and to stop lawsuits.
This book will explain releases and other defenses you can use to put yourself in a position to stop lawsuits and claims.
This book can help you understand why people sue and how you can and should deal with injured, angry or upset guests of your business.
This book is designed to help you rest easy about what you need to do and how to do it. More importantly, this book will make sure you keep your business afloat and moving forward.
You did not get into the outdoor recreation business to worry or spend nights staying awake. Get prepared and learn how and why so you can sleep and quit worrying.
Table of Contents
Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2 U.S. Legal System and Legal Research
Chapter 3 Risk 25
Chapter 4 Risk, Accidents, and Litigation: Why People Sue
Chapter 5 Law 57
Chapter 6 Statutes that Affect Outdoor Recreation
Chapter 7 Pre-injury Contracts to Prevent Litigation: Releases
Chapter 8 Defenses to Claims
Chapter 9 Minors
Chapter 10 Skiing and Ski Areas
Chapter 11 Other Commercial Recreational Activities
Chapter 12 Water Sports, Paddlesports, and water-based activities
Chapter 13 Rental Programs
Chapter 14 Insurance
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Pennsylvania Supreme Court upholds use of an express assumption of the risk agreement to bar a claim for wrongful death during a triathlon
Posted: January 27, 2020 Filed under: Assumption of the Risk, Pennsylvania, Release (pre-injury contract not to sue), Triathlon | Tags: assumption of the risk agreement, LLC., multi-sport-event, negligent act, Pennsylvania's wrongful-death statute, Philadelphia Triathlon, Restatement (Second) of Torts, signed electronically, Supreme Court of Pennsylvania, Triathlon, Wrongful Death Statute Leave a commentThe court defined the written agreement, signed electronically, as an assumption of the risk agreement, even though a lower court had called it a liability waiver.
Valentino v. Philadelphia Triathlon, LLC, 209 A.3d 941 (Pa. 2019)
State: Pennsylvania, Supreme Court of Pennsylvania
Plaintiff: Michele Valentino, as Administratrix of the Estate of Derek Valentino, Deceased, and Michele Valentino, in Her Own Right
Defendant: Philadelphia Triathlon, LLC
Plaintiff Claims: Pennsylvania Wrongful Death Statute
Defendant Defenses: Express Assumption of the Risk Agreement
Holding: For the Defendant
Year: 2019
Summary
Pennsylvania Supreme Court upholds release to stop claims under PA’s wrongful-death statute. Since the deceased assumed the inherent risks of the sport, that removed the duty of the defendant triathlon therefore, the triathlon could not be negligent. No negligence, no violation of the wrongful-death statute.
Facts
In 2010, Triathlon organized a multi-sport-event, comprised of swimming in the Schuylkill River, cycling for more than fifteen miles, and running for more than three miles. To compete in the event, each participant was required to register, pay a fee, and execute electronically a liability waiver agreement that included an assumption of the risk provision (“Agreement”). On January 24, 2010, Decedent complied with these requisites by electronically registering as a participant in the triathlon and executing the Agreement.
The triathlon took place on June 26, 2010. At approximately 8:30 a.m., Decedent entered the Schuylkill River to begin the first segment of the race. Tragically, Decedent never completed the swimming portion of the competition. Divers retrieved Decedent’s body from the river the next day after he presumably drowned while participating in the triathlon.
The trial court and the appellate court dismissed the plaintiff’s claims based on the express assumption of the risk agreement signed by the deceased. The Supreme Court of Pennsylvania granted the plaintiff’s appeal which resulted in this decision.
Analysis: making sense of the law based on these facts.
The release or wavier used in this agreement is not included in the decision. One small section is quoted, which speaks to the risks the participants in the triathlon must assume. Which makes sense since the court refers to the agreement as an express assumption of the risk agreement rather than a release or waiver.
Pennsylvania follows the Restatement Second of Torts in defining assumption of the risk.
The assumption of the risk doctrine, set forth in Section 496A of the Restatement Second of Torts, provides that “[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” Restatement Second of Torts, § 496A. Comment c(1) to Section 496A provides that the express assumption of the risk “means that the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. at cmt. c(1). Notably, the Comment goes on to state that “[t]he result is that the defendant, who would otherwise be under a duty to exercise such care, is relieved of that responsibility, and is no longer under any duty to protect the plaintiff.”
Under Pennsylvania law, “when a plaintiff assumes the risk of an activity it elminates the defendants duty of care”. When the deceased signed the valid agreement and expressly assumed the risks inherent in the triathlon, the decedent extinguished the defendant triathlon’s duty of care.
If there is no duty to the deceased there cannot be any negligence. Existence of a duty and a breach of that duty is the first of four steps to prove negligence.
A negligent act is required to be successful under Pennsylvania’s wrongful-death statute.
Accordingly, once Decedent extinguished Triathlon’s duty of care by expressly assuming all risks in the inherently dangerous sporting event, his heir could not resurrect that duty of care after his death. To do so would afford a decedent’s heirs more rights than those possessed by a decedent while alive.
There were three dissents in the decision. The dissents argued the Pennsylvania wrongful death statute voided the waiver. Since the right of the plaintiff under the wrongful-death statute was a right of a survivor, and the decedent could not sign away a survivor’s rights, the release, waiver or assumption of the risk agreement was void.
So Now What?
You can breathe a little easier in Pennsylvania when using releases signed electronically. It is important to make sure you include assumption of the risk language in your release to make sure the possible plaintiff assumes those risks if the court throws out the release or finds another way to sue the document to defend you.
What do you think? Leave a comment.
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Valentino v. Philadelphia Triathlon, LLC, 209 A.3d 941 (Pa. 2019)
Posted: January 23, 2020 Filed under: Assumption of the Risk, Pennsylvania, Release (pre-injury contract not to sue), Triathlon | Tags: assumption of the risk, assumption of the risk agreement, Express Assumption of the Risk, expressly assume, expressly assuming all risks, extinguished duty of care, Implied Assumption of the Risk, inherently dangerous sporting event, LLC., Philadelphia Triathlon, Schuylkill River, Summary judgment, Tort, Triathlon, Wrongful Death Act Leave a commentValentino v. Philadelphia Triathlon, LLC, 209 A.3d 941 (Pa. 2019)
Michele Valentino, as Administratrix of the Estate of Derek Valentino, Deceased, and Michele Valentino, in Her Own Right, Appellant
v.
Philadelphia Triathlon, LLC, Appellee
No. 17 EAP 2017
Supreme Court of Pennsylvania
June 18, 2019
Argued: May 15, 2018
Appeal from the Judgment of Superior Court entered on November 15, 2016 at No. 3049 EDA 2013 affirming the Order entered on September 30, 2013 in the Court of Common Pleas, Philadelphia County, Civil Division at No. 1417 April Term, 2012. Jacqueline F. Allen, Judge
Craig A. Falcone, Esq., Sacchetta & Falcone, for Appellant Michele Valentino, as Admin. of the Estate of Derek Valentino, etc.
Barbara Axelrod, Esq., The Beasley Firm, L.L.C., for Appellant Amicus Curiae Pennsylvania Association for Justice.
Heather M. Eichenbaum, Esq., Spector Gadon & Rosen, P.C., for Appellee Philadelphia Triathlon, LLC.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
ORDER
PER CURIAM
AND NOW, this 18th day of June, 2019, the Court being evenly divided, the Order of the Superior Court is AFFIRMED.
Justice Wecht did not participate in the consideration or decision of this matter.
OPINION IN SUPPORT OF AFFIRMANCE
BAER, JUSTICE.
This Court granted allocatur to determine whether an express assumption of the risk agreement executed by triathlon participant Derek Valentino (“Decedent”) serves as a defense to a wrongful death claim commenced against the Philadelphia Triathlon, LLC (“Triathlon”) by Decedent’s heir (“Appellant”), who was not a signatory to the agreement.[1] The Superior Court held that Decedent’s express assumption of the risks inherent in participation in the sporting event eliminated Triathlon’s duty of care, thereby rendering Triathlon’s conduct non-tortious. Absent tortious activity, the Superior Court concluded that the wrongful death claim brought by Decedent’s heir could not succeed as a matter of law because the Wrongful Death Act premises recovery upon “the wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S. § 8301. Accordingly, the Superior Court affirmed the trial court’s order granting summary judgment in favor of Triathlon. For the reasons set forth herein, we would affirm the judgment of the Superior Court and adopt its astute legal analysis.
Preliminarily and as explained in more detail infra, we respectfully note that the Opinions in Support of Reversal (both hereinafter collectively referred to as “OISR”) ignore the issue for which we granted allocatur and, instead, attempt to reverse the judgment of the Superior Court on grounds not encompassed by this appeal. Specifically, the OISR would sua sponte hold that express assumption of the risk agreements are void and unenforceable in violation of public policy in cases involving claims brought pursuant to the Wrongful Death Act, 42 Pa.C.S. § 8301. The OISR reaches this conclusion notwithstanding that no party to this appeal challenges the validity of the agreement on public policy grounds or otherwise. We decline to engage in this judicial overreaching and proceed to address the merits of the issue before us.
We begin with a brief recitation of the facts. In 2010, Triathlon organized a multi-sport-event, comprised of swimming in the Schuylkill River, cycling for more than fifteen miles, and running for more than three miles. To compete in the event, each participant was required to register, pay a fee, and execute electronically a liability waiver agreement that included an assumption of the risk provision (“Agreement”). On January 24, 2010, Decedent complied with these requisites by electronically registering as a participant in the triathlon and executing the Agreement.
The executed Agreement stated that Decedent understood “the physical and mental rigors associated with triathlon,” and “that running, bicycling, [and] swimming
… are inherently dangerous and represent an extreme test of a person’s physical and mental limits.” Appellee’s Motion for Summary Judgment Ex. G, dated Aug. 5, 2013. The Agreement further acknowledged Decedent’s understanding that “participation involves risks and dangers which include, without limitation, the potential for serious bodily injury, permanent disability, paralysis and death … and other undefined harm or damage which may not be readily foreseeable[.]” Id. The Agreement provided that Decedent was aware “that these Risks may be caused in whole or in part by [his] own actions or inactions, the actions or inactions of others participating in the Event, or the acts, inaction or negligence of [the Triathlon].” Id.
Germane to this appeal, the Agreement stated that Decedent “expressly assume[d] all such Risks and responsibility for any damages, liabilities, losses or expenses” resulting from his participation in the event. Id. (emphasis added). The Agreement also included a provision stating that Decedent further agreed that if he or anyone on his behalf “makes a claim of Liability against any of the Released Parties, [Decedent] will indemnify, defend and hold harmless each of the Released Parties from any such Liability which any [sic] may be incurred as the result of such claim.” Id. [2]
The triathlon took place on June 26, 2010. At approximately 8:30 a.m., Decedent entered the Schuylkill River to begin the first segment of the race. Tragically, Decedent never completed the swimming portion of the competition. Divers retrieved Decedent’s body from the river the next day after he presumably drowned while participating in the triathlon. On April 12, 2012, Decedent’s widow, Michele Valentino, both in her own right and as administratrix of her husband’s estate (referred to as “Appellant” herein), asserted wrongful death and survival claims against various defendants, including Triathlon. Only the wrongful death claim is at issue in this appeal. Appellant subsequently amended her complaint and the defendants filed preliminary objections. On July 27, 2012, the trial court sustained the defendants’ preliminary objections and struck all references in the complaint that referred to outrageous acts, gross negligence, recklessness, and punitive damages, holding that these averments were legally insufficient as the facts alleged demonstrated only ordinary negligence. The trial court further struck particular paragraphs of the amended complaint on grounds that they lacked specificity.
In December of 2012, following the various defendants’ filing of an answer and new matter, the defendants moved for summary judgment, asserting the Agreement as an affirmative defense. The trial court denied summary judgment, finding that questions of material fact remained regarding the existence of the Agreement. Appellant thereafter stipulated to the dismissal of all defendants except Triathlon. Once discovery was completed, Triathlon again moved for summary judgment. Concluding that the evidence at that point in the proceedings demonstrated that the Agreement was among Decedent’s possessions and was valid and enforceable, the trial court granted summary judgment in favor of Triathlon.
Prior to the trial court issuing its Pa.R.A.P. 1925(a) opinion explaining its rationale for granting summary judgment in favor of Triathlon, the Superior Court, in an unrelated matter, decided the case of Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013), which held that a non-signatory wrongful death claimant was not bound by an arbitration agreement signed by a decedent.[3] Id. at 663. On April 14, 2012, shortly after Pisano was decided, the trial court issued its Pa.R.A.P. 1925(a) opinion in this matter and urged the Superior Court to vacate its order granting summary judgment in favor of Triathlon based on that decision.
Relying upon Pisano, Appellant argued to the Superior Court that Decedent’s Agreement with Triathlon does not apply to her as a non-signatory and, thus, has no preclusive effect upon her wrongful death claims asserted against Triathlon. In response, Triathlon contended that Decedent’s assumption of the risks inherent in participation in the event relieved its duty of care, thereby rendering Triathlon’s conduct non-tortious as a matter of law. The Triathlon maintained that, absent tortious activity, a wrongful death claim could not succeed because the Wrongful Death Act premises recovery upon “the wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S. § 8301.
Initially, on December 30, 2015, a divided panel of the Superior Court reversed the trial court’s order in part, holding that under Pisano, Decedent’s Agreement was not applicable to Appellant because she was not a signatory to the contract. The Superior Court thereafter granted en banc argument and withdrew its panel decision.
On November 15, 2016, an en banc Superior Court affirmed the trial court’s order granting Triathlon summary judgment in a published decision. Valentino v. Phila. Triathlon, LLC, 150 A.3d 483 (Pa. Super. 2016). Preliminarily, the Superior Court acknowledged that because a wrongful death claim is not derivative of a decedent’s cause of action, “a decedent may not compromise or diminish a wrongful death claimant’s right of action without consent.” Id. at 493. Nevertheless, the Superior Court went on to hold that “a third-party wrongful death claimant is subject to substantive defenses supported by the decedent’s actions or agreements where offered to relieve the defendant, either wholly or partially, from liability by showing that the defendant’s actions were not tortious.” Id.
The Superior Court found that the available substantive defense here was Decedent’s contractual assumption of the risks inherent in participation in the triathlon.
The assumption of the risk doctrine, set forth in Section 496A of the Restatement Second of Torts, provides that “[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” Restatement Second of Torts, § 496A. Comment c(1) to Section 496A provides that the express assumption of the risk “means that the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. at cmt. c(1). Notably, the Comment goes on to state that “[t]he result is that the defendant, who would otherwise be under a duty to exercise such care, is relieved of that responsibility, and is no longer under any duty to protect the plaintiff.” Id.
Pennsylvania case law illustrates that one’s assumption of the risks inherent in a particular activity eliminates the defendant’s duty of care. SeeHughes v. Seven Springs Farm Inc., 563 Pa. 501, 762 A.2d 339, 343 (2000) (explaining that under Section 496A of the Restatement Second of Torts, where the plaintiff assumes the risk of harm, the defendant is under no duty to protect the plaintiff from such risks); Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 125 (1983) (explaining that one’s assumption of the risk of injury is simply another way of expressing the lack of duty on the part of the defendant to protect against such risks); Thompson v. Ginkel, 95 A.3d 900, 906 (Pa. Super. 2014) (citation omitted) (acknowledging that the assumption of the risk doctrine is a function of the duty analysis required in all negligence actions).
Relying on this substantive tort law, the Superior Court in the instant case held that by knowingly and voluntarily executing a valid agreement expressly assuming the risks inherent in participating in the sporting event, Decedent extinguished Triathlon’s duty of care, thereby rendering its conduct not tortious. Valentino, 150 A.3d at 493.[4] As noted, the intermediate appellate court concluded that absent tortious conduct, Appellant’s wrongful death claim could not survive as a matter of law; thus, the trial court did not err in granting summary judgment in favor of Triathlon. Id.
The Superior Court in the instant case readily distinguished Pisano on the ground that it did not involve an agreement to assume all risks inherent in a particular activity, which would serve to eliminate the duty element of the wrongful death action against the alleged tortfeasor. Acknowledging Pisano’s principle that a third party’s right of action in a wrongful death claim is an independent statutory claim of a decedent’s heirs and is not derivative of a decedent’s right of action, the Superior Court emphasized that “a wrongful death claim still requires a tortious injury to succeed.” Valentino, 150 A.3d at 493. The Superior Court cogently explained that Pisano does not undermine the fundamental principle that a statutory claimant in a wrongful death action has the burden of proving that the defendant’s tortious conduct caused the decedent’s death. It opined that this cannot occur where the
decedent assumed all risks inherent in participating in the activity and thereby abrogated any duty the putative tortfeasor may have had. Id.
Similarly, the Superior Court distinguished this Court’s decision in Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989), upon which Appellant had relied. Valentino, 150 A.3d at 495. In that case, James Buttermore was injured in an automobile accident and signed a release in settlement of his claim against the tortfeasors for the sum of $25,000, agreeing to release all persons from liability. Buttermore, 561 A.2d at 734. The issue on appeal to this Court was whether Buttermore’s wife, who was not a signatory to the settlement agreement, had an independent right to sue the tortfeasors for loss of consortium. Id. at 735. Acknowledging that the release applied to all tortfeasors, including the defendants, this Court held that one could not bargain away the rights of others who were not a party to the contract. Id. Because Buttermore’s wife was not a party to her husband’s settlement agreement and because she sought to sue in her own right for loss of consortium, we held that she had an independent cause of action, unaffected by her husband’s settlement agreement. Id. at 736.
The Superior Court below distinguished Buttermore, finding that unlike the express assumption of the risk agreement here, the settlement agreement in Buttermore did not extinguish a requisite element of the wife’s loss of consortium claim. Valentino, 150 A.3d at 496. Stated differently, unlike the express assumption of the risk agreement in the instant case, nothing in the settlement agreement in Buttermore precluded the finding that the defendants acted tortiously.
We agree with the Superior Court’s application of well-settled tort law and its conclusion that the assumption of the risk agreement entered into between Decedent and the Triathlon operates much differently than the settlement agreement in Buttermore and the arbitration agreement in Pisano, as the latter agreements do not preclude a finding that the defendant acted tortiously. We further agree with the intermediate appellate court that a decedent’s valid assumption of the risk agreement does not negate his heir’s right to commence a wrongful death lawsuit, but it “can support a defense asserting that the alleged tortfeasor owed no duty to the decedent.” Valentino, 150 A.3d at 494.
Accordingly, once Decedent extinguished Triathlon’s duty of care by expressly assuming all risks in the inherently dangerous sporting event, his heir could not resurrect that duty of care after his death. To do so would afford a decedent’s heirs more rights than those possessed by a decedent while alive. Such a result not only defies logic, but also the statutory requisites for a wrongful death claim. As there is no genuine issue of material fact and it is clear that Triathlon is entitled to judgment as a matter of law, we would affirm the judgment of the Superior Court, which affirmed the trial court order granting summary judgment in Triathlon’s favor. See Pa.R.C.P. 1035.2 (providing that summary judgment is appropriate only when there is no genuine issue as to any material fact or when a party which will bear the burden of proof has failed to present evidence sufficient to present the issue to the jury).
As noted, regarding the OISR’s sua sponte public policy declaration, our primary objection is that the issue of whether the express assumption of the risk agreement violates public policy is not properly before the Court; thus, the grant of relief on this claim cannot serve as a means to disturb the judgment of the Superior Court.
SeeSteiner v. Markel, 600 Pa. 515, 968 A.2d 1253, 1256 (2009) (holding that an appellate court may not reverse a judgment on a basis that was not properly raised and preserved by the parties).
Additionally, we observe that the OISR declares the express assumption of the risk agreement violative of the public policy set forth in the Wrongful Death Act, i.e., to compensate family members of victims of tortious conduct, without any explanation as to how tortious conduct can exist in the absence of a duty of care. Further, the OISR seeks to invalidate not all express assumption of the risk contracts, but only those relating to wrongful death claims, based upon the public policy set forth in the Wrongful Death Act. Accordingly, under the OISR’s reasoning, express assumption of the risk agreements would generally be valid to preclude a participant’s ordinary negligence claims against the purveyor of an inherently dangerous sport or activity, but would be invalid where a participant’s injuries were fatal and his heirs sought recovery for wrongful death. Thus, a participant who suffered grievous non-fatal injury would have no redress, but his family would have redress if the participant succumbed to his injuries.
This result is untenable as there is no evidence to suggest that it is the public policy of the Commonwealth of Pennsylvania to elevate the rights of victims’ heirs over those of the victims themselves or to immunize wrongful death claims from ordinary and readily available defenses. In fact, not only did the General Assembly premise recovery in wrongful death on the precise tortious conduct that caused the decedent’s fatal injuries, but directed expressly that a wrongful death action “may be brought, under procedures prescribed by general rules.” 42 Pa.C.S. § 8301(a). There is simply no provision in the Wrongful Death Act that renders an heir’s entitlement to relief absolute. Had the Legislature intended that mandate, it would have so directed.
Moreover, it is not the role of this Court to create the public policy of this Commonwealth. Instead, “public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest.” Burstein v. Prudential Prop. & Cas. Ins. Co., 570 Pa. 177, 809 A.2d 204, 207 (2002) (quoting Eichelman v. Nationwide Ins. Co., 551 Pa. 558, 711 A.2d 1006, 1008 (1998)). We have held that “only dominant public policy” justifies the invalidation of a contract and in the “absence of a plain indication of that policy through long governmental practice or statutory enactments, or violations of obvious ethical or moral standards, the Court should not assume to declare contracts contrary to public policy.” Burstein, 809 A.2d at 207. Significantly, we have acknowledged that in such circumstances, “courts must be content to await legislative action.” Id.
The OISR fails to heed this warning. By declaring the public policy of this Commonwealth, untethered to legislative fiat and in a case where the issue is not before us, the OISR comes dangerously close to displacing the legislative process with judicial will. Accordingly, we would affirm the judgment of the Superior Court, which affirmed the order granting summary judgment in favor of the Triathlon. While the facts of this case are most tragic, this Court may not afford relief where the law does not so provide.
Chief Justice Saylor and Justice Todd join this opinion in support of affirmance.
OPINION IN SUPPORT OF REVERSAL
DOUGHERTY, JUSTICE.
The question before the Court is whether the Superior Court erred when it determined
a pre-injury exculpatory waiver signed by a triathlon participant provides a complete defense to claims brought by the participant’s non-signatory heirs pursuant to the Wrongful Death Act, 42 Pa.C.S. § 8301. We would find the waiver is unenforceable against the heirs and does not preclude their wrongful death action. We would therefore reverse the Superior Court’s decision and remand to the trial court for further proceedings.
In 2010, appellee Philadelphia Triathlon, LLC, organized the Philadelphia Insurance Triathlon Sprint (the Triathlon). The Triathlon consisted of three events: (1) a 0.5 mile swim; (2) a 15.7 mile bicycle race; and (3) a 3.1 mile run. The swim portion of the Triathlon took place in the Schuylkill River in Philadelphia, Pennsylvania. As a participant in the Triathlon, Decedent, Derek Valentino, registered as a participant for the Triathlon and executed a Waiver and Release of Liability (the Waiver) by affixing his electronic signature to an online registration form.
On race day, at approximately 8:30 a.m., Decedent entered the Schuylkill River for the swim portion of the Triathlon, but he did not complete the swim and, on the following day, his body was recovered from the Schuylkill River. There is no dispute Decedent drowned in the river while participating in the Triathlon. SeeValentino v. Phila. Ins. Co., No. 120401417, 2014 WL 4796614, at *1 (Pa. Com. Pl. Aug. 26, 2014).
Appellant Michele Valentino filed a lawsuit in her individual capacity and as Administratrix of the Estate of Derek Valentino, against several defendants, including appellee, asserting survival claims on Decedent’s behalf and wrongful death claims on her own behalf and that of her children.[1] See Amended Complaint at ¶¶ 26-28, 34-36, citing 42 Pa.C.S. § 8302 (Survival Act provides “[a]ll causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant …”); Amended Complaint at ¶¶29-33, 37-41, citing 42 Pa.C.S. § 8301(a), (b) (Wrongful Death Act provides spouse, children or parents of decedent can bring action “to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another”).[2] In response to preliminary objections, the trial court entered orders striking from the complaint all references to outrageous acts, gross negligence and recklessness. The trial court also struck appellant’s claim for punitive damages. Remaining in the case were several allegations of ordinary negligence, specifically, that appellee failed to: make a
reasonable inspection of the premises and event course; remove or take measures to prevent dangerous conditions; follow rules, regulations, policies and procedures governing safety standards; properly train the Triathlon’s agents, servants and employees with respect to safety rules, regulations, policies and procedures; properly supervise the Triathlon’s employees to ensure the Triathlon was conducted in a reasonable and safe manner; properly construct or design a safe event route to avoid dangerous conditions; regulate or control the number of individuals participating in each phase of the race simultaneously; have proper rules, regulations, policies and procedures for the timely recognition and response of event participants in distress and need of rescue; and have adequate safety personnel on hand for each aspect of the event. Seeid. at ¶ 22(b), (d) & (f) – (l).
Thereafter, appellee filed an answer with new matter, claiming Decedent was sufficiently negligent himself to completely bar appellant’s recovery, or alternatively, to reduce appellant’s recovery in accordance with the amount of comparative negligence attributed to Decedent. See Answer with New Matter at ¶43, citing Comparative Negligence Act, 42 Pa.C.S. § 7102. In addition, appellee asserted the complete defense of assumption of risk, claiming it owed no duty to Decedent or his survivors based on Decedent’s execution of the Waiver. Id. at ¶¶44, 46.
a. Summary Judgment
On September 30, 2013, the trial court granted appellee’s motion for summary judgment and dismissed all of appellant’s remaining claims with prejudice. On appellant’s motion for reconsideration, the court opined summary judgment on the survival action was proper based on the Waiver. Valentino, 2014 WL 4796614, at *2. The court reversed itself regarding appellant’s wrongful death action, and opined that claim should be remanded for further proceedings based on the Superior Court’s decision in Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 663 (Pa. Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (Pa. 2014) (resident-decedent’s contractual agreement with nursing home to arbitrate all claims was not binding on non-signatory wrongful death claimants). Id. at *3. In recommending the wrongful death action be remanded, the trial court observed “a decedent can contract away his own right to recover in court under a survival action, [but] he cannot similarly alienate the rights of third parties to recover in their own wrongful death actions.” Id.
b. Superior Court
A divided en banc panel of the Superior Court subsequently affirmed summary judgment on all claims. Valentino v. Phila. Triathlon, LLC, 150 A.3d 483 (Pa. Super. 2016).[3] The majority reasoned that, for a decedent’s heirs to recover damages in a wrongful death action, there must be an underlying tortious act by the defendant. See id. at 492-93, quotingKaczorowski v. Kalkosinski, 321 Pa. 438, 184 A. 663, 664 (1936) (“… a right to recover must exist in the party injured when he died in order to entitle[ ] those named in the act to sue…. [W]here the deceased would have been barred by contributory negligence, or by the statute of limitations, the parties suing for his death are likewise barred.”) (internal citations omitted). The majority further held its own decision in Pisano, which allowed non-signatory wrongful death claimants to file a court action despite their decedent’s execution of an arbitration
agreement, is limited to the facts of that case. Id. at 493. The majority opined an heir’s right to recover for her decedent’s wrongful death is dependent upon the existence of a tortious act that caused the death, stating “while a third party’s wrongful death claim is not derivative of the decedent’s right of action, a wrongful death claim still requires a tortious injury to succeed.” Id. Underpinning the en banc majority’s analysis was its position that arbitration and settlement agreements “bind[ ] only the parties to the agreement while the [liability waiver] extends to non-signatory third-parties.” Id. at 497 n.9. The en banc majority considered the Waiver to be an express assumption of all risks which eliminated any legal duty otherwise owed to anyone by appellee, creating a complete bar to tort liability.[4] Id.
Appellant filed a petition for allowance of appeal and this Court granted review of two questions:
Whether the Superior Court erred when it determined that a waiver of liability form, executed solely by the decedent, and stating the signer assumes all risks of participation in a triathlon, also binds his heirs, thereby precluding them from bringing a wrongful death action?
Whether the defense of assumption of risk should be abolished except in those situations where it is specifically permitted by the Comparative Negligence Act?[5]
Valentino v. Phila. Triathlon, LLC, 641 Pa. 515, 168 A.3d 1283 (2017) (per curiam ).
Our standard and scope of review on appeal from summary judgment are well-established. “[A]n appellate court may reverse the entry of summary judgment only where it finds that the trial court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to judgment as a matter of law.” Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 1004 (2003), citingPappas v. Asbel, 564 Pa. 407, 768 A.2d 1089 (2001). In determining whether the lower court erred in granting summary judgment, the standard of review is de novo and the scope of review is plenary. Liss & Marion, P.C. v. Recordex Acquisition Corp., 603 Pa. 198, 983 A.2d 652, 657 (2009), citingLJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 647 (2009). We consider the parties’ arguments with these standards in mind.
II.
Appellant argues the Superior Court erred in determining the Waiver, which
was executed solely by Decedent, barred his heirs’ wrongful death action. Appellant first notes wrongful death actions are statutorily authorized in Pennsylvania:
(a) General rule.–An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injured individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.
42 Pa.C.S. § 8301(a). Relying on Pennsylvania jurisprudence, appellant argues a wrongful death action is derivative of the victim’s fatal injuries, but is nevertheless meant to compensate a decedent’s survivors “for the pecuniary loss they have sustained by the denial of future contributions decedent would have made in his or her lifetime.” Appellant’s Brief at 13-15, quotingFrey v. Pa. Elec. Comp., 414 Pa.Super. 535, 607 A.2d 796, 798 (1992), and citingTulewicz v. Se. Pa. Transp. Auth., 529 Pa. 588, 606 A.2d 427, 431 (1992), Kaczorowski, 184 A. at 664 (wrongful death claim is “derivative” because “it has as its basis the same tortious act which would have supported the injured party’s own cause of action”).
Appellant relies on Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989), where the tort-victim husband executed a general release and settlement agreement after a car accident which purported to waive recovery by “any and all other persons associations and/or corporations[.]” Appellant’s Brief at 15-16, quotingButtermore, 561 A.2d at 734. Plaintiff’s wife did not sign the release agreement. The Buttermores filed a suit against medical professionals who treated him after the accident, including a claim brought by wife for loss of consortium. Seeid. at 16. On appeal from summary judgment, this Court ruled husband’s claim was barred by the release he executed, but wife’s claim was not because she herself had not signed it. Id., citingButtermore, 561 A.2d at 736. Appellant argues the lower courts’ ruling the Waiver in this case, which only Decedent signed, bars his heirs’ wrongful death claims is in direct contravention of Buttermore . Id. at 17-18, citingButtermore, 561 A.2d at 735.
In response, appellee contends summary judgment was properly entered and dismissal of appellant’s wrongful death claims should be affirmed. Appellee argues a wrongful death action is derivative of, and dependent upon, a tortious act that results in decedent’s death. Appellee’s Brief at 13, citingCentofanti v. Pa. R. Co., 244 Pa. 255, 90 A. 558, 561 (1914) (additional citations omitted). Appellee insists the Superior Court correctly determined Decedent’s execution of the Waiver meant appellee’s conduct was rendered non-tortious in all respects because appellee no longer owed Decedent any duty of care. Id. at 16-17, citingMontagazzi v. Crisci, 994 A.2d 626, 635 (Pa. Super. 2010) (plaintiff knowingly and voluntarily encountering an obvious and dangerous risk relieves those “who may have otherwise had a duty”); Staub v. Toy Factory, Inc., 749 A.2d 522, 526 (Pa. Super. 2000) (en banc ) (“Our [S]upreme [C]ourt appears to have concluded that in a negligence action, the question whether a litigant has assumed the risk is a question of law as part of the court’s duty analysis ….”) (additional citations omitted). Appellee also argues Pisano is not applicable here. Appellee contends Pisano determined only the narrow issue of whether a wrongful death plaintiff is bound by an arbitration agreement which she did not sign, and is not relevant to questions regarding
the exculpatory Waiver signed by Decedent. Seeid. at 24.
III.
The Wrongful Death Act (the Act), provides an independent statutory cause of action that belongs to specific claimants, i.e. the surviving spouse, children or parents of the deceased. 42 Pa.C.S. § 8301 (Act provides spouse, children or parents of decedent can bring action “to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another”). SeeKaczorowski, 184 A. at 665 (“By the statute there is given an explicit and independent right of action to recover the damages peculiarly suffered by the parties named therein.”). This statutory claim for wrongful death “is derivative because it has as its basis the same tortious act which would have supported the injured party’s own cause of action. Its derivation, however, is from the tortious act and not from the person of the deceased, so that it comes to the parties named in the statute free from personal disabilities arising from the relationship of the injured party and tort-feasor.” Id. at 664 (internal citations omitted). Accordingly, Pennsylvania courts recognize that while wrongful death actions seek damages for losses to heirs arising from their relative’s wrongful death, the claims are not derivative of — or limited by — the decedent’s own rights. SeePisano, 77 A.3d at 660.
It is clear the General Assembly intended the Act to compensate the decedent’s surviving heirs, not the decedent himself, whose own losses are encompassed in a survival action. Compare 42 Pa.C.S. § 8301(wrongful death) with 42 Pa.C.S. § 8302 (survival); see alsoAmato v. Bell & Gossett, 116 A.3d 607, 625 (Pa. Super. 2015), quotingHatwood v. Hosp. of the Univ. of Pa., 55 A.3d 1229, 1235 (Pa. Super. 2012) (“The purpose of the Wrongful Death Statute … is to compensate the decedent’s survivors for the pecuniary losses they have sustained as a result of the decedent’s death…. A wrongful death action does not compensate the decedent; it compensates the survivors for damages which they have sustained as a result of the decedent’s death.”) (additional citations omitted). The Act is thus designed to assure a decedent’s heirs may seek compensation “for the loss of pecuniary benefits which [they] would have received from the deceased had death not intervened.” Kaczorowski, 184 A. at 665. Also, the Act is a remedial statute, and as such it must be liberally interpreted to effect its purpose and promote justice. 1 Pa.C.S. § 1928(c); Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085, 1087 (1985) (wrongful death statute is “remedial in nature and purpose, and as such should be liberally construed to accomplish the objective of the act”); see alsoO’Rourke v. Commonwealth, 566 Pa. 161, 778 A.2d 1194, 1203 (2001) (noting remedial statutes are to be liberally construed to effect objectives).
With these principles and the legislative purpose of the Act in mind, we must determine whether the Waiver provides a complete defense to a wrongful death claim brought by non-signatory heirs. A liability waiver is, at its core, a contract, and must be construed and interpreted in the same manner as other contracts — such as arbitration clauses or settlement agreements and releases — when determining whether it is effective against a non-signatory third party. The Waiver purports to be an exculpatory contract, and such contracts are generally disfavored by the law. SeeEmployers Liability Assur. Corp. v. Greenville Business Men’s Ass’n., 423 Pa. 288, 224 A.2d 620, 623 (1966) (“contracts providing for immunity from liability for negligence must be construed strictly since
they are not favorites of the law”); see alsoSoxman v. Goodge, 372 Pa.Super. 343, 539 A.2d 826, 828 (1988) (“the law … recognized that lying behind [exculpatory] contracts is a residuum of public policy which is antagonistic to carte blanche exculpation from liability and thus developed the rule that these provisions would be strictly construed with every intendment against the party seeking their protection”), quotingPhillips Home Furnishings Inc. v. Continental Bank, 231 Pa.Super. 174, 331 A.2d 840, 843 (1974). Accordingly, a pre-injury exculpatory agreement is valid only when “it does not contravene public policy, is between parties relating entirely to their private affairs, and where each party is a free bargaining agent so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1177 (2010), citingTopp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (1993). This Court has consistently recognized the exculpatory contract is an agreement that is “intended to diminish legal rights which normally accrue as a result of a given legal relationship or transaction … [which must be] construed strictly against the party seeking [its] protection.” Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (1963), quotingMorton v. Ambridge Borough, 375 Pa. 630, 101 A.2d 661, 663 (1954).
Thus, in determining whether the Waiver provides a defense to appellant’s wrongful death action, we must liberally apply the remedial Act while we simultaneously construe the Waiver strictly against appellee as the party seeking protection from the contract. We would hold the Superior Court did the opposite in its decision below: the court erroneously gave the Waiver the broadest application possible while disregarding the remedial nature of the Act and the public policy considerations underpinning it.[6]
First, we note the Waiver is a contract between Decedent and appellee involving their own private affairs. Chepkevich, 2 A.3d at 1177. The Waiver includes broad language barring Triathlon participants from filing suit to recover damages for injuries or death “which may arise out of, result from, or relate to my participation in the [Triathlon], including claims for Liability caused in whole or in part by the negligence of” appellees. See Waiver attached as Exhibit A to appellee’s Answer and New Matter. However, the Waiver is plainly not an agreement between Triathlon participants’ wrongful death heirs and appellee. We emphasize a wrongful death action belongs solely to a decedent’s heirs, is intended to compensate them, and does not accrue to the decedent. SeeHatwood, 55 A.3d at 1235, quotingMachado v. Kunkel, 804 A.2d 1238, 1246 (Pa. Super. 2002) (“Under the wrongful death act the widow or family is entitled, in addition to costs, to compensation for the loss of the contributions decedent would have made …”). Thus, while a pre-injury exculpatory
waiver might indeed be effective to bar a survival claim by a decedent’s estate, it is quite another thing to conclude the decedent’s agreement acts as a complete defense to statutory claims that are specifically available to his non-signatory heirs. Appellee argues the Waiver provides a complete defense to appellant’s wrongful death claim, but in our considered view, allowing the Waiver to have this effect would require us to ignore the purpose of the Act and the public policy concerns it was specifically enacted to protect.[7]
Our conclusion is consistent with prior Pennsylvania case law arising from wrongful death actions. As this Court has stated, such lawsuits are meant to compensate the statutory beneficiaries, i.e. the spouse, children or parents of the decedent for the pecuniary losses they sustained as a result of their relative’s death. SeeTulewicz, 606 A.2d at 431. Accordingly, our courts have recognized the distinct nature of these claims and have declined to enforce a decedent’s own agreements and obligations against his heirs. SeeButtermore, 561 A.2d at 736 (release signed by husband barred his own action against hospital but not the independent action of wife, who did not sign release); Pisano, 77 A.3d at 660, citingKaczorowski, 184 A. at 664 (wrongful death claim is derived from injury to decedent but it is independent and distinct cause of action; decedent’s agreement to arbitrate not binding on non-signatory heirs); see alsoRickard v. Am. Nat’l Prop. & Cas. Co., 173 A.3d 299 (Pa. Super. 2017) (decedent’s agreement to accept insurance benefits in exchange for allowing subrogation by insurer not binding on non-signatory heirs who recovered damages in subsequent wrongful death action against tortfeasor). The Waiver in this regard is analogous to the settlement and release agreement at issue in Buttermore, or the arbitration agreement in Pisano .
We observe that the undisputed purpose of the Act is “to provide a cause of action against one whose tortious conduct caused the death of another.” Amadio, 501 A.2d at 1087. And, as we have stated, exculpatory contracts must be read narrowly. SeeDilks, 192 A.2d at 687; see alsoTayar v. Camelback Ski Corp. Inc., 616 Pa. 385, 47 A.3d 1190, 1196 (2012) (for exculpatory clause to be enforceable “contract language must be construed strictly”), quotingTopp Copy, 626 A.2d at 99. Allowing the Waiver to have a broad exculpatory effect with respect to non-signatory wrongful death claimants would essentially make the right the General Assembly created for certain heirs through the Act an illusory one. Abrogation of an express statutory right to recovery in this way violates public policy, and a pre-injury exculpatory waiver that contravenes public policy is invalid and unenforceable. Chepkevich, 2 A.3d at 1177. Cf.Tayar, 47 A.3d at 1203 (curtailing purported effect of waiver on public policy grounds). Moreover, our recognition of relevant public policy concerns in this regard does not constitute “creation” of public policy. See OISA at 947. Our law is clear that determination of whether contract terms may be avoided on public policy grounds “requires a showing of overriding public policy from legal precedents [or] governmental practice ….” Tayar, 47 A.3d at 1199. The public policy
we recognize here is well-established in both judicial precedents and statutory enactment. This Court has declined to enforce exculpatory contracts “[w]here the legislature has, by definite and unequivocal language, determined the public policy of this Commonwealth with regard to a particular subject, [because] that pronouncement cannot be set aside and rendered unenforceable by a contract between individuals.” Boyd v. Smith, 372 Pa. 306, 94 A.2d 44, 46 (1953) (exculpatory waiver of liability unenforceable on public policy grounds due to conflict with statute). Precluding the use of the Waiver as a carte blanche automatic defense to wrongful death actions comports with the remedial purpose and protection expressed in the Act. A contrary holding elevates a private contract above public policy embodied in a statutory enactment, and overrides our jurisprudence directing a narrow and strict construction of exculpatory waivers.
Accordingly, we would hold the Waiver is void and unenforceable with respect to appellant’s wrongful death claims and, as such, the Waiver should not be available to appellee as a defense in the underlying wrongful death litigation.[8] We would hold the Superior Court erred in affirming summary judgment in favor of appellee on that basis, and reverse and remand to the trial court for further proceedings on appellant’s wrongful death claim.
Justice Donohue and Justice Mundy join this opinion in support of reversal.
OPINION IN SUPPORT OF REVERSAL
DONOHUE, JUSTICE.
I join Justice Dougherty’s Opinion in Support of Reversal (“OISR”) in full. I too disagree with the Superior Court’s conclusion that the Decedent’s exculpatory agreement may serve as a complete defense to the wrongful death heir’s claim against the Triathlon. I write separately to express my view that, in light of the derivative nature of wrongful death actions, the Superior Court was technically correct in its analysis of the mechanical operation of the liability waiver in reaching its conclusion. However, when the mechanical operation of the law works to defeat the purpose of a remedial statute like the Wrongful Death Act, by way of the broad enforcement of a legally disfavored exculpatory agreement, the mechanical operation must yield.
As Justice Dougherty explains, this Court has repeatedly affirmed a requirement that exculpatory agreements must be narrowly and strictly construed because exculpatory language, which purports to relieve a person of liability even when he has negligently caused injury to another, is not favored in the law. OISR (Dougherty, J.) at 952-53, 954-55 (citing Employers Liability Assur. Corp. v. Greenville Business Men’s Ass’n., 423 Pa. 288, 224 A.2d 620, 623 (1966); Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (2010); Topp Copy Prods. Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98 (1993);
Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (1963)). Here, Appellant does not challenge the validity or the enforceability of the contractual assumption of risk in the survival action she brought (as administratrix) on behalf of Decedent’s estate. Therefore, for purposes of this appeal, the liability waiver is valid and enforceable as a complete defense to the survival action. As between the Triathlon and Decedent, there is a knowing and voluntary agreement to extinguish Decedent’s ability to recover for claims of ordinary negligence.
I believe that we must, however, decline to allow the liability waiver to defeat a wrongful death action brought by heirs who never agreed, expressly or otherwise, to eliminate their statutory right to recover for their pecuniary loss resulting from the death of their loved one that, as alleged, was tortious but for the liability waiver. Allowing the liability waiver to defeat the wrongful death action, as the Superior Court did, gives the waiver the broadest possible reading, contrary to our mandate to narrowly construe such provisions. The tenet of strict construction requires that we limit this liability waiver to its narrowest effect: a bar to recovery under the survival action.
Moreover, as noted by Justice Dougherty, for an exculpatory waiver to be valid, it must meet three conditions: it must not contravene public policy, the contract must be between persons relating entirely to their own private affairs, and each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. OISR (Dougherty, J.) at 952-53 (citing Chepkevich, 2 A.3d at 1177). As to these first two prongs, this Court’s decision in Boyd v. Smith, 372 Pa. 306, 94 A.2d 44 (1953), is instructive. In Boyd, an agreement between a property owner and a tenant relieved the property owner from liability for any injury occasioned by the property owner’s negligence in the maintenance of the leased building. Boyd, 94 A.2d at 45. However, pursuant to statute, “no building … shall be used for human habitation unless it is equipped with a fire escape or fire escapes as required by law.” Id. (quoting 53 P.S. § 3962). The property in question was not equipped with fire escapes. The building caught fire and, unable to escape the building by fire escape, the tenant sustained serious injuries and sued. The property owner attempted to rely on the exculpatory agreement in the lease to avoid liability.
We declined to find the waiver enforceable, explaining:
Such a protective clause is undoubtedly valid and enforceable if it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or the state but merely an agreement between persons relating entirely to their private affairs. The situation becomes an entirely different one in the eye of the law when the legislation in question is, as here, a police measure obviously intended for the protection of human life; in such event public policy does not permit an individual to waive the protection which the statute is designed to afford him.
Id. at 46. We further held, “where the legislature has, by definite and unequivocal language, determined the public policy of this Commonwealth with regard to a particular subject, that pronouncement cannot be set aside and rendered unenforceable by a contract between individuals.” Id.
We are tasked here with determining the legal effect of a liability waiver upon a third party, not the signatory – a far more extreme reach of the waiver of liability than in Boyd . However, as in Boyd, the fullest enforcement of the liability waiver would contravene an unequivocal policy determination by the General Assembly,
namely that wrongful death heirs are entitled to recover pecuniary losses from the party responsible for their provider’s death. See OISR (Dougherty, J.) at 952-53, 954.
The Wrongful Death Act, which is remedial in nature and must be construed liberally, assures that surviving heirs do not need to go without financial support nor look to public welfare agencies to shoulder the economic burden of the loss of a provider. SeeKaczorowski, 184 A. at 665; see alsoGershon v. Regency Diving Center, 368 N.J.Super. 237, 845 A.2d 720, 728 (2004) (observing that, “in many wrongful death cases the decedent was the ‘breadwinner’ and the heirs are children, incompetents or those otherwise economically dependent on the decedent”). Notably, in the case at bar, Decedent was a forty-year-old husband and father of two who worked full-time for United Parcel Service and part-time as a licensed realtor. See Appellant’s Response to Triathlon’s Motion for Summary Judgment at 2.
Allowing the Triathlon to use Decedent’s waiver of liability to defeat a wrongful death claim would require us to ignore clear public policy embedded in the wrongful death statute and our laws governing decedents more generally. Analogously, the General Assembly has for centuries prohibited spousal disinheritance by will in order to ensure the surviving spouse’s financial security after the decedent’s death. SeeIn re Houston’s Estate, 371 Pa. 396, 89 A.2d 525, 526 (1952); see also 20 Pa.C.S. § 2203 (authorizing a surviving spouse to take against the will an elective share of one-third of the deceased’s property, subject to certain exceptions, thereby ensuring the surviving spouse’s right to some inheritance). Thus, a married individual cannot eliminate his spouse’s statutory entitlement, even through an attempted disinheritance in a last will and testament. In my view, it is impossible to reconcile allowing a sporting event participant to eradicate a statutory claim for wrongful death damages when he could not accomplish a disinheritance by virtue of a will. For this reason, and because liability waivers are disfavored, I join Justice Dougherty in narrowly construing the liability waiver so that it is enforceable only in the survival action brought on behalf of Decedent’s estate, where it was not challenged. Cf.Tayar, 47 A.3d at 1203 (curtailing purported effect of waiver on public policy grounds). So construed, it has no effect on the wrongful death action. Like Justice Dougherty, I would decline to give any effect to the Decedent’s contractual waiver of the Triathlon’s duty of care in the wrongful death action because doing so would implicate public, not merely private, affairs and would contravene the policy set forth by our legislature in the Wrongful Death Act which we must liberally construe. OISR (Dougherty, J.) at 954-55; see alsoChepkevich, 2 A.3d at 1189; Boyd, 94 A.2d at 46.
———
Notes:
[1] We also granted allowance of appeal to determine whether to abolish the assumption of the risk doctrine under circumstances where the Comparative Negligence Act does not expressly permit its application. Appellant, however, waived this issue by not challenging the overall viability of the assumption of the risk doctrine in the lower tribunals. See Pa.R.A.P. 302(a) (providing that “[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal”).
[2] In block capital lettering above the signature line, the Agreement stated that Decedent’s acceptance of the Agreement confirmed that he read and understood its terms, that he understood that he would surrender substantial rights, including the right to sue, and that Decedent signed the agreement freely and voluntarily. Id. This final paragraph went on to state that acceptance of the Agreement constituted “a complete and unconditional release of all liability to the greatest extent allowed by law.” Id.
[3] In Pisano, the decedent had executed an agreement at the time of his admission to a long-term care nursing facility (“Extendicare”), providing that any dispute arising from the agreement would be resolved by binding arbitration. Id. at 653. The decedent’s son subsequently commenced a wrongful death action against Extendicare in the trial court. Extendicare filed preliminary objections, seeking to have the case dismissed for lack of subject matter jurisdiction. The trial court overruled Extendicare’s preliminary objections, holding that a wrongful death action is a creature of statute and is independent of the right of action of the decedent’s estate. Id. at 654. Thus, the trial court concluded, the decedent’s agreement to arbitrate disputes did not preclude the wrongful death claim brought by the decedent’s son. Id.
The Superior Court affirmed. The court reasoned that pursuant to 42 Pa.C.S. § 8301, a wrongful death action is not derivative of the decedent’s claim, but is a separate and distinct right of action belonging to statutory claimants to compensate them for damages they sustained as a result of the decedent’s death. Id. at 656-8. The Pisano court concluded that the arbitration agreement was not binding on the decedent’s son because he was not a party to that agreement; thus, the trial court was correct in refusing to compel arbitration.
[4] Notably, the Superior Court presumed the validity of the Agreement as Appellant presented no claim to the contrary. See id. at 492 n.6 (explaining that Appellant “does not challenge the substantive validity of the liability waiver as a bar to her claims of ordinary negligence. Consequently, we need not address the validity of the exculpatory provisions in the context of this case.”). By declaring the Agreement void as against public policy, the OISR ignores this clear waiver of any challenge to the Agreement on those grounds.
[1] Appellant stipulated to the dismissal of all defendants other than appellee on January 29, 2013, and they are not involved in this appeal. See Stipulation of Dismissal Without Prejudice.
[2] In Pennsylvania, wrongful death claims are separate and distinct from survival claims, although both involve allegations of negligence against the defendant. SeeDubose v. Quinlan, 643 Pa. 244, 173 A.3d 634, 637 (2017); Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1, 4 (1994) (discussing differences between survival and wrongful death claims); Tulewicz v. Se. Pa. Transp. Auth., 529 Pa. 588, 606 A.2d 427, 431 (1992); (“the two actions are designed to compensate two different categories of claimants”); Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 654 (Pa. Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (Pa . 2014) (“Pennsylvania courts have repeatedly distinguished wrongful death claims from survival claims”). The survival claim is the “continuation of a cause of action that accrued to the plaintiff’s decedent while the decedent was alive …. On the other hand, a wrongful death action accrues to the decedent’s heirs when the decedent dies of such an injury ….” Dubose, 173 A.3d at 637. As explained more fully infra, a wrongful death claim is an independent action which belongs to the decedent’s heirs for damages aimed to compensate members of a decedent’s family for their loss. Tulewicz, 606 A.2d at 431.
[3] Judge Olson authored the majority opinion joined by P.J. Gantman, P.J.E. Bender, and Judges Bowes, Shogun and Ott.
[4] In a concurring and dissenting opinion joined by Judges Panella and Lazarus, P.J.E. Ford Elliott determined Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989) was instructive on the analysis of the Waiver, despite the majority’s effort to distinguish it. Valentino, 150 A.3d at 501-02 (Ford Elliott, P.J.E., concurring and dissenting). Judge Ford Elliott noted the Waiver is similar to the release in Buttermore, and the non-signatory heir in that case had an independent right to sue for the injury she suffered as a result of her decedent’s death. Id. Judge Ford Elliott stated the majority’s holding the Decedent’s own assumption of risk created a complete defense to his heirs’ wrongful death action would “eviscerate the Pennsylvania wrongful death statute which creates an independent and distinct cause of action, not derivative of the decedent’s rights at time of death.” Id. at 502. Judge Ford Elliott would also have relied on Pisano to reverse summary judgment. Id. at 504.
[5] This Court granted review of this second issue and ordered supplemental briefing via a per curiam order dated January 26, 2018. As acknowledged by the Opinion in Support of Affirmance (OISA), although appellant challenged the effectiveness of the Waiver as it applied to Decedent, she never questioned the overall viability of the doctrine of assumption of the risk below, and the issue is therefore waived. See OISA at 942, n.1.
[6] The OISA suggests our view of the case ignores the question before the Court. See OISA at 942-43. Respectfully, the OISA’s position reveals an overly narrow reading of the issue on appeal, i.e., whether an exculpatory contract can be enforced against non-signatory heirs in a claim made pursuant to the Wrongful Death Act. Seesupra at 950-51. In answering that question, we examine the terms of the Waiver within the context in which it is to be enforced. We cannot disregard the nature of the underlying suit and our jurisprudence guiding our interpretation of exculpatory contracts, which specifically includes a consideration of public policy. SeeChepkevich, 2 A.3d at 1177 (exculpatory agreement is valid only when “it does not contravene public policy …”). Although the question granted on appeal did not include the term “public policy,” we must surely consider public policy when determining whether an exculpatory agreement is valid and enforceable under the given circumstances.
[7] The OISA accurately observes an exculpatory agreement would “generally be valid to preclude a participant’s ordinary negligence claims against the purveyor of an inherently dangerous sport or activity,” but nevertheless rejects our view that the same waiver could be ineffective as a defense in a wrongful death claim while providing a viable defense in a survival action. See OISA at 947. We consider the disparate treatment of the Waiver in the two causes of action to be the direct result of the different goals and purposes served by the relevant statutes. Seesupra at 942, n.2.
[8] Importantly, our holding would not render appellee defenseless in that litigation, despite the OISA statement our reading means appellant’s right to relief is “absolute”. See OISA at 947. We recognize a wrongful death action is a tort claim arising from the alleged “wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S. § 8301. Appellant must still prove the elements of her case, including causation, before any recovery would be assured. See, e.g.,Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 1008 (2003) (to maintain negligence action, plaintiff must show defendant had duty to conform to standard of conduct, breach of duty, the breach caused the injury, and the injury resulted in damages).
———
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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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Table of Contents
Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2 U.S. Legal System and Legal Research
Chapter 3 Risk 25
Chapter 4 Risk, Accidents, and Litigation: Why People Sue
Chapter 5 Law 57
Chapter 6 Statutes that Affect Outdoor Recreation
Chapter 7 Pre-injury Contracts to Prevent Litigation: Releases
Chapter 8 Defenses to Claims
Chapter 9 Minors
Chapter 10 Skiing and Ski Areas
Chapter 11 Other Commercial Recreational Activities
Chapter 12 Water Sports, Paddlesports, and water-based activities
Chapter 13 Rental Programs
Chapter 14 Insurance
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Table of Contents
Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2 U.S. Legal System and Legal Research
Chapter 3 Risk 25
Chapter 4 Risk, Accidents, and Litigation: Why People Sue
Chapter 5 Law 57
Chapter 6 Statutes that Affect Outdoor Recreation
Chapter 7 PreInjury Contracts to Prevent Litigation: Releases
Chapter 8 Defenses to Claims
Chapter 9 Minors
Chapter 10 Skiing and Ski Areas
Chapter 11 Other Commercial Recreational Activities
Chapter 12 Water Sports, Paddlesports, and water-based activities
Chapter 13 Rental Programs
Chapter 14 Insurance
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Scotti and Russo v. Tough Mudder Incorporated and Tough Mudder Event Production Incorporated, 97 N.Y.S.3d 825, 63 Misc.3d 843
Posted: June 30, 2019 Filed under: Legal Case, New York, Racing, Release (pre-injury contract not to sue) | Tags: Agreement to Arbitrate, Arbitration clause, Clickwrap, Negligence, online, Release, Salmon Ladder, Tough Mudder, Waiver Leave a commentScotti and Russo v. Tough Mudder Incorporated and Tough Mudder Event Production Incorporated, 97 N.Y.S.3d 825, 63 Misc.3d 843
97 N.Y.S.3d 825
63 Misc.3d 843
Richard E. Scotti and Joseph Russo, Plaintiffs,
v.
Tough Mudder Incorporated and Tough Mudder Event Production Incorporated, Defendants.
No. 2019-29098
522905/17
Supreme Court of New York, Kings
March 29, 2019
[97 N.Y.S.3d 828] Plaintiffs were represented by Brandon Michael Cruz THE BONGIORNO LAW FIRM, PLLC. Address
Defendants were represented by Joshua Cash WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP Address
Opinion
Debra Silber, J.
Defendants Tough Mudder Incorporated and Tough Mudder Event Production Incorporated move for an order, pursuant to CPLR 7501 and 7503(a), to compel arbitration and to stay this action pending resolution of the arbitration proceeding. For the reasons which follow, the motion is denied.
Background and Procedural History
This personal injury action stems from an accident which occurred on July 23, 2016, when the plaintiffs Richard E. Scotti (Scotti) and Joseph Russo (Russo) (collectively, plaintiffs) participated in the “Tough Mudder,” a physically challenging obstacle course event (hereinafter, the TM Event), which took place at 1303 Round Swamp Road, Old Bethpage, New York. Defendants Tough Mudder Incorporated and Tough Mudder Event Production Incorporated (collectively, “Tough Mudder”) are the business entities that organized the TM Event. Plaintiffs commenced the within action on or about November 17, 2017 against Tough Mudder alleging that they each sustained injuries as a result of defendants’ negligent operation of an activity at the event, referred to as the “salmon ladder.” Tough Mudder joined issue on or about December 20, 2017, with the service of a Verified Answer. In their answer, Tough Mudder denied all material allegations and asserted various affirmative defenses, including that the plaintiffs’ action is barred by the participation/registration agreement, which included an arbitration clause.
Tough Mudder now moves, pursuant to CPLR 7501 and 7503, to compel arbitration, arguing that the plaintiffs are barred from pursuing the instant action in this Court because they each waived the right to sue by virtue of agreeing to arbitrate any “disputes, controversies, or claims” arising out of their participation in the TM event. Tough Mudder claims that the plaintiffs each entered into an agreement to arbitrate all claims related to their participation in the TM Event when they completed an on-line internet registration form. In support of this contention, Tough Mudder has submitted the sworn affidavit of Jenna Best, the Manager of Customer Relations for Tough Mudder Incorporated (Affirmation of Joshua Cash, Exhibit C). Best avers that she is fully familiar with the TM Event on-line registration process as it existed in 2016 when the plaintiffs registered for the TM Event at issue.[1] Tough Mudder has submitted copies of the on-line registration forms that the plaintiffs allegedly completed for the TM Event (Cash Affirmation, Exhibit D). Best states that, during the on-line registration process, the plaintiffs were required to scroll down to a section containing the “Participant Waiver and Course Rules” (hereinafter, PWCR), a document version of which has been submitted herein (Cash Affirmation, Exhibit F). She contends that the full text of the PWCR was contained in a box on the screen, which could be read by scrolling down in the text box. Best contends that the initial visible content of the scrollable box, which preceded the full PWCR document, which could be read in its entirety by scrolling down, read as follows:
“Participant Waiver: Tough Mudder Incorporated
ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND INDEMNITY AGREEMENT PARTICIPANTS: READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS. (Cash Affirmation, Exhibit E).
Best claims the PWCR contained the following “Mediation and Arbitration” provision:
Mediation and Arbitration: In the event of a legal issue, I agree to engage in good faith efforts to mediate any dispute that might arise. Any agreement reached will be formalized by a written contractual agreement at that time. Should the issue not be resolved by mediation, I agree that all disputes, controversies, or claims arising out of my participation in the TM event shall be submitted to binding arbitration in accordance with the applicable rules of the American Arbitration Association then in effect. The costs of such action shall be shared equally by the parties.
I further acknowledge and agree that any question, issue or dispute as to the arbitrability of any dispute, controversy, or claim arising out of my participation in the TM event, will be submitted to an arbitrator in accordance with the applicable rules of the American Arbitration Association then in effect. The Arbitration Rules of the American Arbitration Association are available on-line at http://www.adr.org (Cash Affirmation, Exhibit F).
Below the box containing the scrollable PWCR was another box next to the statement: “I agree to the above waiver.” Best avers that it was necessary for the plaintiffs, or any other registrant, to click on the box to indicate his or her consent to the PWCR in order for the registrant to complete his or her registration for the TM Event. According to Best, the internet registration form cannot proceed to the payment page, and registration cannot be completed, until the registrant checks the box indicating his or her consent to the PWCR (Cash Affirmation, Exhibit D at ¶ 5). She further avers that both plaintiffs did in fact click on the box indicating their consent to the PWCR, as otherwise they would not have been able to participate in the TM Event (id at ¶ 6). Based upon the foregoing, Tough Mudder contends that the plaintiffs agreed to the terms of the on-line waiver, which included the arbitration clause and, therefore, are barred from pursuing the instant action. In opposition, plaintiffs argue that the arbitration provision at issue is unenforceable because Tough Mudder has failed to establish that they actually agreed to it. In this regard, plaintiffs point out that the web page where the PWCR was located contained a text box that did not show the entire document. In order to read the full PWCR, including the arbitration provision, plaintiffs contend it would have been necessary to scroll down through many screens of text using the arrows on the right-hand side of the text box. The PWCR fills seven single-spaced pages of text (Exhibit F to Cash Affirmation). Plaintiffs further argue that Tough Mudder has failed to proffer any evidence that either plaintiff actually signed/checked the consent box, or any evidence identifying the computers or electronic devices from which their respective registrations were completed.
Plaintiffs additionally argue that the arbitration clause in the PWCR is unenforceable because it contains a conflicting provision regarding disputes. Plaintiffs point out that the PWCR contains a clause entitled “Venue and Jurisdiction” located several paragraphs before the “Mediation and Arbitration” clause, which states [Exhibit F, Page 3]:
I understand that if legal action is brought, the appropriate state or federal trial court for the state in which the TM Event is held has the sole and exclusive jurisdiction and that only the substantive laws of the State in which the TM Event is held shall apply.
Plaintiffs argue that this provision clearly conflicts with the arbitration clause located many lines of type below it, thereby rendering it void and unenforceable.
Finally, plaintiffs argue that the entire PWCR agreement, including the purported arbitration provision, is unenforceable because the “Waiver of Liability for Ordinary Negligence” clause (on page three of the PWCR as Exhibit F) violates General Obligations Law (GOL) § 5-326, which prohibits contracts between the owner or operator of any “place of amusement or recreation” from exempting such owner or operator from “liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment.” In this regard, plaintiffs contend that Tough Mudder’s operation of the TM Event obstacle course was clearly operated as “a place of amusement or recreation” within the meaning of GOL § 5-326. Since the plaintiffs paid a fee to use the obstacle course and were injured while engaged in that activity, they argue that GOL § 5-326 renders the entire waiver of liability clause, and all remaining provisions of the PWCR, including the arbitration clause, void and unenforceable.
In reply, Tough Mudder points out that the plaintiffs do not dispute that they each did in fact register for the TM Event. In addition, Tough Mudder argues that GOL § 5-326 is not applicable herein and, therefore, does not invalidate the waiver or any other PWCR provision. In this regard, Tough Mudder maintains that the TM Event is distinguishable from the “recreational” activities intended to be covered under the statute, such as horseback riding, auto racing, cycling and skiing, which Tough Mudder characterizes as being “relaxed and undemanding” activities, which “do not necessitate any research or physical preparation.” Tough Mudder argues that the TM Event is distinguishable from the foregoing activities in that it is “a rigorous and grueling athletic competition that requires proper training and dedication” (Cash Reply Affirmation, at ¶ 8). Tough Mudder further argues that TM Events are “unique to their participants,” and pose risks and challenges exclusive to obstacle courses, thereby rendering such events completely distinct from the recreational activities engaged in by the “general public” as contemplated by GOL § 5-326.
In addition, Tough Mudder points out that the PWCR contains a “Severability” provision which states, in relevant part, as follows:
“I understand and agree that this … Waiver of Liability … is intended to be as broad and inclusive as is permitted by the state in which the TM Event is held and that if any provision shall be found to be … void, or for any reason unenforceable, then that provision shall be severed from this Agreement and does not affect the validity and enforceability of any remaining provisions.”
[97 N.Y.S.3d 831] In light of the foregoing provision, Tough Mudder argues that, in the event a clause is deemed unenforceable, it does not invalidate any of the remaining provisions of the PWCR, including the arbitration clause at issue.
Tough Mudder also argues that the “Venue and Jurisdiction” clause is not contradicted by the “Mediation and Arbitration” clause, as the latter clause only mandates arbitration regarding disputes “arising out of [one’s] participation in the TM event …” Therefore, Tough Mudder contends that there are clearly certain circumstances when a state or federal trial court would be the appropriate venue for claims that do not arise out of one’s participation in the TM Event. However, since plaintiffs’ claims do arise out of their participation, Tough Mudder maintains that arbitration of this matter is required.
Discussion
It is well settled that “[a] party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties’ clear, explicit and unequivocal agreement to arbitrate” (God’s Battalion of Prayer Pentecostal Church, Inc. v. Miele Assocs., LLP, 6 N.Y.3d 371, 812 N.Y.S.2d 435, 845 N.E.2d 1265 [2006] [internal quotation marks omitted]; seeMatter of Robert Stigwood Org. [Atlantic Recording Corp.], 83 A.D.2d 123, 126, 443 N.Y.S.2d 726 [1981] ). When one party seeks to compel the other to arbitrate any disputes between them, the court must first determine whether the parties made a valid arbitration agreement (seeHarriman Group v. Napolitano, 213 A.D.2d 159, 162, 623 N.Y.S.2d 224 [1995] ). The party seeking arbitration bears the burden of establishing that an agreement to arbitrate exists (seeSeneca Ins. Co. v. Secure— Southwest Brokerage, 294 A.D.2d 211, 212, 741 N.Y.S.2d 690 [2002]; Matter of Allstate Ins. Co. v. Roseboro, 247 A.D.2d 379, 380, 667 N.Y.S.2d 914 [1998] ). The court must draw all inferences in favor of the non-moving party. (Nicosia v. Amazon.com Inc., 834 F.3d 220, 229 [2d Cir. 2016] ).
“The creation of online contracts ‘has not fundamentally changed the principles of contract’ ” (Resorb Networks, Inc. v. YouNow.com, 51 Misc.3d 975, 981, 30 N.Y.S.3d 506 [Sup.Ct. N.Y. County 2016] quoting Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 [2d Cir. 2004] ). The question of whether there is agreement to accept the terms of an on-line contract turns on the particular facts and circumstances. Courts generally look for evidence that a website user had actual or constructive notice of the terms by using the website (seeSchnabel v. Trilegiant Corp., 697 F.3d 110, 120 [2d Cir. 2012] ). Where the person’s alleged consent is solely online, courts seek to determine whether a reasonably prudent person would be put on notice of the provision in the contract, and whether the terms of the agreement were reasonably communicated to the user (id. at 120; see Fteja v. Facebook, Inc., 841 F.Supp.2d 829, 833, 835 [S.D.N.Y. 2012]; Starke v. Gilt Groupe, Inc., 2014 WL 1652225, *2, *3, 2014 U.S. Dist. LEXIS 58006, *6-7 [S.D.N.Y. 2014]; Jerez v. JD Closeouts, LLC, 36 Misc.3d 161, 168, 943 N.Y.S.2d 392 [Nassau Dist. Ct. 2012] ). In Specht v. Netscape Commc’ns Corp., 306 F.3d 17 (2d Cir. 2002), the court emphasized that “[r]easonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility” (id. at 35; seeStarke v. Squaretrade, Inc., No. 16-CV-7036 [NGG], 2017 WL 3328236, at *5 [E.D.N.Y. Aug. 3, 2017], affd 913 F.3d 279 [2d Cir. 2019] ).
In Berkson v. Gogo LLC, 97 F.Supp.3d 359, 394-403 (E.D.N.Y. 2015), the four “general types of online consumer contracts
are identified as (a) browsewrap; (b) clickwrap; (c) scrollwrap; and (d) sign-in-wrap.” As explained by Judge Weinstein in Berkson:
Browsewrap exists where the online host dictates that assent is given merely by using the site. Clickwrap refers to the assent process by which a user must click “I agree,” but not necessarily view the contract to which she is assenting. Scrollwrap requires users to physically scroll through an internet agreement and click on a separate “I agree” button in order to assent to the terms and conditions of the host website. Sign-in-wrap couples assent to the terms of a website with signing up for use of the site’s services…. (Id. at 394-95). (seeApplebaum v. Lyft, Inc., 263 F.Supp.3d 454, 465 [S.D.N.Y. 2017] [applying New York law and denying motion to compel arbitration where notice of contract terms was insufficient to bind plaintiff] ).
Here, the PWCR at issue appears to be a click-wrap agreement as identified in Berkson in that the clickable box is located directly below the scrollable text box that allegedly contained the full text of the agreement. Only by scrolling down in the text box would the user see all of the terms of the PWCR, including the arbitration clause at issue. However, the user could proceed to complete the registration process without necessarily scrolling down through the text box to view the full document, thereby rendering it a click-wrap agreement. At oral argument, counsel for defendants claimed that it was a scrollwrap agreement, as it was not possible to click “I agree” without scrolling through the agreement, but there is nothing in the record to support this claim.[2]
A party may be bound to a click wrap agreement by clicking a button declaring assent, so long as the party is given a “sufficient opportunity to read the … agreement, and assents thereto after being provided with an unambiguous method of accepting or declining the offer.” (Serrano v. Cablevision Sys. Corp., 863 F.Supp.2d 157, 164 [E.D.N.Y. 2012]; see alsoWhitt v. Prosper Funding LLC, 15— CV— 136, 2015 WL 4254062, at *4 [S.D.N.Y. July 14, 2015]; Kai Peng v. Uber Techs., Inc., 237 F.Supp.3d 36, 47-48 [E.D.N.Y. 2017]; Berkson, 97 F.Supp.3d at 397). However, as stated by Judge Koeltl in Applebaum v. Lyft, Inc., 263 F.Supp.3d at 466,
“[a] court cannot presume that a person who clicks on a box that appears on a … screen has notice of all contents not only of that page but of other content that requires further action (scrolling, following a link, etc.) … The presentation of the online agreement matters: Whether there was notice of the existence of additional contract terms presented on a webpage depends heavily on whether the design and content of that webpage rendered the existence of terms reasonably conspicuous…. Clarity and conspicuousness of arbitration terms are important in securing informed assent.” (internal citations omitted)
Thus, on a motion to compel arbitration, a valid agreement to arbitrate exists where the notice of the arbitration provision was reasonably conspicuous, and manifestation [97 N.Y.S.3d 833] of assent is unambiguous as a matter of law (seeSpecht v. Netscape Commc’ns Corp., 306 F.3d 17, 28 [2d Cir. 2002] ). Therefore, issue herein is whether Tough Mudder’s website registration screen put a reasonably prudent user on inquiry notice of the relevant terms of the PWCR, particularly the arbitration clause at issue (seeApplebaum, 263 F.Supp.3d at 465). Insofar as it turns on the reasonableness of notice, the enforceability of a web-based agreement is clearly a fact-intensive inquiry (id. ; seeMeyer v. Uber Techs., Inc., 868 F.3d 66, 76 [2d Cir. 2017], citing Schnabel v. Trilegiant Corp., 697 F.3d 110, 124 [2d Cir. 2012] ).
Here, plaintiffs did not have actual notice of the arbitration provision at issue in this case. However, plaintiffs can still be bound by the contractual terms if there is inquiry notice of the terms and plaintiffs “assent[ed] to [the terms] through the conduct that a reasonable person would understand to constitute assent” (Plazza v. Airbnb, Inc., 289 F.Supp.3d 537, 548 [S.D.N.Y. 2018]; see alsoNicosia, 834 F.3d at 233). A person is on inquiry notice if a “reasonably prudent offeree would be on notice of the terms at issue” (Schnabel, 697 F.3d at 120 [” ‘[I]nquiry notice’ is ‘actual notice of circumstances sufficient to put a prudent man upon inquiry’ “] quoting Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 27 n.14 [2d Cir. 2002] ).
As cited in a recent decision, Corwin v. NYC Bike Share, LLC, 238 F.Supp.3d 475 (S.D.N.Y. 2017) “a user’s clicking of a box is not, without more, sufficient to signal their assent to any contract term. The touchstone in most courts’ analysis of the enforceability of clickwrap contracts turns on whether the website provided ‘reasonably conspicuous notice that [users] are about to bind themselves to contract terms’ ” (Specht v. Netscape Communications Corp., 306 F.3d 17, 32 [2d Cir. 2002] [Sotomayor, J.] ). In many cases, this becomes a fact-intensive inquiry because “electronic agreements fall along a spectrum in the degree to which they provide notice, and it is difficult to draw bright-line rules because each user interface differs from others in distinctive ways (Meyer v. Kalanick, 200 F.Supp.3d 408, 420 [S.D.N.Y. 2016] ). In Meyer, a putative class action claiming price-fixing, the district court found that adequate notice was not given to plaintiff of mandatory arbitration when he registered to use Uber. The screen had a hyperlink to the agreement, but plaintiff did not need to click on it to register as a user. Then, after clicking on it, you needed to click further to read the Terms of Service and the arbitration provision was at the bottom of page seven. This was determined to be a “browsewrap” agreement. The Second Circuit, on appeal,[3] determined that the issue was whether the plaintiff was on inquiry notice of the arbitration provision by virtue of the hyperlink on the screen, under California Law, and determined that adequate notice was given. The panel reversed the district court, finding the motion to compel arbitration should have been granted.
The court further notes that on-line agreements may be revised from time to time, so not only must the court determine whether the party seeking to enforce such an agreement has provided the version seen by the other party at the time the contract was made, but whether the court in any seemingly on point case cited actually rendered its decision based on the same version of the agreement (seePlazza v. Airbnb, 289 F.Supp.3d 537 [S.D.N.Y. 2018] [archived computer code for 2009 sign-up screen provided to court, along with screen shots of Terms of Service] ).
In Berkson, supra, Judge Weinstein of the Eastern District of New York, surveying cases from federal courts nationwide, provided a useful set of parameters to guide a court’s inquiry. First, terms of use should not be enforced if a reasonably prudent user would not have had at the very least inquiry notice of the terms of the agreement (Berkson, 97 F.Supp.3d at 401 [citingNguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 [9th Cir. 2014] ). Second, terms should be enforced when a user is encouraged by the design and content of the website and the agreement’s webpage to examine the terms, such as when they are clearly available through a hyperlink. Third terms should not be enforced when they are “buried at the bottom of a webpage or tucked away in obscure corners.” Special attention should be paid to whether the site design brings the consumer’s attention to “material terms that would alter what a reasonable consumer would understand to be her default rights when initiating an online [transaction],” and, in appropriate cases, such terms should not be enforced even when the contract is otherwise enforceable. “When contractual terms as significant as … the right to sue in court are accessible only via a small and distant hyperlink … with text about agreement thereto presented even more obscurely, there is a genuine risk that a fundamental principle of contract formation will be left in the dust: the requirement for a manifestation of mutual assent” (Meyer v. Kalanick, 200 F.Supp.3d at 421-22 [internal quotation marks and citation omitted] ). A broad exculpatory clause waiving liability for negligence would also certainly qualify as a material term and one that alters a contracting party’s commonly-understood rights.
Here, the court finds that Tough Mudder has failed to establish that the webpage, as it existed in 2016 when the plaintiffs registered for the TM Event, provided reasonable notice of the relevant term (the arbitration provision) of the PWCR. In fact, Tough Mudder has failed to set forth sufficiently detailed evidence as to how its on-line registration webpage appeared to the plaintiffs, or other users/registrants, during the relevant time period. In this regard, the court finds that the affidavit by Ms. Best holds little evidentiary value, as she does not set forth the basis of her personal knowledge of Tough Mudder’s on-line registration process at the time the plaintiffs registered, or of her familiarity with the applicable computer generated documents (seeGogos v. Modell’s Sporting Goods, Inc., 87 A.D.3d 248, 253-254, 926 N.Y.S.2d 53 [2011] ). Additionally, absent from her affidavit is any indication that she was even employed by Tough Mudder at the relevant time period.
In addition, the court notes that the purported copies of the plaintiffs’ respective on-line registration forms (screen shots) submitted by Tough Mudder (Exhibit D) are black and white copies of poor quality, the text of which is in an extremely small font size and is barely legible. Tough Mudder has not proffered any color copies of any screen shots depicting its on-line registration process. In addition, the full text of the PWCR, as provided by Tough Mudder, is not a screen shot but a black and white document, consisting of seven pages of single-spaced language, all in the same font and size, with no underlined, hyperlinked or bolded terms. In order to view the “Mediation and Arbitration” clause, the plaintiffs, by using the arrows inside the text box, needed to scroll down significantly beyond what is initially visible, to page four of the seven-page single-spaced PWCR document. The court additionally notes that, as with the entire document, the arbitration provision is neither underlined, bolded nor hyperlinked. Further, since this court has only been provided with a black and white document, not screen shots, it is unable to discern how the subject arbitration clause actually appeared to the user. Indeed, “[i]n the context of web-based contracts, [courts] look to the design and content of the relevant interface to determine if the contract terms were presented to the offeree in a way that would put her [or him] on inquiry notice of such terms” (Starke v. Squaretrade, Inc., 913 F.3d 279, 289-90 [2d Cir. 2019] citing Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 [9th Cir. 2014] and Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 23 [2d Cir. 2002] [where court refused to enforce terms of use that “would have become visible to plaintiffs only if they had scrolled to the next screen”] ). Here, Tough Mudder’s submissions with respect to the “design and content” of its website and the relevant terms of the PWCR, especially the arbitration clause, are woefully inadequate.
The court further notes that the initially visible portion of the on-line text box containing the scrollable PWCR has an all-caps header stating: “ASSUMPTION OF RISK, WAIVER OF LIABILITY, AND INDEMNITY AGREEMENT PARTICIPANTS: READ THIS DOCUMENT CAREFULLY BEFORE ACCEPTING. THIS DOCUMENT HAS LEGAL CONSEQUENCES AND WILL AFFECT YOUR LEGAL RIGHTS AND WILL ELIMINATE YOUR ABILITY TO BRING FUTURE LEGAL ACTIONS.” However, while this header specifically draws the user’s attention to certain specified provisions (i.e., Assumption of Risk, Waiver of Liability and Indemnity) which appear at the beginning of the document (on pages one and three), it makes no reference to the arbitration provision, which appears on page four of the seven-page PWCR document.
Additionally, the court notes that the “Venue and Jurisdiction” clause, which appears on page three of the PWCR states that if “legal action is brought, the appropriate state or federal trial court for the state in which the TM Event is held has the sole and exclusive jurisdiction….” This provision clearly conflicts with the arbitration clause at issue, which mandates that all claims “arising out of [one’s] participation in the TM Event shall be submitted to binding arbitration….” Given that the plaintiffs would have viewed (in the scrollable text box) the “Venue and Jurisdiction” provision first, the court finds it highly unlikely that they would have been placed on inquiry notice of the arbitration provision, which appeared on a subsequent page in the agreement. As noted above, the party seeking to compel arbitration bears the burden of establishing that an agreement to arbitrate exists (see Seneca Ins. Co. v. Secure— Southwest Brokerage, 294 A.D.2d at 212, 741 N.Y.S.2d 690), which Tough Mudder has failed to do. Under the circumstances presented here, the court finds that the arbitration provision was not sufficiently conspicuous to place the plaintiffs on inquiry or constructive notice and, therefore, is not enforceable (seeSpecht v. Netscape Commc’ns Corp., 306 F.3d at 32; Applebaum, 263 F.Supp.3d at 465). Further, due to the conflicting provisions regarding litigation and arbitration, the arbitration provision is void due to ambiguity. Accordingly, Tough Mudder’s motion to stay the action and compel arbitration is denied.
General Obligations Law § 5-326
As to plaintiffs’ argument that the waiver and release provision set forth in the PWCR [Exhibit F Page 3] is invalid pursuant to GOL § 5-326, the court agrees. That statute protects consumers from the effect of form releases printed on membership applications and similar documents when such releases are offered in connection with the use of a “place of amusement or recreation” for which a fee is paid (GOL § 5-326; seeRogowicki v. Troser Mgt., 212 A.D.2d 1035, 623 N.Y.S.2d 47 [1995]; Blanc v. Windham Mtn. Club, 115 Misc.2d 404, 454 N.Y.S.2d 383 [1982], affd 92 A.D.2d 529, 459 N.Y.S.2d 447 [1983] ). The terms of this statute apply to the plaintiffs herein, who paid a fee to use Tough Mudder’s obstacle course, which, contrary to Tough Mudder’s assertion, is a place of recreation (seeLeftow v. Kutsher’s Country Club Corp., 270 A.D.2d 233, 234, 705 N.Y.S.2d 380 [2000] ). Indeed, the nature of the TM Event as described by Tough Mudder — a rigorous, athletic competition requiring proper training — is comparable to the other activities, such as horseback riding, auto racing, cycling and skiing, which have been held to be covered by GOL § 5-326. Furthermore, Tough Mudder’s assertion that, unlike the TM Event, such activities are “relaxed and undemanding” and “do not necessitate any research or physical preparation” is an inaccurate and absurd distinction. Thus, the PWCR’s waiver provision, waiving defendants’ liability for “ordinary negligence” violates GOL § 5-236 and is therefore void (seeGarnett v. Strike Holdings LLC, 64 A.D.3d 419, 882 N.Y.S.2d 115 [2009] [applying § 5— 326 where plaintiff paid a fee to use the recreational facility]; Alibey v. Tough Mudder Inc., 2018 WL 5298473, at *2 [Sup.Ct., Kings County, Oct. 24, 2018]; Hansen v. Tough Mudder, Inc., [Sup Ct Kings Co. 2018, Ind. 515072/15] ).
However, as Tough Mudder correctly argues, the unenforceable provisions of the PWCR do not nullify the entire agreement. Where an agreement consists partially of an unlawful objective, “the court may sever the illegal aspect and enforce the legal one, so long as the illegal aspects are incidental to the legal aspects and are not the main objective of the agreement.” (Mark Hotel LLC v. Madison Seventy-Seventh LLC, 61 A.D.3d 140, 143, 872 N.Y.S.2d 111 [2009] ). “[W]hether the provisions of a contract are severable depends largely upon the intent of the parties as reflected in the language they employ and the particular circumstantial milieu in which the agreement came into being.” (Matter of Wilson’s Estate, 50 N.Y.2d 59, 65, 427 N.Y.S.2d 977, 405 N.E.2d 220 [1980] ).
Here, the waiver of liability provision in the PWCR releasing Tough Mudder from liability, as well as the arbitration clause, are severable from the remainder of the PWCR agreement on the ground that the unenforceable provisions are incidental to the legal aspects and not the main objective of the agreement. Further, the severability provision in the PWCR reflects the intent of the parties that the legal provisions of the agreement be severed from any provisions determined to be void and unenforceable.
Conclusion
For the reasons state above, Tough Mudder’s motion to compel arbitration and stay the action is denied.
The parties are directed to appear on May 1, 2019 in the Intake Part for a Preliminary Conference.
The foregoing constitutes the decision and order of the court.
Notes:
[1] It seems defendants conduct similar events all over the United States. There are two other actions pending in Kings County Supreme Court against defendants, and in both actions, defendants motions to compel arbitration were denied, albeit on different grounds.
[2] In any event, as the court states in Meyer v. Uber Tech., Inc., 868 F.3d 66, 76 (2d Cir. 2017).: Classification of web-based contracts alone, however, does not resolve the notice inquiry. See Juliet M. Moringiello and William L. Reynolds, From Lord Coke to Internet Privacy: The Past, Present, and Future of the Law of Electronic Contracting, 72 Md. L.Rev. 452, 466 (2013) (“Whether terms are classified as clickwrap says little about whether the offeree had notice of them.”). Insofar as it turns on the reasonableness of notice, the enforceability of a web based agreement is clearly a fact-intensive inquiry. SeeSchnabel, 697 F.3d at 124.
[3] Meyer v. Uber Techs., Inc., 868 F.3d 66 (2017)
Do Releases Work? Should I be using a Release in my Business? Will my customers be upset if I make them sign a release?
Posted: April 30, 2019 Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest Leave a commentThese and many other questions are answered in my book Outdoor Recreation Risk Management, Insurance and Law.
Releases, (or as some people incorrectly call them waivers) are a legal agreement that in advance of any possible injury identifies who will pay for what. Releases can and to stop lawsuits.
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Table of Contents
Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2 U.S. Legal System and Legal Research
Chapter 3 Risk 25
Chapter 4 Risk, Accidents, and Litigation: Why People Sue
Chapter 5 Law 57
Chapter 6 Statutes that Affect Outdoor Recreation
Chapter 7 Pre-injury Contracts to Prevent Litigation: Releases
Chapter 8 Defenses to Claims
Chapter 9 Minors
Chapter 10 Skiing and Ski Areas
Chapter 11 Other Commercial Recreational Activities
Chapter 12 Water Sports, Paddlesports, and water-based activities
Chapter 13 Rental Programs
Chapter 14 Insurance
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Posted: April 16, 2019 Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Camping, Climbing, Climbing Wall, Contract, Criminal Liability, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, How, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Accidents, Angry Guest, Dealing with Claims, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Injured Guest, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, RecreationLaw, Risk Management, risk management plan, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Upset Guest Leave a commentAn injured guest is everyone’s business owner’s nightmare. What happened, how do you make sure it does not happen again, what can you do to help the guest, can you help the guests are just some of the questions that might be keeping you up at night.
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Table of Contents
Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2 U.S. Legal System and Legal Research
Chapter 3 Risk 25
Chapter 4 Risk, Accidents, and Litigation: Why People Sue
Chapter 5 Law 57
Chapter 6 Statutes that Affect Outdoor Recreation
Chapter 7 Pre-injury Contracts to Prevent Litigation: Releases
Chapter 8 Defenses to Claims
Chapter 9 Minors
Chapter 10 Skiing and Ski Areas
Chapter 11 Other Commercial Recreational Activities
Chapter 12 Water Sports, Paddlesports, and water-based activities
Chapter 13 Rental Programs
Chapter 14 Insurance
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What is a Risk Management Plan and What do You Need in Yours?
Posted: April 11, 2019 Filed under: Activity / Sport / Recreation, Adventure Travel, Assumption of the Risk, Avalanche, Camping, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, First Aid, Health Club, Indoor Recreation Center, Jurisdiction and Venue (Forum Selection), Legal Case, Medical, Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Playground, Racing, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Search and Rescue (SAR), Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Triathlon, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, OR Textbook, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, risk management plan, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Textbook, Understanding, Understanding Insurance, Understanding Risk Management, Whitewater Rafting, zip line Leave a commentEveryone has told you, you need a risk management plan. A plan to follow if you have
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Table of Contents
Chapter 1 Outdoor Recreation Risk Management, Law, and Insurance: An Overview
Chapter 2 U.S. Legal System and Legal Research
Chapter 3 Risk 25
Chapter 4 Risk, Accidents, and Litigation: Why People Sue
Chapter 5 Law 57
Chapter 6 Statutes that Affect Outdoor Recreation
Chapter 7 PreInjury Contracts to Prevent Litigation: Releases
Chapter 8 Defenses to Claims
Chapter 9 Minors
Chapter 10 Skiing and Ski Areas
Chapter 11 Other Commercial Recreational Activities
Chapter 12 Water Sports, Paddlesports, and water-based activities
Chapter 13 Rental Programs
Chapter 14 Insurance
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Need a Handy Reference Guide to Understand your Insurance Policy?
Posted: April 2, 2019 Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Challenge or Ropes Course, Climbing, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, Adventure travel, and Law, assumption of the risk, camping, Case Analysis, Challenge or Ropes Course, Climbing, Climbing Wall, Contract, Cycling, Donkeys, Equine Activities (Horses, first aid, General Liability Insurance, Good Samaritan Statutes, Guide, Hang gliding, http://www.rec-law.us/ORLawTextbook, Insurance, Insurance policy, James H. Moss, James H. Moss J.D., Jim Moss, Jurisdiction and Venue (Forum Selection), Legal Case, Liability insurance, Medical, Mountain biking, Mountaineering, Mules) & Animals, Negligence, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Paddlesports, Paragliding, Recreational Use Statute, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock climbing, Sea Kayaking, ski area, Ski Area Statutes, Skiing / Snow Boarding, Skydiving, swimming, Whitewater Rafting, zip line Leave a commentThis 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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Need a Handy Reference Guide to Understand your Insurance Policy?
Posted: May 28, 2018 Filed under: Adventure Travel, Assumption of the Risk, Avalanche, Challenge or Ropes Course, Climbing, Contract, Cycling, Equine Activities (Horses, Donkeys, Mules) & Animals, Health Club, Indoor Recreation Center, Insurance, Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Mountain Biking, Mountaineering, Paddlesports, Racing, Release (pre-injury contract not to sue), Risk Management, Rivers and Waterways, Rock Climbing, Scuba Diving, Sea Kayaking, Ski Area, Skier v. Skier, Skiing / Snow Boarding, Skydiving, Paragliding, Hang gliding, Snow Tubing, Sports, Summer Camp, Swimming, Whitewater Rafting, Youth Camps, Zip Line | Tags: #ORLawTextbook, #ORRiskManagment, #OutdoorRecreationRiskManagementInsurance&Law, #OutdoorRecreationTextbook, @SagamorePub, and Law, General Liability Insurance, Guide, http://www.rec-law.us/ORLawTextbook, Insurance policy, James H. Moss J.D., Jim Moss, Liability insurance, Outdoor Recreation Insurance, Outdoor Recreation Law, Outdoor Recreation Risk Management, Outfitter, Risk Management Leave a commentThis 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
Posted: April 8, 2018 Filed under: Legal Case, Racing, South Carolina | Tags: admiralty, Admiralty Law, Boat, BRAIN, captain, citation omitted, Concussion, crew members, Duty of care, emotional, experienced, Guest, gybe, headaches, hit, lookout, maneuver, medication, opined, pain, passenger, present value, safe, Sailboat, Sailboat Race, Sailing, sheet, sit, sitting, suffering, Symptoms, traumatic, vessel Leave a commentRay 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.
Posted: March 12, 2018 Filed under: Assumption of the Risk, Florida, Montana, Release (pre-injury contract not to sue), Triathlon | Tags: affirmative defenses, Black’s Law Dictionary, box, Causation, Check Box, Choice of Law, concurrent tortfeasors, decedent, designated, fault, health care providers, last act, Lawsuit, material fact, medical attention, movant's, necessary to complete, nonmoving party, off-campus, online, printout, registered, Registration, Release, releases, Sanctioning, sole cause, tortfeasor, Triathlon, undis-puted, USA Triathlon, usage, Void, Voidable, waived, willful Leave a commentThis 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
Posted: February 20, 2018 Filed under: Assumption of the Risk, Florida, Legal Case, Release (pre-injury contract not to sue), Triathlon, Uncategorized | Tags: affirmative defenses, Black’s Law Dictionary, box, Causation, Check Box, Choice of Law, concurrent tortfeasors, decedent, designated, fault, health care providers, Jurisdiction, last act, Lawsuit, material fact, medical attention, movant's, necessary to complete, nonmoving party, off-campus, online, printout, registered, Registration, Release, Sanctioning, Sanctioning Body, sole cause, sponsor, Summary judgment, tortfeasor, undisputed, usage, waived, willful 1 CommentMoore 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
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
Posted: June 13, 2017 Filed under: Legal Case, Release (pre-injury contract not to sue), Triathlon, Virginia | Tags: altered, bottom, by-law, common carrier's, condominium, constructive fraud, Dangerous Condition, Duty to Warn, implicated, Indemnification, Lake, matter of law, Misrepresentation, ownership interest, personal injury, pre-injury, property damage, Public Policy, railroad, railway, release agreement, subcontractor's, swimming, telephone, train, Triathlon, universally, valid contract, Void Leave a commentHiett 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.