A federal district court in Massachusetts upholds indemnification clause in a release.

All prior decisions have found that indemnification clauses in releases are not effective because it creates a conflict of interest within a family.

Angelo, v. USA Triathlon, 2014 U.S. Dist. LEXIS 131759

State: Massachusetts, United States District Court for the District of Massachusetts

Plaintiff: Cheryl Angelo, Personal Representative of the Estate of Richard Angelo,

Defendant: USA Triathlon

Plaintiff Claims: wrongful death, conscious pain and suffering, and negligent infliction of emotional distress

Defendant Defenses: Release and indemnification

Holding: not a final ruling

Year: 2014

I cannot determine if this case is over, however, the ruling is quite interesting and worth the risk in having to reverse this post.

The deceased joined the USA Triathlon (USAT) and in doing so signed a Waiver and Release of Liability, Assumption of Risk and Indemnity Agreement. The deceased signed the document electronically. The deceased registered online for the National Age Group Championship in Vermont and again signed an “indemnity agreement” electronically. The two releases were identical.

The deceased died during the triathlon during the swim portion of the event. The deceased wife and personal representative of his estate brought this lawsuit in Federal District Court of Massachusetts.

The defendant USAT filed a motion for summary judgment, and this review is of the court’s ruling on that motion.

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

The motion for Summary Judgment was a partial motion on the counterclaim of the defendant based on the indemnity provisions in the two releases.

The court refers to the releases as “the indemnity agreements” which create a lot of confusion when reading the decision. The court first examined Massachusetts law relating to releases.

Under Massachusetts law, “[c]ontracts of indemnity are to be fairly and reasonably construed in order to ascertain the intention of the parties and to effectuate the purpose sought to be accomplished.”

And then Massachusetts law on indemnity agreements.

Indemnity contracts that exempt a party from liability arising from their own ordinary negligence are not illegal. Further, contracts of indemnity can survive a decedent’s death and become an obligation of a decedent’s estate.

The language in the indemnification agreement was deemed by the court to be broad. The plaintiff argued the release was ambiguous as to who the release applied to. However, the court disagreed finding the release:

…clearly states that “I . . . agree to Indemnify, Defend and Hold Harmless” the released parties from liability “of any kind or nature . . . which may arise out of, result from, or relate to my participation in the Event.” Both the scope of the indemnity and the party bound by the agreement are clear and unambiguous.

The court then looked at how the release affected the specific claims of the plaintiff. The first count in the complaint was based on wrongful death, and the third was for wrongful death because of gross negligence of the defendant and included a claim for punitive damages.

The court looked at the damages that might be recoverable under these two theories because how the money was identified would determine if the money could be recovered on the indemnification claim.

That means the indemnification claim is against the person who signed the release or in this case their estate. The deceased could not pledge his wife’s assets to the indemnification because he could not sign for her, only his assets. “The decedent, while having authority to bind his estate, lacked authority to bind his surviving family members who did not sign the indemnity agreements and are not bound thereby.” The wrongful-death claim money is not an asset of the state; it is held by the personal representative on behalf of the heirs to the estate. So any money recovered under the wrongful-death statute or claim would not be subject to indemnification.

That is because “w]rongful death is not, in any traditional sense, a claim of the decedent.”

Accordingly, to satisfy the indemnity obligation, USAT may look to the assets of the decedent’s estate. (noting that a contract of indemnity agreed to by a decedent became an obligation of the decedent’s estate). USAT may not, however, look to any recovery on the wrongful death claim for satisfaction, as that recovery would be held in trust for the statutory beneficiaries and would not become an asset of the estate.

Then the court looked to see if the release would stop gross negligence claims. The court found no “controlling authority” on this issue, but held that it would not stop a claim for gross negligence based on the law of appellate decisions in the state.

In the closely analogous context of releases, the Massachusetts Appeals Court has held that, for reasons of public policy, a release would not be enforced to exempt a party from liability for grossly negligent conduct, though otherwise effective against ordinary negligence.

So the court found the release would stop the negligence claims and dismissed count one of the complaints and found that the release would not stop a claim for gross negligence and allowed count three to proceed.

However, the court also stated the motion was denied if the indemnification provision in the release attempted to be satisfied from the wrongful-death proceeds. Alternatively, the indemnification clause would apply to any money’s received for any successful claim other than wrongful death.

The second claim was for conscious pain and suffering of the decedent. Under Massachusetts law, conscious pain and suffering is a claim of the decedent, brought on behalf of the decedent by his estate. The release barred this claim and would allow the defendant to be indemnified by it. “By executing the two agreements, the decedent both released his claim of conscious pain and suffering caused by USAT’s negligence and indemnified USAT for any losses occasioned by such a claim.”

Putting aside the release for a moment, if the personal representative of the decedent received any recovery for his conscious suffering, USAT would be able to reach that recovery to satisfy the decedent’s indemnity obligation. Thus, USAT’s Motion for Summary Judgment is ALLOWED insofar as the claim for conscious suffering caused by USAT’s negligence was both released and indemnified.

The fourth count was for Negligent Infliction of Emotional Distress, which was inflicted on the wife of the decedent who was present at the race. The original complaint was only brought in the name of the personal representative, not her name individually. Consequently, the court agreed to allow the plaintiff to amend her complaint to bring this claim.

However, the court also found that any money received by the plaintiff on her claim for negligent infliction of emotional distress would also be subject to the indemnification claims of the defendant.

The indemnity language in those agreements is broad enough to reach a claim for negligent infliction of emotional distress as a claim “aris[ing] out of” the decedent’s participation in the triathlon. Thus, USAT is entitled to indemnification on any losses resulting from such a claim.

However, the indemnification claim was only applicable to any money paid on this claim to the decedent, not the decedent’s wife. Again, the decedent could not pledge his wife’s assets by his signature.

The court looked at the defendants claim that the defense costs of the action should be paid based on the indemnification clause. The court agreed with the defendant’s argument for the costs to.

The language of the indemnity agreements does clearly obligate the decedent’s estate to make USAT whole on these losses. As with the claims discussed above, USAT may seek indemnity from the decedent’s estate for their defense costs, which predate this Motion as well as prospective costs to the extent that the plaintiff chooses to proceed on at least one claim, which is subject to indemnification.

So any money the lawsuit received that was payable to the estate was subject to the indemnification clause in the release, and that money could be received based on money paid or the cost of defending the lawsuit and recovering the money. Money held in trust, based on a wrongful-death claim was not subject to indemnification.

The release blocked all claims of the decedent and any claims of the wife that were derivative of the decedent’s claims.

Effectively, the case is over because there is no way to get any money, that would not be subject to indemnification. Then any other asset of the estate would be subject to the indemnification due to the cost of defending the lawsuit.

So Now What?

The reasoning for the motion for summary judgment is simple. If the defendant is able to act on the indemnification, any money received by the plaintiff will just turn around and go back to the defendant. Consequently, the damages are reduced to about zero and the chances of settling sky rocket.

However, the importance of the motion is the court upheld the indemnification clause! Normally courts through these out as being a violation of the doctrine or parental immunity, or because they create a conflict of interest between members of a family.

I have never seen an indemnification clause upheld in a recreational release.

See Indemnification agreements? What are you signing?

What do you think? Leave a comment.

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Angelo, v. USA Triathlon, 2014 U.S. Dist. LEXIS 131759

Angelo, v. USA Triathlon, 2014 U.S. Dist. LEXIS 131759

Cheryl Angelo, Personal Representative of the Estate of Richard Angelo, Plaintiff, v. USA Triathlon, Defendant.

Civil Action No. 13-12177-LTS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

2014 U.S. Dist. LEXIS 131759

September 18, 2014, Decided

September 19, 2014, Filed

COUNSEL: [*1] For Cheryl Angelo, Plaintiff: Alan L. Cantor, LEAD ATTORNEY, Joseph A. Swartz, Peter J. Towne, Swartz & Swartz, Boston, MA.

For USA TRIATHLON, Defendant: Douglas L. Fox, Shumway, Giguere, Fox PC, Worcester, MA.

JUDGES: Leo T. Sorokin, United States District Judge.

OPINION BY: Leo T. Sorokin

OPINION

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

SOROKIN, D.J.

This action arises from a tragic set of facts in which Richard Angelo died while participating in the swim portion of a triathlon organized by the defendant, USA Triathlon (“USAT”). Plaintiff Cheryl Angelo (“the plaintiff”), as personal representative of Richard Angelo (“Angelo” or “the decedent”), has brought claims of wrongful death, conscious pain and suffering, and negligent infliction of emotional distress. USAT has counterclaimed for indemnity against any liability and legal costs associated with this action pursuant to indemnity agreements executed by the decedent prior to his participation in the triathlon. USAT has now moved for partial summary judgment on its claim for indemnity. Doc. No. 18. The plaintiff has opposed the Motion. Doc. No. 19. For the reasons stated below, USAT’s Motion is ALLOWED IN PART and DENIED IN PART.

I. [*2] STATEMENT OF FACTS

The following facts are stated in the light most favorable to the plaintiff as the nonmoving party, although the key facts for the purposes of this motion are not disputed. Angelo was a member of USAT since, at the latest, 2011. Doc. No. 18-1 at 1 ¶ 3. When Angelo last renewed his membership on August 12, 2011, he agreed to and electronically signed a “Waiver and Release of Liability, Assumption of Risk and Indemnity Agreement.” Id. at 1 ¶ 3, 4. That agreement only required the member to execute the document, and, accordingly, the plaintiff did not sign the form. Id. at 4-5. That document contained a provision that, in its entirety, reads as follows:

4. I hereby Release, Waive and Covenant Not to Sue, and further agree to Indemnify, Defend and Hold Harmless the following parties: USAT, the Event Organizers and Promoters, Race Directors, Sponsors, Advertisers, Host Cities, Local Organizing Committees, Venues and Property Owners upon which the Event takes place, Law Enforcement Agencies and other Public Entities providing support for the Event, and each of their respective parent, subsidiary and affiliated companies, officers, directors, partners, shareholders, members, agents, employees [*3] and volunteers (Individually and Collectively, the “Released Parties” or “Event Organizers”), with respect to any liability, claim(s), demand(s), cause(s) of action, damage(s), loss or expense (including court costs and reasonable attorneys [sic] fees) of any kind or nature (“Liability”) which may arise out of, result from, or relate to my participation in the Event, including claims for Liability caused in whole or in part by the negligence of the Released Parties. I further agree that if, despite this Agreement, I, or anyone on my behalf, makes a claim for Liability against any of the Released Parties, I 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. at 4.

USAT arranged to hold its National Age Group Championship on August 18, 2012, in Burlington, Vermont. Id. at 2 ¶ 5. On February 17, 2012, Angelo registered for the championship and, as part of his registration, electronically signed an indemnity agreement identical to the one excerpted above. Id. at 2 ¶ 6. As with the prior agreement, only Angelo as the participant was required to, and in fact did, sign the form. Doc. Nos. 18-1 at 33-34, 19-2 [*4] at 3. Angelo competed in that triathlon and died during his participation in the swim portion of that event or shortly thereafter. Doc. No. 18-2 at 11-12.

The plaintiff, the decedent’s wife and the personal representative of his estate, then brought this action in Essex Superior Court, alleging wrongful death, conscious pain and suffering by the decedent, gross negligence resulting in the decedent’s death, and negligent infliction of emotional distress suffered by the plaintiff, who was present at the site of the race. Doc. No. 6 at 12-16. USAT subsequently removed the action to this Court. Doc. No. 1.

II. STANDARD OF REVIEW

Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Once a party “has properly supported its motion for summary judgment, the burden shifts to the non-moving party, who ‘may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial.'” Barbour v. Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). The Court is “obliged to []view the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences [*5] in the nonmoving party’s favor.” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). Even so, the Court is to ignore “conclusory allegations, improbable inferences, and unsupported speculation.” Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir. 2008) (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). A court may enter summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

III. DISCUSSION

USAT has moved for partial summary judgment on their counterclaim for indemnity.1 USAT asserts that the decedent’s execution of the two release and indemnity agreements (“the indemnity agreements”) released or indemnified, or both, all claims that arise from his participation in the National Age Group Championship, including all claims brought by the plaintiff in this action. The plaintiff counters that the indemnity agreements could not function to release her claims for wrongful death or negligent infliction of emotional distress, and that an indemnity agreement is not enforceable insofar as it exempts the indemnitee from liability for its own grossly negligent conduct.

1 The Court understands this motion for summary judgment to be limited to the scope of the release and indemnity agreement [*6] and its application to the plaintiff’s claims as raised in the Complaint and as amplified in the motion papers. Despite USAT’s argument to the contrary, the Court does not believe this motion to be an appropriate vehicle to address the substantive merits of the plaintiff’s pleadings or claims.

Under Massachusetts law,2 “[c]ontracts of indemnity are to be fairly and reasonably construed in order to ascertain the intention of the parties and to effectuate the purpose sought to be accomplished.” Post v. Belmont Country Club, Inc., 60 Mass. App. Ct. 645, 805 N.E.2d 63, 69 (Mass. App. Ct. 2004) (quoting Shea v. Bay State Gas Co., 383 Mass. 218, 418 N.E.2d 597, 600 (Mass. 1981)). Indemnity contracts that exempt a party from liability arising from their own ordinary negligence are not illegal. Id. at 70. Further, contracts of indemnity can survive a decedent’s death and become an obligation of a decedent’s estate. Id. at 71.

2 The parties do not contend that the law of any other state applies.

Here, the language in the indemnity provision is broad. The plaintiff argues, briefly, that the indemnity agreements are ambiguous as to who is bound by the agreements. The Court disagrees. The agreement clearly states that “I . . . agree to Indemnify, Defend and Hold Harmless” the released parties from liability “of any kind or nature . . . which may arise out of, result from, or relate to my participation [*7] in the Event.” Doc. No. 18-1 at 4. By the plain language of the provision, the signatory of the agreement agreed to indemnify USAT for any losses arising from his participation in the triathlon, including losses and damages associated with lawsuits arising from his participation. See Post, 805 N.E.2d at 70. Both the scope of the indemnity and the party bound by the agreement are clear and unambiguous. A close examination is required, however, to ascertain the applicability of the provision to the specific claims raised and the sources available to satisfy the indemnity.

A. Counts 1 and 3: Wrongful Death

The first count in the plaintiff’s Complaint alleges wrongful death due to USAT’s negligence. The third count alleges wrongful death due to USAT’s gross negligence and seeks punitive damages. Under Massachusetts law, an action for wrongful death is “brought by a personal representative on behalf of the designated categories of beneficiaries” set forth by statute. Gaudette v. Webb, 362 Mass. 60, 284 N.E.2d 222, 229 (Mass. 1972); see Mass. Gen. Laws ch. 229, §§ 1, 2. “The money recovered upon a wrongful death claim is not a general asset of the probate estate, but constitutes a statutory trust fund, held by the administratrix as trustee for distribution to the statutory beneficiaries.”3 Marco v. Green, 415 Mass. 732, 615 N.E.2d 928, 932 (Mass. 1993) (quoting Sullivan v. Goulette, 344 Mass. 307, 182 N.E.2d 519, 523 (Mass. 1962)). These [*8] aspects of Massachusetts law have led another judge of this Court to the conclusion that “[w]rongful death is not, in any traditional sense, a claim of the decedent.” Chung v. StudentCity.com, Inc., Civ. A. 10-10943-RWZ, 2011 U.S. Dist. LEXIS 102370, 2011 WL 4074297, at *2 (D. Mass. Sept. 9, 2011).

3 The Massachusetts Legislature has created limited statutory exceptions whereby the recovery on a wrongful death claim may be reached to pay certain specified expenses. Mass. Gen. Laws ch. 229, § 6A. None of those exceptions are implicated by the present Motion. See id.

As stated above, the indemnity agreements signed by the decedent, by their terms, clearly were intended to indemnify losses arising from an action for wrongful death as a claim “aris[ing] out of” the decedent’s participation in the triathlon. Thus, USAT is entitled to indemnity on losses resulting from that claim. That does not end the matter, however, because the parties raise the question of where USAT may look in order to satisfy the indemnity obligation. The decedent, while having authority to bind his estate, see Post, 805 N.E.2d at 71, lacked authority to bind his surviving family members who did not sign the indemnity agreements and are not bound thereby, see Chung, 2011 U.S. Dist. LEXIS 102370, 2011 WL 4074297, at *2. Accordingly, to satisfy the indemnity obligation, USAT may look to the assets of the decedent’s estate. See [*9] Post, 805 N.E.2d at 71 (noting that a contract of indemnity agreed to by a decedent became an obligation of the decedent’s estate). USAT may not, however, look to any recovery on the wrongful death claim for satisfaction, as that recovery would be held in trust for the statutory beneficiaries and would not become an asset of the estate. See Estate of Bogomolsky v. Estate of Furlong, Civ. A. 14-12463-FDS, 2014 U.S. Dist. LEXIS 86998, 2014 WL 2945927, at *2 (D. Mass. June 26, 2014).4 USAT concedes this outcome as to the plaintiff’s negligent infliction of emotional distress claim, Doc. No. 20 at 11-12, and given the structure of wrongful death claims in Massachusetts, there is no reason for a different result as to the wrongful death claims.5

4 In Estate of Bogomolsky, a recent decision of another session of this Court, Judge Saylor came to the same conclusion, finding that a judgment creditor of a decedent’s estate would not be able to restrain the proceeds of an insurance policy distributed pursuant to the wrongful death statute, as the proceeds of the policy were held in trust for the decedent’s next of kin and did not belong to the decedent’s estate. Estate of Bogomolsky, 2014 U.S. Dist. LEXIS 86998, 2014 WL 2945927, at *2.

5 While the plaintiff notes that the Massachusetts Appeals Court has reserved the question of whether an indemnification provision would be [*10] enforced to effectively release the claims of people who were not signatories of such an agreement, see Post, 805 N.E.2d at 70-71, this case, as in Post, does not present that circumstance, as the indemnity agreements in this case do not purport to extinguish the plaintiff’s right to bring her claims nor her right to recover on those claims.

Count three of the plaintiff’s Complaint, alleging that the decedent’s death was a result of USAT’s gross negligence, raises the issue of whether Massachusetts courts would enforce an indemnity contract to the extent it functioned to indemnify a party’s own gross negligence. The Court has uncovered no controlling authority from the Supreme Judicial Court of Massachusetts on this issue, nor any case of the Massachusetts Appeals Court on point. In such a case, “[w]here the state’s highest court has not definitively weighed in, a federal court applying state law ‘may consider analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand.'” Janney Montgomery Scott LLC v. Tobin, 571 F.3d 162, 164 (1st Cir. 2009) (quoting N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 38 (1st Cir. 2001)).

In the closely analogous context of releases, the Massachusetts Appeals Court has held that, for reasons of public policy, [*11] a release would not be enforced to exempt a party from liability for grossly negligent conduct, though otherwise effective against ordinary negligence. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 687 N.E.2d 1263, 1265 (Mass. App. Ct. 1997). The Supreme Judicial Court, although not adopting that holding, has noted that public policy reasons exist for treating ordinary negligence differently from gross negligence when enforcing releases. Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 748 n.12 (Mass. 2002). Finally, Judge Saylor of this Court, examining this caselaw, has concluded that the Supreme Judicial Court would not enforce an indemnity agreement to the extent it provided for indemnification of a party’s own gross negligence. CSX Transp., Inc. v. Mass. Bay Transp. Auth., 697 F. Supp. 2d 213, 227 (D. Mass. 2010).

This Court, having studied the caselaw, agrees with and reaches the same conclusion as Judge Saylor: specifically that Massachusetts courts would not enforce an indemnity provision insofar as it relieved a party from liability stemming from its own gross negligence. Thus, the indemnity agreements executed by the decedent are not enforceable to the extent they would require the decedent’s estate to indemnify losses arising from USAT’s grossly negligent conduct.6

6 This conclusion would gain significance if the plaintiff were to be awarded punitive damages owing to USAT’s alleged gross negligence. Punitive damages [*12] awarded under the wrongful death statute, unlike compensatory damages under that statute, are considered general assets of the decedent’s estate. Burt v. Meyer, 400 Mass. 185, 508 N.E.2d 598, 601-02 (Mass. 1987). Any punitive damages, however, could not be reached in satisfaction of the indemnity obligation because gross negligence or more culpable conduct is the predicate upon which an award of punitive damages is based under the statute. See Mass. Gen. Laws ch. 229, § 2.

Accordingly, USAT’s Motion for Summary Judgment as to the plaintiff’s claims of wrongful death is ALLOWED insofar as it seeks indemnity from the decedent’s estate for USAT’s allegedly negligent conduct. The Motion is DENIED insofar as it seeks to satisfy the indemnity obligation from any amounts recovered on the wrongful death claim and insofar as the agreement would require the decedent’s estate to indemnify liability arising from USAT’s grossly negligent conduct.

B. Count 2: Conscious Pain and Suffering

The second count of the plaintiff’s Complaint alleges that USAT’s negligence caused the decedent’s conscious pain and suffering. Under Massachusetts law, a claim for conscious pain and suffering is a claim of the decedent, which may be brought on the decedent’s behalf by his or her personal representative. [*13] Gaudette, 284 N.E.2d at 224-25; see Mass. Gen. Laws ch. 229, § 6. Any recovery on such a claim is held as an asset of the decedent’s estate. Mass. Gen. Laws ch. 229, § 6. By executing the two agreements, the decedent both released his claim of conscious pain and suffering caused by USAT’s negligence and indemnified USAT for any losses occasioned by such a claim. Putting aside the release for a moment, if the personal representative of the decedent received any recovery for his conscious suffering, USAT would be able to reach that recovery to satisfy the decedent’s indemnity obligation. See Estate of Bogomolsky, 2014 U.S. Dist. LEXIS 86998, 2014 WL 2945927, at *2. Thus, USAT’s Motion for Summary Judgment is ALLOWED insofar as the claim for conscious suffering caused by USAT’s negligence was both released and indemnified.

In response to this argument, however, the plaintiff has stated her intent to proceed on the conscious suffering count only on a theory of gross negligence, and not to proceed upon ordinary negligence. As noted above, both the release and the indemnity provisions of the agreements are unenforceable to exempt USAT from liability for their own grossly negligent conduct. See CSX, 697 F. Supp. 2d at 227; Zavras, 687 N.E.2d at 1265. Thus, insofar as the plaintiff chooses to proceed on the conscious pain and suffering count only on a theory of gross negligence, USAT’s Motion for Summary [*14] Judgment is DENIED. If she chooses to so proceed, the plaintiff shall amend her Complaint accordingly.

C. Count 4: Negligent Infliction of Emotional Distress

The fourth and final count of the plaintiff’s Complaint alleges USAT’s negligent infliction of emotional distress on the plaintiff, who was present at the race venue. As an initial matter, the plaintiff, as currently denominated in the Complaint, only brings claims as personal representative of the estate of the decedent. Negligent infliction of emotional distress, however, alleges a harm directly against the plaintiff in her individual capacity, see Cimino v. Milford Keg, Inc., 385 Mass. 323, 431 N.E.2d 920, 927 (Mass. 1982), and thus cannot be brought in a representative capacity.

In response, the plaintiff has indicated her intent to amend her Complaint to bring this claim in her individual capacity. The Court will allow the amendment, as it is not futile in light of the Court’s rulings on the indemnity agreements. The indemnity language in those agreements is broad enough to reach a claim for negligent infliction of emotional distress as a claim “aris[ing] out of” the decedent’s participation in the triathlon. Thus, USAT is entitled to indemnification on any losses resulting from such a claim. As conceded by [*15] USAT, however, any recovery on the emotional distress claim would belong to the plaintiff individually, and thus USAT would not be able to use that recovery to satisfy the indemnity and may look only to the estate of the decedent. Doc. No. 20 at 11-12. Accordingly, the plaintiff may so amend her Complaint to perfect her claim of negligent infliction of emotional distress.

D. Defense Costs

USAT also claims an entitlement to defense costs arising from the provisions in the indemnity agreements obligating the signatory to defend and hold harmless USAT. The language of the indemnity agreements does clearly obligate the decedent’s estate to make USAT whole on these losses. As with the claims discussed above, USAT may seek indemnity from the decedent’s estate for their defense costs which predate this Motion as well as prospective costs to the extent that the plaintiff chooses to proceed on at least one claim which is subject to indemnification.7 See Mt. Airy Ins. Co. v. Greenbaum, 127 F.3d 15, 19 (1st Cir. 1997) (“[U]nder Massachusetts law, if an insurer has a duty to defend one count of a complaint, it must defend them all.” (citing Aetna Cas. & Surety Co. v. Continental Cas. Co., 413 Mass. 730, 604 N.E.2d 30, 32 n.1 (Mass. 1992)).

7 Should the plaintiff decide to proceed only on those claims that, following the reasoning of this Order, are not subject to the [*16] indemnity obligation, the parties may request leave to brief the issue of USAT’s entitlement to prospective defense costs at that time.

IV. CONCLUSION

In conclusion, USAT’s Motion for Summary Judgment, Doc. No. 18, is ALLOWED as set forth above insofar as USAT seeks to establish the release of the conscious pain and suffering claim and indemnity from the decedent’s estate for the claims wrongful death, conscious pain and suffering, and negligent infliction of emotional distress caused by USAT’s ordinary negligence. USAT’s Motion is DENIED, however, insofar as it argues for release of or indemnity on any claims caused by their own gross negligence and insofar as it seeks satisfaction of the indemnity obligation from any recovery on the wrongful death or emotional distress claims. The plaintiff shall amend the Complaint within seven days to more clearly specify the capacity in which each claim is brought and add the allegations of gross negligence, both as described in the plaintiff’s papers. The defendant shall respond to the Amended Complaint within seven days of its filing. The Court will hold a Rule 16 conference on October 21, 2014 at 1 p.m.

SO ORDERED.

/s/ Leo T. Sorokin

Leo T. Sorokin

United [*17] States District Judge


Chapple, Et Al., v. Ultrafit Usa, Inc., Et Al., 2002 Ohio 1292; 2002 Ohio App. LEXIS 1366

Chapple, Et Al., v. Ultrafit USA, Inc., Et Al., 2002 Ohio 1292; 2002 Ohio App. LEXIS 1366

Roger Chapple, Et Al., Plaintiffs-Appellants -vs- Ultrafit Usa, Inc., Et Al., Defendants-Appellees

Case No. 01-CAE-08037

COURT OF APPEALS OF OHIO, FIFTH APPELLATE DISTRICT, DELAWARE COUNTY

2002 Ohio 1292; 2002 Ohio App. LEXIS 1366

March 18, 2002, Date of Judgment Entry

PRIOR HISTORY: [*1] CHARACTER OF PROCEEDING: Appeal from the Delaware County, Common Pleas Court, Case No. 00-CVC-06-270.

DISPOSITION: Trial court’s grant of defendants-appellees’ motion for summary judgment was affirmed.

COUNSEL: For Plaintiffs-Appellants: JOHN A. YAKLEVICH, Columbus, Ohio.

For Defendants-Appellees: MARK PETRUCCI, Columbus, Ohio.

JUDGES: Hon. Sheila G. Farmer, P.J., Hon. Julie A. Edwards, J., Hon. John F. Boggins, J. Boggins, J., Farmer, P.J., and Edwards, J. concur.

OPINION BY: John F. Boggins

OPINION

Boggins, J.

This is an appeal from a Summary Judgment ruling of the Delaware County, Court of Common Pleas.

STATEMENT OF THE FACTS AND CASE

The facts underlying this case are that appellant Roger Chapple was an employee of the Ohio Department of Natural Resources, Division of Parks and Recreation (O.D.N.R.). Appellee Ultrafit, Inc. through its president, appellee Jeffrey Sheard is engaged in organizing and promoting events such as triathlons. One of these contests was set for June 28, 1998 at Alum Creek State Park. Appellees had made application to the O.D.N.R. to use the facilities, including employees of O.D.N.R. on June 28, 1998 to conduct a triathlon. Appellant signed up per O.D.N.R. procedure to work the event. John Williamson, crew leader for O.D.N.R. set the work schedule which [*2] included appellant’s duties. (Appellant’s deposition at p.14). Appellant had no contact with appellees on 6/28/98 prior to his injury. Due to severe weather, the triathlon’s starting time was delayed until about 9:30a.m. when the weather had improved. Due to the late start, the race was shortened. Near the end of the shortened event, appellant Roger Chapple was rolling a hose on an abandoned leg of the race and was struck by lightning and injured. Appellant, Joyce Chapple, spouse of Roger Chapple is joined on a loss of consortium basis. The issues are whether appellees owed a duty to Roger Chapple, was he an employee of O.D.N.R. or other status, and if a duty of care existed, did it require a postponement or cancellation of the event. Appellees filed a Motion for Summary Judgment on April 11, 2000 which was set for a non-oral hearing with appellants memorandum in opposition filed May 8, 2000, and a reply subsequently filed. After careful consideration of all materials available to the trial court, it sustained appellee’s motion.

ASSIGNMENT OF ERROR

The sole Assignment of Error is:

I.

THE TRIAL COURT ERRED IN RENDERING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS-APPELLEES WHERE [*3] THE DEFENDANT-APPELLEES OWED A DUTY OF CARE TO PLAINTIFFS-APPELLANTS AND GENUINE ISSUES OF FACT EXISTED CONCERNING DEFENDANTS-APPELLEES’ BREACH OF THAT DUTY.

SUMMARY JUDGMENTS

Civ.R. 56(C) states, in pertinent part:

[HN1] Summary Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law…. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor.

[HN2] Pursuant to the above rule, a trial court may not enter a summary judgment if it appears a material fact is genuinely disputed. [HN3] In order to survive a motion for summary judgment, the non-moving party must produce evidence on any issue [*4] to which that party bears the burden of production at trial. Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St. 3d 108, 570 N.E.2d 1095, citing Celotex v. Catrett (1986), 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548. [HN4] Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St. 3d 35, 36, 506 N.E.2d 212. I. As to the Assignment of Error, even though appellants’ Complaint asserts negligence, gross negligence and wanton and wilful misconduct but his Brief relies solely on negligence. (Appellant’s brief at p. 8). Appellant acknowledges that no Ohio case strictly fits the fact pattern in the case sub judice. Other than the cases citing basic propositions of negligence law, none of the cases cited by either party to this appeal are particularly in point, therefore we must, as the trial court did, review the facts which would support or refute the decision from which the appeal is taken. The deposition of appellant, Roger Chapple, indicates that the weather had cleared by the delayed starting time and that [*5] lightning flashes were to the north of the park. (Appellant’s deposition at p. 26). In the reply brief appellant’s counsel attempts to blame a memory loss for the inability of Roger Chapple to remember that lightning was flashing in his vicinity prior to being struck. (Appellant’s reply brief at p. 2). This conclusion is not supported by appellant’s deposition which demonstrates a clear memory except for short term loss. (Appellant’s deposition at p. 46). The essential issue is whether alleged facts were presented to the trial court indicating a breach of duty of appellees to appellants. [HN5] The existence of a duty is an essential element of negligence action. Grover v. Eli Lilly and Company (1992), 63 Ohio St. 3d 756, 591 N.E.2d 696. [HN6] The foreseeability of injury is obviously a factor to consider under appropriate circumstances. An injury is foreseeable if a reasonably prudent person, under like or similar circumstance knew or should have known that an act or nonperformance of an act was likely to result in harm. Simmers v. Bentley Construction Co. (1992), 64 Ohio St. 3d 642, 597 N.E.2d 504. Here, appellants assert that, because appellee had authority to postpone [*6] or cancel the race, that a duty to appellant existed. The defect in this argument is that the weather had cleared considerably at starting time. Lightning flashes were to the north. Appellant did not believe that danger was present. (Appellant’s deposition at p. 47). Also, if such became a concern, he believed policy dictated that he go to a vehicle. (Appellant’s deposition at p. 40-41). Appellant argues that severe electrical storm activity was present, but his deposition does not support this conclusion. Appellee has reviewed certain theories and applicable cases such as injury to subcontractors, and inherently dangerous activity. These are not applicable under the facts and the appellant being a subcontractor has not been argued. The only aspect of appellant’s position which is close to the decisions in this line of cited cases is one of control by appellee. The control asserted is that appellant was included with the use of the facilities and appellees retained the exclusive ability to cancel or postpone the triathlon. However, no direction occurred. It can only be argued that appellee possessed a general authority to cancel or postpone. In this narrow regard the language of Wellman v. East Ohio Gas Co. (1953), 160 Ohio St. 103, 113 N.E.2d 629 [*7] is pertinent even though, it is a subcontractor case. It holds that active participation by the contractor as opposed to a general supervisory role is required. The facts in the case sub judice indicate that Roger Chapple chose to work outside and felt that no danger existed. (Appellant’s deposition at p. 41-42). Roger Chapple believed that park rules provided that he wait in a vehicle if a weather danger existed, (Appellant’s deposition at p. 40-41) even though Mr. Hart disputes the existence of such a policy in his deposition. As stated before, Roger Chapple had no contact with appellees and nothing in any deposition supports direction by appellees. It is asserted that lightning was present during the race and the affidavit of Mr. Williamson is relied on for this assertion. However, such affidavit also places the lightning to the north of the race event. It is also stated that appellees had no access to weather information. However, Mr. Sheard’s deposition indicated that amateur radio operators were at the race and would provide such data if such need arose. (Sheard deposition at p. 38). The facts which the trial court had available is that Mr. Chapple was employed by and paid by [*8] O.D.N.R. His worker’s compensation claim was filed as such rather than as a loaned employee to appellees. It is accurate, however, that [HN7] an employee may institute a third-party negligence action even though a worker’s compensation claim has been filed. George v. City of Youngstown (1942), 139 Ohio St. 591. The essence of appellant’s claim is that appellee had the authority to postpone or cancel the race and that the race was commenced under dangerous weather conditions. We must disagree with the Assignment of Error and conclude, as the trial court did, that there is insufficient support for the existence of a duty, control of the activities of appellant, nor negligence of appellee.

We therefore affirm the decision of the trial court.

By: Boggins, J. Farmer, P.J. and Edwards, J. concur.


Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release

If the industry says you should and calls it a standard you better

Lautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290 (Mass. Sup 2003)

Plaintiff: Derek A. Lautieri

Defendant: Jorun G. Bae

Third Party Defendants: defendants USA Triathlon, Inc., William Fiske d/b/a Fiske Independent Race Management, the Boys and Girls Clubs of Metrowest, Inc.

Plaintiff Claims: negligence and court added gross negligence

Defendant Defenses: Release

Holding: Holding release released defendants who could not be held to gross negligence.

This decision is from a trial court in Massachusetts. It has limited value in Massachusetts and other states.

If you have read many of these articles, you understand that releases do not bar claims for gross negligence. In this case, the release did not bar the claim for gross negligence, even when the plaintiff did not plead gross negligence.

This is a car/bike accident case during a triathlon. The plaintiff was cycling in a triathlon with several other cyclists. The defendant Bae, driver pulled out in front of the cyclists resulting in a collision. The course was not closed to traffic.

The defendant car driver brought in as third party defendants the race organizer, William Fiske d/b/a Fiske Independent Race Management (Fiske), the race charity Boys and Girls Clubs of Metrowest, Inc. (BGC) and the triathlon association sanctioning body USA Triathlon, Inc., (USTA).

The third party defendants were brought in for “contribution.” Contribution is defined in Massachusetts as:

Where two or more persons become jointly liable in tort for the same injury to person or property, there shall be a right of contribution among them.” The Supreme Judicial Court (“SJC”) has consistently interpreted the language of this statute to mean that an “action for contribution is not barred if, at the time the accident occurred, the party for whom contribution is sought could have been held liable in tort.”

For the defendant, Bae to enable to enforce contribution against the third party defendants she must show that the third party defendants could be held liable at trial in tort. Any defenses available to the third party defendants against the original plaintiff will also be a defense to the contribution claim of the defendant Bae.

Therefore, in order for Bae to be able to enforce a right of contribution against any of the third-party defendants, she must be able to show that the particular third-party defendant could have been found tortiously liable to the plaintiff at the time the accident occurred.

Fiske was the person who put the triathlon together. Even though Fiske was operating as Fiske Independent Race Management, the court indicated that Fiske was not a corporation or company (LLC). USTA sanctioned the race, including providing liability insurance and standards, according to the court, on how the race should be run.

The defendant Bae argued that the third party defendants should be liable for failing to “a safe layout for the race course, failure to provide warning signs and directions, and failure to place volunteers and/or police personnel at the intersection where the incident occurred.”

The court determined that USTA was:

…the governing body of triathlon races and promulgates safety requirements for use by organizers of sanctioned triathlon races.

USTA is the governing body of triathlon races and promulgates safety requirements for use by organizers of sanctioned triathlon races.

In that position, USTA created regulations for running triathlons which the court quoted:

2. It is highly recommended to close the [bike race] road to traffic. If not possible, cone bike lanes with a minimum width of six feet from vehicles . . . 9. Control stoplights/stop sign intersections, traffic hazards and turnarounds with police and an ample amount of volunteers . . . 12. Use ‘Race in Progress’ or ‘Watch for Cyclists’ signs placed along the course to help warn motorists about conditions . . . 23. All turns, turn-arounds, traffic hazards and intersections must be monitored and marked with signs and volunteers. Any intersections with stop signs or stop lights must be controlled by police or professional traffic personnel.

Fiske did not follow any of the guidelines offered by the USTA.

…it does not appear that Fiske, as Race Director, heeded any of the guidelines described above for the triathlon at issue; rather, he left the intersection at which Lautieri collided with Bae open to traffic, uncontrolled by police or volunteers, unmarked with warnings, and unmonitored.

Summary of the case

The defense raised by the third party defendants was “release.” The plaintiff signed a release to join the USTA and receive a license. The plaintiff also signed an application which contained language similar to that of a release when she entered the race.

Under Massachusetts law, the enforceability of a release is a question (issue) of law to be decided by the court. “Massachusetts law favors the enforcement of releases.”

There can be no doubt . . . that under the law of Massachusetts . . . in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf.” While any doubts about the interpretation of a release must be resolved in the favor of the plaintiff, an unambiguous and comprehensive release will be enforced as drafted.

Nor does the word negligence have to be found in the release. Releases, like all other states, do not bar claims of gross negligence. Neither the plaintiff nor the defendant complained of any gross negligence. The court, however, stated that even though not pled, gross negligence could be found later against Fiske. If that was the case, then the releases signed by the plaintiff did not bar the claim against Fiske. “While these waivers are sufficient to release Fiske from all liability for harm caused by his own negligence, they do not release him from his own gross negligence.” The court found that the actions of Fiske could rise to the level of gross negligence.

The basis of that finding was Fiske did not follow the guidelines or regulations of the governing body, the USTA in running the race. “As this definition is necessarily vague, it is important to note that courts have found that “industry standards may be some evidence of negligence.”

To some extent, the court must have thought that Fiske’s failure to follow the standards of the USTA was very egregious to raise the issue of gross negligence in the case.

The court quoted the regulations cited above as evidence that what Fiske did when ignoring the industry standards was sufficient to void the release because it raised the possibility that Fiske was grossly negligent.

…it does not appear that Fiske, as Race Director, heeded any of the guidelines described above for the triathlon at issue; rather, he left the intersection at which Lautieri collided with Bae open to traffic, uncontrolled by police or volunteers, unmarked with warnings, and unmonitored.

The court further defined negligence and gross negligence under Massachusetts law.

Negligence, without qualification and in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances. It is a want of diligence commensurate with the requirement of the duty at the moment imposed by the law.

Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence . . . It falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injure.”

The court’s justification for not letting Fiske out of the case and for allowing the possibility of a claim for gross negligence was interesting.

While Bae has specifically pled negligence, and not gross negligence, this Court has considered the summary judgment motion as if a claim for gross negligence against the third-party defendants has been made.

Accordingly, because gross negligence may be considered an alternative theory of a standard negligence claim, Bae should be permitted to proceed with her claim of gross negligence against the third-party defendants.

The court then looked at the allegations against the USTA.

In order for Lautieri to establish that USTA owed him a duty of care at the time the accident occurred, Lautieri would have to establish that such a duty has a “source existing in social values and customs,” or that USTA voluntarily, or for consideration, assumed a duty of care to Lautieri. This is a burden that Lautieri–or, more appropriately, Bae, standing in Lautieri’s shoes–cannot meet.

There was no evidence that showed USTA participated or was supposed to participate in the planning, operation, supervision or running of the race. USTA did not even have a representative of USTA attend the race. Consequently, because there was no duty and USTA created no duty to the plaintiff the release barred the claims of the third party defendant.

The court’s discussion of the Boys and Girls Club was shorter.

A similar finding regarding the B&G Clubs is mandated. While there is evidence that the B&G Clubs provided volunteers for the triathlon, there is no evidence to support a claim of gross negligence against the B&G Clubs or any of its members.

USTA and the Boys and Girls Club were dismissed from the lawsuit.

So Now What?

The “release” or as identified by the court, application, was extremely weak. If the release had identified the course as being an open course, not closed to cars, this might have changed the outcome of the case for Fiske. No matter, the document was too weak not to create problems rather than resolve them in this case.

However, even if the release was stronger, it might not have gotten Fiske out of the case because of the court raised allegations of gross negligence. The USTA created regulations for running a race. By requesting and receiving sanctioning for the race, Fiske knowingly or unknowingly, became burdened or bound by those regulations. The court called them standards, regulations and guidelines throughout the decision, but the simple fact is they were a noose around the third party defendant’s neck.

You cannot look at your industry and not understand the standard of care in the industry or not find and follow the guidelines the industry is creating.

These “regulations” are fairly simple and appear to be commons sense. However, they substantially increase the cost of running an event. Closing a street requires government paperwork, government employees and usually help from law enforcement. All significantly increase the cost of running the event.

However, the regulations more importantly are proof that if an industry association creates regulations, standards, guidelines or rules, they are the standard of care against which members of the same industry will be judged in court.

For more articles on how standards created by an association are used to harm association members see:

ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp

Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp

Plaintiff uses standards of ACCT to cost defendant $4.7 million

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent

What do you think? Leave a comment.

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Lautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290

Lautieri v. Bae, 17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290

Derek A. Lautieri v. Jorun G. Bae 1

1 The Town of Hudson was also named as a third-party defendant in the complaint. Count IV against the Town has been dismissed. Memorandum of Decision, dated June 7, 2002 (Bohn, J.).

01-4078

SUPERIOR COURT OF MASSACHUSETTS, AT MIDDLESEX

17 Mass. L. Rep. 4; 2003 Mass. Super. LEXIS 290

October 29, 2003, Decided

October 29, 2003, Filed

DISPOSITION: Third party defendants’ motions for summary judgment allowed in part and denied in part.

JUDGES: [*1] Kenneth J. Fishman, Justice of the Superior Court.

OPINION BY: Kenneth J. Fishman

OPINION

MEMORANDUM OF DECISION AND ORDER ON THIRD-PARTY DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

INTRODUCTION

Plaintiff, Derek A. Lautieri (“Lautieri”), was injured during a triathlon held in Hudson, Massachusetts. Lautieri brought this action against the defendant/third-party plaintiff, Jorun G. Bae (“Bae”), claiming negligence for Bae’s failure to exercise reasonable care in the operation of her motor vehicle. Bae in turn brought an action against third-party defendants USA Triathlon, Inc. (“USAT”) (Count I of Third-Party Complaint), William Fiske (“Fiske”) d/b/a Fiske Independent Race Management (Count II) 2 and the Boys and Girls Clubs of Metrowest, Inc. (“B&G Clubs”) (Count III), seeking contribution in the event that the plaintiff recovers damages for his alleged injuries. 3 Specifically, Bae claims negligence on part of the third-party defendants for failure to provide a safe layout for the race course, failure to provide warning signs and directions, and failure to place volunteers and/or police personnel at the intersection where the incident occurred. This matter is before this Court on the third-party [*2] defendants’ motions for summary judgment as to all counts. For the reasons described below, the third party defendants’ motions are ALLOWED, in part, and DENIED, in part.

2 Bae’s complaint uses the spelling “Fisk” in the caption. As all the parties, including Bae, have since used the spelling “Fiske”, this Court will use the latter spelling.

3 Bae initially also claimed a duty of indemnification, but has since stipulated that no privity of contract existed between himself and any of the third-party defendants, and, therefore, that no right of indemnification exists.

BACKGROUND

On June 4, 2000, Lautieri participated in an organized triathlon, one leg of which was competitive bicycling. Bae, while operating a motor vehicle, came to the intersection of Main Street and Lewis Street in Hudson. Bae stopped, looked to her left, looked to her right, and then looked to her left again for approaching traffic. Seeing no vehicles approaching, Bae proceeded straight through the intersection. Lautieri, [*3] then approaching the intersection with four or five other bicyclists, turned to avoid Bae’s vehicle but did not have sufficient time to prevent a collision. Lautieri suffered significant injuries as a result of the accident.

On May 12, 2000, prior to the race, Lautieri completed and signed a “USA Triathlon Annual Licence Application Waiver.” That waiver contained the following language in the form duplicated below:

I acknowledge that a triathlon or bisport/duathlon event is an extreme test of a person’s physical and mental limits and carries with it the potential for death, serious injury and property loss. I HEREBY ASSUME THE RISKS OF PARTICIPATING IN TRIATHLONS OR BISPORT/DUATHLON EVENTS. I certify that I am physically fit and have sufficiently trained for participating in this event(s), and have not been advised against participating by a qualified health professional. I acknowledge that my statements in this AWRL are being accepted by the USAT in consideration for allowing me to become a member in USAT and are being relied upon by USAT and the various race sponsors, organizers and administrators in permitting me to participate in any USAT sanctioned event . . . (b) I AGREE that [*4] prior to participating in an event I will inspect the race course, facilities, equipment and areas to be used and if I believe they are unsafe I will immediately advise the person supervising the event activity or area; (c) I waive, release, AND DISCHARGE for any and all claims, losses or liabilities for death, personal injury, partial or permanent disability, property damage, medical or hospital bills, theft, or damage of any kid, including economic losses, which may in the future arise out of or relate to my participation in or my traveling to and from a USAT sanctioned event, THE FOLLOWING PERSONS OR ENTITIES: USAT, EVENT SPONSORS, RACE DIRECTORS, EVENT PRODUCERS, VOLUNTEERS, ALL STATES, CITIES, COUNTIES, OR LOCALITIES IN WHICH EVENTS OR SEGMENTS OR EVENTS ARE HELD, AND THE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS OF ANY OF THE ABOVE, EVEN IF SUCH CLAIMS, LOSSES OR LIABILITIES ARE CAUSED BY THE NEGLIGENT ACTS OF OMISSIONS OF THE PERSONS I AM HEREBY RELEASING OR ARE CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OF ANY OTHER PERSON OR ENTITY; (d) I ACKNOWLEDGE that there may be traffic or persons on the course route, and I ASSUME THE RISK OF RUNNING, BIKING, SWIMMING [*5] OR PARTICIPATING IN ANY OTHER EVENT SANCTIONED BY USAT.

(e) I AGREE NOT TO SUE any of the persons or entities mentioned above in paragraph (c) for any of the claims, losses or liabilities that I have waived, released or discharged herein; (f) I INDEMNIFY AND HOLD HARMLESS the persons or entities mentioned above in paragraph (c) for any and all claims made or liabilities assessed against them as a result of my acts or inactions (ii) the actions, inactions or negligence of others including those parties hereby indemnified (iii) the conditions of the facilities, equipment or areas where the event or activity is being conducted (iv) the Competitive Rules (v) any other harm caused by an occurrence related to a USAT event . . .

Prior to the race, Lautieri also completed and signed a “Wet ‘N’ Wild Triathlon Application,” which contained the following language:

In consideration of the entry being accepted, I do hereby forever waive and release Fiske Independent Race Management, the sponsoring organization, companies, agents, representatives, assigns and successors from all claims of action, which I at any time acquire as a result of participation in the event for which this entry relates.

[*6] USTA is the governing body of triathlon races and promulgates safety requirements for use by organizers of sanctioned triathlon races. The subject triathlon was sanctioned by USTA based upon an application submitted by Fiske. On that application, William Fiske is identified as the Race Director. The Boys and Girls Clubs of Metrowest, Inc. provided a number of volunteers for the event.

DISCUSSION

[HN1] A party is entitled to summary judgment, “if pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material facts and that the moving party is entitled to a judgment as a matter of law.” Mass.R.Civ.P. 56(c). The burden of the moving party “is not sustained by the mere filing of the summary judgment motion,” but “must be supported by one or more of the materials listed in rule 56(c) . . .” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714, 575 N.E.2d 734, citing Celotex Corp. v. Catrett, 477 U.S. 317, 328, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). That party may satisfy this burden either by submitting affirmative evidence that negates an essential [*7] element of the opposing party’s case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991); Kourouvacilis, 410 Mass. at 716. “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat a motion for summary judgment.” Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989), citing O’Brion, Russell & Co. v. LeMay, 370 Mass. 243, 245, 346 N.E.2d 861 (1976).

General Laws c. 231B, § 1, [HN2] provides in pertinent part: “Where two or more persons become jointly liable in tort for the same injury to person or property, there shall be a right of contribution among them.” The Supreme Judicial Court (“SJC”) has consistently interpreted the language of this statute to mean that an “action for contribution is not barred if, at the time the accident occurred, the party for whom [*8] contribution is sought could have been held liable in tort.” McGrath v. Stanley, 397 Mass. 775, 781, 493 N.E.2d 832 (1986) (emphasis in original). See also, Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 346-50, 446 N.E.2d 1033 (1983); Liberty Mutual Ins. Co. v. Westerlind, 374 Mass. 524, 526, 373 N.E.2d 957 (1978); O’Mara v. H.P. Hood & Sons, Inc., 359 Mass. 235, 238, 268 N.E.2d 685 (1971). 4 Therefore, in order for Bae to be able to enforce a right of contribution against any of the third-party defendants, she must be able to show that the particular third-party defendant could have been found tortiously liable to the plaintiff at the time the accident occurred. Each third-party defendant will be discussed separately below.

4 In McGrath, where a plaintiff’s failure to comply with the particular jurisdictional requirements of G.L.c. 258, § 4 was held not sufficient to bar a right of contribution, the SJC noted that the “contribution statute is aimed at eliminating the unfairness of allowing a disproportionate share of a plaintiff’s recovery to be borne by one of several joint tortfeasors.” 397 Mass. at 777-78. The third-party defendants in the instant case, however, are not claiming a lack of jurisdiction, but instead that the plaintiff’s signature on certain waivers releases them from all liability. The SJC has approved the denial of the right of contribution in similar cases. See O’Mara, 359 Mass. at 238 (denying contribution to defendant company from the driver of car in which plaintiff was a passenger when company truck hit driver’s car); Liberty Mutual Ins. Co., 374 Mass. at 526 (denying contribution of plaintiff’s employer for work related injury on grounds that the employer’s contributions to workers’ compensation benefits released the employer from all tort claims that might have resulted from the accident).

[*9] A. William Fiske d/b/a/ Fiske Independent Race Management

Fiske argues that he was released from all liability regarding the Wet ‘N’ Wild Triathlon when Lautieri signed the USA Triathlon Annual Licence Application Waiver and the Wet ‘N’ Wild Triathlon Application. [HN3] Whether the waivers signed by the plaintiff are enforceable to bar any claims in tort against Fiske is a question of law to be decide by this Court.

[HN4] “Massachusetts law favors the enforcement of releases.” Sharon v. City of Newton, 437 Mass. 99, 105, 769 N.E.2d 738 (2002). “There can be no doubt . . . that under the law of Massachusetts . . . in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf.” Id., quoting Schell v. Ford, 270 F.2d 384, 386 (1st Cir. 1959). While any doubts about the interpretation of a release must be resolved in the favor of the plaintiff, an unambiguous and comprehensive release will be enforced as drafted. Cormier v. Central Massachusetts Chapter of the National Safety Council, 416 Mass. 286, 288, 620 N.E.2d 784 (1993). [*10]

Thus, in Cormier, the SJC upheld summary judgment against a plaintiff who executed a waiver of liability prior to sustaining injuries while riding on a motorcycle safety course. The Court found the waiver sufficient to bar a claim in negligence, even though the word negligence never appeared in the document. Id. at 288. The SJC also rejected the plaintiff’s claim that she believed that she was only relieving the defendant for liability for any accidental injury, not for any injury caused by the defendant’s negligence, holding that her “subjective intent not to release any claim for negligence, does not furnish a basis for avoiding the release on the ground of mistake.” Id. at 289.

Upon examination of the two releases signed by Lautieri prior to the subject triathlon, it is evident that he executed an unambiguous release of the third-party defendant, William Fiske. The USA Triathlon Annual Licence Application Waiver clearly and unambiguously releases “RACE DIRECTORS” from “any and all claims, losses or liabilities . . .” Fiske is listed as the “Race Director” on the 2000 USA Triathlon Event Sanction Application submitted to USAT. Furthermore, [*11] the Wet ‘N’ Wild Triathlon Application releases “Fiske Independent Race Management, the sponsoring organization, companies, agents, representatives, assigns and successors from all claims of action . . .” To the extent that Bae argues that the phrase “agents, representatives, assigns and successors” might refer to the phrase “sponsoring organization,” and that Fiske Independent Race Management–while not a legal entity–does not actually refer to William Fiske, individually, such interpretations are not reasonable given the plain meaning of the waiver language. 5 Nevertheless, even if this Court were to hold that the Wet ‘N’ Wild Triathlon Application was sufficiently ambiguous to render the waiver unenforceable, the language of the USA Triathlon Annual Licence Application Waiver is unambiguous and releases Fiske from liability. Thus, Fiske’s motion for summary judgment, as it relates to Bae’s claim of negligence against him, is well founded.

5 William Fiske used the name “Fiske Independent Race Mgt.” and “F.I.R.M” on the 2000 USA Triathlon Event Sanction Application regarding the Wet ‘N’ Wild Triathlon. Since there is no evidence in the record that “Fiske Independent Race Mgt.” or “F.I.R.M” are incorporated entities, or that William Fiske filed a business certificate in Massachusetts under these names, William Fiske is not afforded any legal protection by virtue of the use of these fictional business entities. See Pedersen v. Leahy, 397 Mass. 689, 691, 493 N.E.2d 486 (1986).

[*12] This analysis, however, does not end the matter. [HN5] Both the SJC and the Appeals Court “have noted that releases are effective against liability for ordinary negligence.” Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass.App.Ct 17, 18, 687 N.E.2d 1263 (1997) (emphasis in original), citing Lee v. Allied Sports Associates, Inc., 349 Mass. 544, 551, 209 N.E.2d 329 (1965). In Zavras, the Appeals Court, citing reasons of public policy, held that the owner of a premises at which organized dirt bike races were held did not exempt itself from liability for gross negligence by requiring participants in races to sign a release as a condition of participating. 44 Mass.App.Ct. at 18-19. See also, Restatement (Second) of Contracts § 195 (1981) (“A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy”). The Zavaras court noted that there is “substantial authority . . . [for] the position that while a party may contract against liability for harm caused by its negligence, it may not do so with respect to its gross [*13] negligence.” 44 Mass.App.Ct. at 19.

The present case is indistinguishable from Zavras. Here, Lautieri signed two valid waivers releasing Fiske, among others, from any and all liability that might arise from his participation in the subject triathlon race. While these waivers are sufficient to release Fiske from all liability for harm caused by his own negligence, they do not release him from his own gross negligence.

Thus, for purposes of determining contribution, the question for this Court becomes whether a finder of fact could find Fiske liable to Lautieri for gross negligence. Based on the summary judgment record viewed in a light most favorable to Bae, a genuine issue of material fact exists concerning whether the accident resulted from Fiske’s gross negligence.

[HN6] Gross negligence is defined as “very great negligence, or the absence of slight diligence, or the want of even scant care.” Zavras, 44 Mass.App.Ct. at 20, quoting Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505 (1919). 6 As this definition is necessarily vague, it is important to note that courts have found that “industry standards may be some evidence of negligence. [*14] ” Fidalgo v. Columbus McKinnon Corp., 56 Mass.App.Ct. 176, 184, 775 N.E.2d 803 (2002), citing Poirier v. Plymouth, 374 Mass. 206, 211, 372 N.E.2d 212 (1978); Resendes v. Boston Edison Co., 38 Mass.App.Ct. 344, 358, 648 N.E.2d 757 (1995). Bae has submitted the USAT 2000 Event Sanctioning Guidelines & Requirements as evidence of the negligence of Fiske and the other third-party defendants. In the section entitled “Bike,” the USAT triathlon regulations state: “2. It is highly recommended to close the [bike race] road to traffic. If not possible, cone bike lanes with a minimum width of six feet from vehicles . . . 9. Control stoplights/stop sign intersections, traffic hazards and turnarounds with police and an ample amount of volunteers . . . 12. Use ‘Race in Progress’ or ‘Watch for Cyclists’ signs placed along the course to help warn motorists about conditions . . . 23. All turns, turn-arounds, traffic hazards and intersections must be monitored and marked with signs and volunteers. Any intersections with stop signs or stop lights must be controlled by police or professional traffic personnel.” Based on the record before this Court, [*15] it does not appear that Fiske, as Race Director, heeded any of the guidelines described above for the triathlon at issue; rather, he left the intersection at which Lautieri collided with Bae open to traffic, uncontrolled by police or volunteers, unmarked with warnings, and unmonitored. Therefore, this Court cannot say that there is no genuine dispute as to whether a failure to heed any of the triathlon industry guidelines regarding intersections, which left oncoming drivers totally unaware of the possible dangers that awaited them, constitutes gross negligence. See Chiacchia v. Lycott Environmental Research, Inc., 4 Mass. L. Rptr. 399, 1995 WL 1146824, *10 (Mass.Super.) (finding that the multiple ways in which the defendant’s investigation of certain property “failed to conform to established standards in the industry lead the court to conclude that [defendant’s] negligence in this matter [amounted] to gross negligence”).

6 [HN7] “Negligence, without qualification and in its ordinary sense, is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances. It is a want of diligence commensurate with the requirement of the duty at the moment imposed by the law.

[HN8] “Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence . . . It falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injure.” Altman, 231 Mass. at 591-92.

[*16] While Bae has specifically pled negligence, and not gross negligence, this Court has considered the summary judgment motion as if a claim for gross negligence against all of the third-party defendants has been made. [HN9] “Under current Massachusetts State practice there is no requirement that a complaint state the correct substantive theory of the case.” Gallant v. Worcester, 383 Mass. 707, 709, 421 N.E.2d 1196 (1981), citing Mass.R.Civ.P. 8(a)(2); Mass.R.Civ.P. 54 (c). Even though it is sound practice to state all possible claims, the SJC has held that “a complaint is not subject to dismissal if it would support relief on any theory of law.” Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89, 390 N.E.2d 243 (1979) (emphasis in original), citing Thompson v. Allstate Ins. Co., 476 F.2d 746, 749 (5th Cir. 1973). Thus, courts are generally “obligated to consider each of the alternative theories of law . . . on which [the complaining party’s] action might be maintained.” Id. Several courts in other jurisdictions have permitted a plaintiff to proceed with a claim for gross negligence after having only pled a claim for negligence. [*17] See, e.g., McTavish v. Chesapeake and Ohio Railroad Co., 485 F.2d 510, 512 (4th Cir.1973) (holding that Kentucky law permitted a claim of gross negligence to flow from an allegation of “negligence and carelessness”); Smith v. Hill, 510 F. Supp. 767, 775 (D.Utah 1981) (upon review of pleading and briefs court assumed that plaintiff “intended to plead that the [defendants] were grossly negligent”). Accordingly, because gross negligence may be considered an alternative theory of a standard negligence claim, Bae should be permitted to proceed with her claim of gross negligence against the third-party defendants. See Altman, 231 Mass. at 593 (holding that a plaintiff has the right to insist that a jury be instructed on the distinction between negligence and gross negligence at trial).

Accordingly, Fiske may be held liable for contribution to any successful claim for gross negligence that Lautieri could have made against Fiske at the time of the accident.

B. USAT

USAT argues that no duty exists between itself and the individuals who choose to participate in the triathlon. [HN10] Neither the SJC nor the Appeals Court has specifically ruled [*18] on whether a duty of care is owned to participants in an athletic event by a sanctioning body of the subject sport when that race takes place on public property.

USAT argues that the reasoning in Gauvin v. Clark, 404 Mass. 450, 537 N.E.2d 94 (1989), compels the application of a recklessness standard in the present case. In Gauvin, the SJC held that “personal injury cases arising out of an athletic event must be predicted on reckless disregard of safety,” on grounds that “vigorous and active participation in sporting events should not be chilled by the threat of litigation.” Id. at 454, citing Kabella v. Bouschelle, 100 N.M. 461, 465, 672 P.2d 290 (1983). The Gauvin case is not controlling here. Bae is not seeking to hold another participant in the triathlon responsible for Lautieri’s injuries. Instead, he is seeking damages from those who organized and sanctioned the event.

[HN11] Whether a defendant owed a duty of care to the plaintiff is a question of law. O’Sullivan v. Shaw, 431 Mass. 201, 204, 726 N.E.2d 951 (2000). In order for Lautieri to establish that USAT owed him a duty of care at the time the accident [*19] occurred, Lautieri would have to establish that such a duty has a “source existing in social values and customs,” Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629, 536 N.E.2d 1067 (1989), or that USAT voluntarily, or for consideration, assumed a duty of care to Lautieri. Mullins v. Pine Manor College, 389 Mass. 47, 52-53, 449 N.E.2d 331 (1983). This is a burden that Lautieri–or, more appropriately, Bae, standing in Lautieri’s shoes–cannot meet. The only involvement of USAT with the subject triathlon was its approval of Fiske’s application, which, in essence, effectively permitted Fiske to be eligible for insurance coverage from the USAT Triathlon liability policy. There is no evidence in the record that suggests that USAT had any obligation or was expected to participate in the planning, operation, or supervision of the race, much less have a representative attend the Wet ‘N’ Wild triathlon. Accordingly, there is no basis on which to conclude that USAT owed Lautieri a duty of care. Assuming, arguendo, that USAT did owe a duty of care to Lautieri, the summary judgment record is devoid of any evidence that would permit a finder of fact [*20] to conclude that USAT acted with gross negligence with regard to Lautieri or the subject triathlon. Therefore, summary judgment in favor of third-party defendant USAT must be allowed.

C. Boys and Girls Clubs of Metrowest, Inc.

A similar finding regarding the B&G Clubs is mandated. While there is evidence that the B&G Clubs provided volunteers for the triathlon, there is no evidence to support a claim of gross negligence against the B&G Clubs or any of its members. Thus, the waivers are operative to release the B&G Clubs from liability. Accordingly, summary judgment for the third-party defendant B&G Clubs must also be allowed.

ORDER

For the foregoing reasons, USA Triathlon, Inc’s and Boys and Girls Clubs of Metrowest, Inc.’s motions for summary judgment are ALLOWED, and, accordingly, judgment shall enter for the third-party defendants on Counts I and III of the third-party complaint, as they relate to claims of contribution, and on Counts I, II, and III of the third-party complaint, as they relate to indemnification. William Fiske, d/b/a Fiske Independent Race Management’s motion for summary judgment on Count II of the third-party complaint is DENIED as it relates [*21] to a claim for contribution.

Kenneth J. Fishman

Justice of the Superior Court

Date: October 29, 2003

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Liability of race organizer for State Park Employees?

Legally a complicated issue with no clear answer on how to prevent this issue in the future

Chapple, Et Al., v. Ultrafit USA, Inc., Et Al., 2002 Ohio 1292; 2002 Ohio App. LEXIS 1366 (Ohio App. 2002)

Plaintiff: Roger Chapple & Joyce Chapple

Defendant: Appellee Ultrafit, Inc., Jeffrey Sheard

Plaintiff Claims: negligence, loss of consortium

Defendant Defenses: no duty

Holding: for the defendant

I would guess this is a subrogation case. A subrogation claim is based upon the subrogation clause in an insurance policy. This clause gives your insurance company that pays a claim on your behalf to sue someone in your name to recover what the insurance company paid. If you were hurt at work, and worker’s compensation paid a claim on your behalf, worker’s compensation could sue to recover for the damages WC paid.

However, that is just a guess in this case.

This is an interesting fact situation. The plaintiff was an employee of the Ohio Department of Natural Resources, Division of Parks and Recreation, (ODNR). The defendant was running a triathlon in one of Ohio’s state parks. The plaintiff signed up to work the triathlon through normal procedures with ODNR and the park.

The plaintiff had no interaction with the defendant prior to the accident. The triathlon was delayed for a while because of weather issues. Eventually, the triathlon started after a delay. The plaintiff was in the park, rolling a hose in an area where a leg of the race had been when he was struck by lightning. The plaintiff and his spouse sued for their injuries.

The issues are whether appellees owed a duty to Roger Chapple, was he an employee of O.D.N.R. or other status, and if a duty of care existed, did it require a postponement or cancellation of the event.

Summary of the case

The court first looked at many factual issues that were pled at the appellate level that were in conflict with the deposition of the plaintiff. (Plaintiff on appeal said one thing and during his deposition said something else.) Although the court made note of those issues to deny arguments of the plaintiff, no other action was taken.

The issue was whether the defendant was negligent. The negligence argument was centered on whether the defendant owed a duty to the plaintiff. The first part of that argument was whether the injury was foreseeable.

The existence of a duty is an essential element of negligence action. The foreseeability of injury is obviously a factor to consider under appropriate circumstances. An injury is foreseeable if a reasonably prudent person, under like or similar circumstance knew or should have known that an act or nonperformance of an act was likely to result in harm. Here, appellants assert that, because appellee had authority to postpone or cancel the race, that a duty to appellant existed. The defect in this argument is that the weather had cleared considerably at starting time. Lightning flashes were to the north. Appellant did not believe that danger was present.

However, there were a few issues with that argument. The plaintiff knew that during lightning, ODNR had a policy that he was to return to his vehicle. The argument made by the defendant was, there was no obvious lightning around the plaintiff, the lightning had all moved to the north. The final issue was who had control to cancel the event. The plaintiff argued that it was solely under the control of the defendant.

The control asserted is that appellant was included with the use of the facilities, and appellees retained the exclusive ability to cancel or postpone the triathlon. However, no direction occurred. It can only be argued that appellee possessed a general authority to cancel or postpone.

None of those arguments were persuasive with the court.

The facts in the case sub judice indicate that Roger Chapple [plaintiff] chose to work outside and felt that no danger existed. Roger Chapple believed that park rules provided that he waits in a vehicle if a weather danger existed, even though Mr. Hart [unknown person] disputes the existence of such a policy in his deposition. As stated before, Roger Chapple had no contact with appellees and nothing in any deposition supports direction by appellees.

Because the plaintiff was an employee of ODNR and not of the race organization, it was clear that the liability for the injury had to be ODNRs. Control of the event was vested with several groups, and the plaintiff was still under the control of ODNR. “We must disagree with the Assignment of Error and conclude, as the trial court did, that there is insufficient support for the existence of a duty, control of the activities of appellant, nor negligence of appellee.”

So Now What?

If you are organizing events, you should always clarify who is responsible for what and who will ensure what. Here, clarification that ODNR is responsible for ODNR’s employees might have eliminated this issue.

However, who else would ever be in control of someone else’s employee is interesting. If someone is wearing a uniform, that person is the responsibility of the person issuing the uniform.

Another option is to always have volunteers sign a release. All volunteers should sign a release just so volunteers do not sue other volunteers.

This is an interesting case and possible ODNR procedures, and paperwork would not allow you to clarify the liability issues further. Government paperwork is difficult to modify. Sometimes, you just have to rely on insurance.

What do you think? Leave a comment.

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Want a job rowing a boat or motor rig in the Grand Canyon?

Hello everyone,

Poster for Grand Canyon National Park, Arizona...

Poster for Grand Canyon National Park, Arizona, USA (Photo credit: Wikipedia)

There are 2 small craft operator (whitewater boat operator) positions now open in Grand Canyon National Park. The positions opened today, June 17th and will be open for applications until July 12th. The positions have a 4 year term. You can access the job posting/descriptions/requirements and apply online at:

https://www.usajobs.gov/GetJob/ViewDetails/345603000

This information came from the Grand Canyon River Guides Association. If you love the Grand Canyon, you should be a member.

 

GCRG BW LOGO High Res (2)