One paragraph would have eliminated this lawsuit.

Badly written release and a bad attempt to tie two documents together almost cost the defendant outfitter.

Hamric v. Wilderness Expeditions, Inc

State: Colorado, United States Court of Appeals, Tenth Circuit

Plaintiff: Alicia Hamric, individually, as representative of the Estate of Robert Gerald Hamric, and as next friend of Ava Hamric, a minor

Defendant: Wilderness Expeditions, Inc.

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the defendant

Year: 2021

Summary

Deceased died while repelling with the defendant and surviving spouse sued Colorado company in Colorado but attempted to use Texas law, where the release was signed, as a way to void the release.

Facts

Members of the Keller Church of Christ in Keller, Texas, scheduled an outdoor excursion to Colorado, contracting with WEI for adventure planning and guide services. WEI is incorporated in Colorado and has its headquarters in Salida, Colorado. Jamie Garner served as the coordinator for the church group and the point-of-contact between the church members and WEI. The experience WEI provided included guides taking participants rappelling. WEI required all participants, before going on the outdoor excursion, to complete and initial a “Registration Form” and complete and sign a “Medical Form.”

WEI made the forms available to Mr. Garner for downloading and completion by the individual church members several months prior to the booked trip. Mr. Hamric initialed both blanks on the Registration Form and signed the Medical Form, dating it April 5, 2017. Andrew Sadousky, FNP-C, completed and signed the “Physician’s Evaluation” section of the Medical Form, certifying that Mr. Hamric was medically capable of participating in the outdoor activities listed on the form, including rappelling. Mr. Hamric’s signed forms were delivered to WEI upon the church group’s arrival in Colorado in July 2017.

After spending a night on WEI property, WEI guides took the church group, including Mr. Hamric, to a rappelling site known as “Quarry High.” Because the rappelling course had a section that WEI guides considered “scary,” the guides did not describe a particular overhang at the Quarry High site during the orientation session or before taking the church group on the rappelling course. [emphasize added]

Several members of the church group successfully descended Quarry High before Mr. Hamric attempted the rappel. As Mr. Hamric worked his way down the overhang portion of the course, he became inverted and was unable to right himself. Efforts to rescue Mr. Hamric proved unsuccessful, and he died of positional asphyxiation.

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

The Tenth Circuit Court of Appeals is an appellate court that sits in Denver. The Tenth Circuit hears cases from Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming federal district courts. The court, consequently, hears a few appeals of recreation cases because of Colorado, Utah, New Mexico and Wyoming recreation activities.

This appealed covered four different legal issues. Three of the issues were procedural and won’t be reviewed here. The fourth was the dismissal of the case by the lower-court magistrate on a motion for summary judgement because of the release.

The plaintiff argued the release should be read using Texas law because the release was read and signed in Texas.

There was no Jurisdiction and Venue Clause in the Release!

The defendant had the deceased sign two forms. One was a release, and the second was a medical form. Neither form had a venue or jurisdiction clause. Having a medical information formed signed is a quick give away that the defendant does not understand the legal issues involved. The defendant wrote both forms, so they conflicted with each other in some cases and attempted to tie the forms together. Neither really worked.

The plaintiff argued the forms were one because they conflicts would have made both forms basically invalid.

Further, language on the Medical Form is conflicting and ambiguous as to whether the two forms comprise a single agreement: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document. I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

Both the italicized language and the use of “forms” in the plural to describe the agreement support the conclusion that the Registration Form and the Medical Form are a single agreement. But the underlined language, using “form” in the singular, suggests the forms might constitute separate agreements. Otherwise, the singular use of “form” would suggest the unlikely result that a participant could not alter the wording of the Medical Form but could alter the wording of the Registration Form.

However, after a lengthy review, the court found the forms were two different documents and ignored the medical form and the release like language in it.

We conclude, however, that this dispute of fact is not material to resolution of the primarily legal question regarding whether Mr. Hamric entered into a valid liability release with WEI.

The next issue is what law should apply to determine the validity of the release. Choice of laws is a compete course you can take in law school. I still have my Choice of Laws’ textbook after all these years because it is a complicated subject that hinges on minutia in some cases to determine what court will hear a case and what law will be applied.

The case was filed in the Federal Court covering Colorado. Since the defendant was not a Texas business or doing business in Texas, the lawsuit needed to be in the defendant’s state. Federal Court was chosen because disputes between citizens of two states should be held in a neutral court, which is the federal courts. A Texan might not feel they are getting a fair deal if they have to sue in a Colorado state court. That is called the venue. What court sitting where will hear the case.

If the defendant had operated in Texas, been served in Texas or had a history of actively looking for clients in Texas this would have been a Texas lawsuit, probably with a different outcome.

So, the decision on what court to sue was somewhat limited. However, that is not the end. Once the court is picked, venue, the next argument is what law will be applied to the situation. The Plaintiff argued Texas Law. Texas has stringent requirements on releases. If Texas law was applied to the release, there was a chance the release would be void under Texas law. The defendant argued Colorado law, which has much fewer requirements for releases.

Ms. Hamric further contends that under contract principles in the Restatement (Second) of Conflicts of Laws, Texas law applies because Mr. Hamric was a Texas resident who completed the Registration Form and the Medical Form while in Texas.

Here is the court’s analysis on what states laws should apply.

A more specific section of the Restatement addressing contracts lacking a choice-of-law provision provides additional guidance: (1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6. (2) In the absence of an effective choice of law by the parties . . ., the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

It is not a slam dunk for Colorado law. In this case, the plaintiff made a very good argument that Texas law should apply. The deceased was a Texas resident recruited in Texas by the defendant. The release had been given to the deceased in Texas, and he signed it in Texas. If the analysis ended there Texas law would have applied.

However, there was more to the investigation the court is required to do.

We conclude that, under the Restatement, a Colorado court would apply Colorado law to determine the validity and enforceability of the liability release relied upon by WEI. First looking at § 6 of the Restatement, the liability release was drafted by a Colorado corporation to cover services provided exclusively in Colorado.

Honestly, the trial court and appellate court bent over backwards to help this defendant.

This argument switched the discussion from applying Texas law to Colorado law.

Applying out-of-state law to interpret the liability release would hinder commerce, as it would require WEI and other outdoor-recreation companies to know the law of the state in which a given participant lives. Such a rule would place a significant burden on outdoor-recreation companies who depend on out-of-state tourists for revenue because it would require a company like WEI to match the various requirements of the other forty-nine states. This approach would not give WEI the benefit of having logically molded its liability release to comply with Colorado law, the law of the state where WEI does business. Furthermore, Ms. Hamric’s primary argument for applying Texas law is that Mr. Hamric signed the forms in Texas. But a rule applying out-of-state law on that basis is likely to deter WEI from furnishing the liability release until a participant enters Colorado. And, while not providing participants the forms until arrival in Colorado might lessen WEI’s liability exposure under out-of-state law; such a practice would not benefit participants because it would pressure participants into a last-minute decision regarding whether to sign the liability release after having already traveled to Colorado for the outdoor excursion.

It is significant to note that the court looked at the issue of waiting until customers arrive in the state of Colorado to have them sign the release. The court intimated that doing so would put pressure on them to sign after already traveling to Colorado. Legally, that could be argued as duress, which voids a release or contract.

It is these small statements in decisions that must be watched and remembered so that in the future they are not used to void a release. You must have your clients sign a release as soon as possible and waiting until they travel to Colorado maybe to late to have the release survive in court.

In a rare statement, the court also commented on the outdoor recreation industry in Colorado and the need for releases.

Colorado also has a strong interest in this matter. Colorado has a booming outdoor-recreation industry, in the form of skiing, hiking, climbing, camping, horseback riding, and rafting excursions. Colorado relies on tax receipts from the outdoor-recreation industry. And while many out-of-state individuals partake in these activities within Colorado, they often purchase their tickets or book excursion reservations before entering Colorado. If we applied Texas law because it is the state where Mr. Hamric signed the liability release, we would essentially allow the other forty-nine states to regulate a key industry within Colorado.

The final analysis the court discussed on the issue was the legal issue of binding effect. When a contract does define what is required to create the contract, such as the signature of both parties to the contract, then the last act that gives life or that is necessary to form the contract is considered the point when the contract was valid. Where that last act occurs is the place where the contract should be litigated and the law that should be applied to the contract. Here the last act occurred when the deceased was in Colorado and the church group he was with, handed over the signed releases.

Further, the considerations and contacts listed in § 188 of the Restatement favor application of Colorado law. As to the first contact, in accord with the commentary, a contract is formed in “the place where occurred the last act necessary to give the contract binding effect.” Here, that act occurred when the church group provided the forms to WEI in Colorado; for, before the forms were provided to WEI, Mr. Hamric had not conveyed his acceptance to WEI, and WEI did not know whether Mr. Hamric would complete the forms and agree to the liability release.

The plaintiff then argued the release did not meet the requirements of Colorado or Texas law. The plaintiff argued the contract was ambiguous. Colorado has five factors that must be considered to determine if a contract is ambiguous.

In general accord with this statement, federal district courts in Colorado have discerned five factors from Colorado Supreme Court decisions to determine if a release is unambiguous: (1) “whether the agreement is written in simple and clear terms that are free from legal jargon”; (2) “whether the agreement is inordinately long or complicated”; (3) “whether the release specifically addresses the risk that caused the plaintiff’s injury”; (4) “whether the contract contains any emphasis to highlight the importance of the information it contains”; and (5) “whether the plaintiff was experienced in the activity making risk of that particular injury reasonably foreseeable.”

The court reviewed the release and found it was not ambiguous. Only one factor the last one, whether the plaintiff has experience in the activity, was possible and the Colorado Supreme Court had weakened that requirement.

The sole factor clearly cutting against enforcement of the liability release is Mr. Hamric’s lack of rappelling experience. However, as noted above, the Colorado Supreme Court has not found this consideration to be dispositive against the enforcement of a liability waiver.

So, the court first determined that the release should be reviewed under Colorado law and then determined that under Colorado law, the release was valid and stopped the claims of the plaintiffs.

Finally, I have to comment about one incredibly stupid move on the part of the defendant. As quoted in the facts and by the court.

Because the rappelling course had a section that WEI guides considered “scary,” the guides did not describe a particular overhang at the Quarry High site during the orientation session or before taking the church group on the rappelling course.

Besides eliminating the defense of assumption of the risk by doing this, you have created a situation where you have increased the chance of a participant getting injured or as in this case died. You cannot assume a risk which you don’t know about.

First, what are you doing taking beginners rappelling over an overhang. This is not a beginner move.

Second, you have a scary section you CANNOT hide it from people, especially if they cannot see it or understand it. You MUST inform your participants of the risk.

Third, the defendant did not tell the deceased how to correct the problem if they found themselves in a compromised position. That is the main goal of any safety talk, to tell your participants how to keep themselves safe and how to rescue or be rescue.

Fourth, you need to hire new guides because it is clear your current guides do not understand the gravity of the situation, let alone the legal liability, of doing this to someone.

So Now What?

However, for one simple paragraph, or actually, one sentence, this lawsuit would have never gotten off the ground. The issue is a jurisdiction and venue clause. If the release would have stated any lawsuit must be in Colorado and Colorado law must apply, this lawsuit would not have had a chance.

Of special note in writing a release in Colorado and a few other states, if you do not outline or identify the possible risks to the participant signing the release, the release may be ambiguous. This issue is facing more scrutiny by the plaintiffs, and you are seeing more courts have to deal with the issue. On top of that, failing to identify the possible risks, eliminates the defense of assumption of the risk, which might be needed.

The other issue that the court waded through that could have done the defendant in was the competing language in the two contracts. First why collect information you cannot use, such as medical information? Only a physician and the participant have the ability to make the decision, as to whether or not they can medically undertake an activity. If you, the activity, business or program, decide a person can’t participate because of a medical issue, you are practicing medicine without a license which is a crime.

That does not mean you cannot collect information that you might need if a participant is injured.

Worse the above in this case, was both documents attempted to include release language and neither agreement had language stated which one was controlling. If you have your participants sign multiple documents you need to make sure that the release is not voided by another contract. You need to make sure one contract is primary, and the other contact has nothing in it that cancels, modifies or revokes the release.

What do you think? Leave a comment.

Copyright 2021 Recreation Law (720) 334 8529

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Hamric v. Wilderness Expeditions, Inc.,

Hamric v. Wilderness Expeditions, Inc.

ALICIA HAMRIC, individually, as representative of the Estate of Robert Gerald Hamric, and as next friend of Ava Hamric, a minor, Plaintiff – Appellant,

v.

WILDERNESS EXPEDITIONS, INC., Defendant-Appellee.

No. 20-1250

United States Court of Appeals, Tenth Circuit

July 26, 2021

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CV-01442-NYW)

William J. Dunleavy, Law Offices of William J. Dunleavy, Allen, Texas (Stephen A. Justino, Boesen Law, Denver, Colorado, on the briefs), for Plaintiff – Appellant.

Malcolm S. Mead (Peter C. Middleton and Jacob R. Woods with him on the brief), Hall & Evans, Denver, Colorado, for Defendant – Appellee.

Before TYMKOVICH, Chief Judge, HOLMES, and McHUGH, Circuit Judges.

McHUGH, CIRCUIT JUDGE

Gerald Hamric, a Texas resident, joined a church group on an outdoor recreation trip to Colorado. The church group employed the services of Wilderness Expeditions, Inc. (“WEI”) to arrange outdoor activities. Before the outdoor adventure commenced, WEI required each participant, including Mr. Hamric, to complete a “Registration Form” and a “Medical Form.” On the first day, WEI led the church group on a rappelling course. In attempting to complete a section of the course that required participants to rappel down an overhang, Mr. Hamric became inverted. Attempts to rescue Mr. Hamric proved unsuccessful, and he died.

Alicia Hamric, Mr. Hamric’s wife, sued WEI for negligence. WEI moved for summary judgment, asserting the Registration Form and the Medical Form contained a release of its liability for negligence. Ms. Hamric resisted WEI’s motion for summary judgment in four ways. First, Ms. Hamric moved for additional time to conduct discovery under Federal Rule of Civil Procedure 56(d). Second, Ms. Hamric moved for leave to amend her complaint to seek exemplary damages based on willful and wanton conduct. Third, Ms. Hamric filed a motion for leave to disclose an expert out of time. Fourth, Ms. Hamric argued Texas law controlled the validity of the purported liability release in the Registration Form and the Medical Form, and additionally that the release was not conspicuous as required by Texas law.

In a single order, a magistrate judge addressed each of the pending motions. The magistrate judge first declined to grant leave to amend the complaint due to Ms. Hamric’s failure to (1) sustain her burden under Federal Rule of Civil Procedure 16(b) because the deadline for amendments had passed; and (2) make out a prima facie case of willful and wanton conduct as required by Colorado law to plead a claim seeking exemplary damages. Next, the magistrate judge concluded WEI was entitled to summary judgment, holding the liability release was valid under both Colorado law and Texas law. Finally, the magistrate judge denied as moot Ms. Hamric’s motions for additional discovery and to disclose an expert out of time.

We affirm the magistrate judge’s rulings. As to Ms. Hamric’s motion for leave to amend, a party seeking to amend a pleading after the deadline in a scheduling order for amendment must satisfy the standard set out by Federal Rule of Civil Procedure 16(b). But Ms. Hamric concedes she has never sought to satisfy the Rule 16(b) standard. Turning to the discovery motions, where this case hinges on the validity of the liability release and all facts necessary to this primarily legal issue appear in the record, we reject Ms. Hamric’s contentions that further discovery or leave to belatedly disclose an expert were warranted. Finally, while the magistrate judge’s summary judgment analysis was not free of error, we apply de novo review to that ruling. And, under de novo review, we conclude (1) relying on contract law to resolve the choice-of-law issue, as argued for by the parties, Colorado law, rather than Texas law, controls whether the Registration Form and the Medical Form contain a valid liability release; and (2) the forms contain a valid release for negligence by WEI, barring Ms. Hamric’s action.

I. BACKGROUND

A. The Rappelling Excursion, Mr. Hamric’s Death, and the Liability Release

Members of the Keller Church of Christ in Keller, Texas, scheduled an outdoor excursion to Colorado, contracting with WEI for adventure planning and guide services. WEI is incorporated in Colorado and has its headquarters in Salida, Colorado. Jamie Garner served as the coordinator for the church group and the point-of-contact between the church members and WEI. The experience WEI provided included guides taking participants rappelling. WEI required all participants, before going on the outdoor excursion, to complete and initial a “Registration Form” and complete and sign a “Medical Form.”[ 1]

The Registration Form has three sections. The first section requires the participant to provide personally identifiable information and contact information. The second section is entitled “Release of Liability & User Indemnity Agreement for Wilderness Expeditions, Inc.” App. Vol. I at 57, 83.[ 2] The text under this bold and underlined header reads, in full: I hereby acknowledge that I, or my child, have voluntarily agreed to participate in the activities outfitted by Wilderness Expeditions, Inc. I understand that the activities and all other hazards and exposures connected with the activities conducted in the outdoors do involve risk and I am cognizant of the risks and dangers inherent with the activities. I (or my child) and (is) fully capable of participating in the activities contracted for and willingly assume the risk of injury as my responsibility whether it is obvious or not. I understand and agree that any bodily injury, death, or loss of personal property and expenses thereof as a result of any, or my child’s, negligence in any scheduled or unscheduled activities associated with Wilderness Expeditions, Inc. are my responsibilities. I understand that accidents or illness can occur in remote places without medical facilities, physicians, or surgeons, and be exposed to temperature extremes or inclement weather. I further agree and understand that any route or activity chosen may not be of minimum risk, but may have been chosen for its interest and challenge. I agree to defend, indemnify, and hold harmless Wilderness Expeditions. Inc., the USDA Forest Service, Colorado Parks and Recreation Department, and any and all state or government agencies whose property the activities may be conducted on, and all of their officers, members, affiliated organizations, agents, or employees for any injury or death caused by or resulting from my or my child’s participation in the activities, scheduled and unscheduled, whether or not such injury or death was caused by my, or their, negligence or from any other cause. By signing my initials below, I certify this is a release of liability.

Id.[ 3] Immediately after this paragraph, the form reads, “Adult participant or parent/guardian initial here:(Initials).” Id. The third and final section of the form is entitled: “Adult Agreement or Parent’s/Guardian Agreement for Wilderness Expeditions, Inc.” Id. The text of this provision states: I understand the nature of the activities may involve the physical demands of hiking over rough terrain, backpacking personal and crew gear, and voluntarily climbing mountains to 14, 433 feet in elevation. Having the assurance of my, or my child’s, good health through a current physical examination by a medical doctor, I hereby give consent for me, or my child, to participate in the activities outfitted by Wilderness Expeditions, Inc. I have included in this form all necessary medical information about myself, or my child, that should be known by the leadership of the program. I assure my, or my child’s, cooperation and assume responsibility for my, or my child’s, actions. I understand that I am responsible for any medical expenses incurred in the event of needed medical attention for myself, or my child. I further agree that I will be financially responsible to repair or replace all items lost or abused by myself or my child. In the event of an emergency, I authorize my consent to any X-ray examination, medica1, dental, or surgical diagnosis, treatment, and/or hospital care advised and supervised by a physician, surgeon, or dentist licensed to practice. I understand that the designated next of kin will be contacted as soon as possible. By signing my initials below, I certify this is a release of liability.

Id. And, as with the second section, the form then provides a line for the participant or the parent or guardian of the participant to initial.

The Medical Form has four sections. The first section seeks information about the participant. The second section is entitled “Medical History.” Initially, this section asks the participant if he suffers from a list of medical conditions, including allergies, asthma, and heart trouble. If the participant does suffer from any medical conditions, the form requests that the participant explain the affirmative answer. Thereafter, the section includes the following language: Note: The staff will not administer any medications, including aspirin, Tums, Tylenol, etc. If you need any over the counter medications, you must provide them. Be sure to tell your staff members what medications you are taking. List any medications that you will have with you: Note about food: Trail food is by necessity a high carbohydrate, high caloric diet. It is high in wheat, milk products, sugar, com syrup, and artificial coloring/flavoring. If these food products cause a problem to your diet, you will be responsible for providing any appropriate substitutions and advise the staff upon arrival. * Doctor’s signature is required to participate. No other form can be substituted. By signing below a physician is verifying the medical history given above and approving this individual to participate.

Id. at 58, 84. The form then includes a section titled “Physician’s Evaluation.” Id. This section seeks certification of the participant’s medical capability to partake in the outdoor activities and asks the physician for contact information. It reads: The applicant will be taking part in strenuous outdoor activities that may include: backpacking, rappelling, hiking at 8-12, 000 feet elevation, and an all day summit climb up to 14, 433 feet elevation. This will include high altitude, extreme weather, cold water, exposure, fatigue, and remote conditions where medical care cannot be assured. The applicant is approved for participation. Physician Signature: ___ Date: ___ Physician Name: ___ Phone Number: ___ Office Address: ___ City: ___ State: ___ Zip: ___

Id. The final section of the form is entitled “Participant or Parent/Guardian Signature – All sections of these forms must be initialed or signed.” Id. The text of the section reads: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document[.] I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

Id.

WEI made the forms available to Mr. Garner for downloading and completion by the individual church members several months prior to the booked trip. Mr. Hamric initialed both blanks on the Registration Form and signed the Medical Form, dating it April 5, 2017. Andrew Sadousky, FNP-C, completed and signed the “Physician’s Evaluation” section of the Medical Form, certifying that Mr. Hamric was medically capable of participating in the outdoor activities listed on the form, including rappelling. Mr. Hamric’s signed forms were delivered to WEI upon the church group’s arrival in Colorado in July 2017.

After spending a night on WEI property, WEI guides took the church group, including Mr. Hamric, to a rappelling site known as “Quarry High.” Because the rappelling course had a section that WEI guides considered “scary,” the guides did not describe a particular overhang at the Quarry High site during the orientation session or before taking the church group on the rappelling course. Id. at 203.

Several members of the church group successfully descended Quarry High before Mr. Hamric attempted the rappel. As Mr. Hamric worked his way down the overhang portion of the course, he became inverted and was unable to right himself. Efforts to rescue Mr. Hamric proved unsuccessful, and he died of positional asphyxiation.

B. Procedural History

In the District of Colorado, Ms. Hamric commenced a negligence action against WEI, sounding in diversity jurisdiction. As a matter of right, Ms. Hamric amended her complaint shortly thereafter. See Fed. R. Civ. P. 15(a)(1)(A) (permitting plaintiff to file amended complaint “as a matter of course” within twenty-one days of serving original complaint). The parties, pursuant to 28 U.S.C. § 636(c), consented to a magistrate judge presiding over the case. WEI answered Ms. Hamric’s First Amended Complaint, in part raising the following affirmative defense: “Decedent Gerald Hamric executed a valid and enforceable liability release. Decedent Gerald Hamric also executed a medical evaluation form which Defendant relied upon. The execution of these document [sic] bars or reduces [Ms. Hamric’s] potential recovery.” Id. at 31-32.

The magistrate judge entered a Scheduling Order adopting several deadlines: (1) August 31, 2019, for amendments to the pleadings; (2) January 31, 2020, for Ms. Hamric to designate her expert witnesses; and (3) April 10, 2020, for the close of all discovery. The Scheduling Order also noted WEI’s defense based on the purported liability release, stating “[t]he parties anticipate that mediation . . . may be useful to settle or resolve the case after meaningful discovery and summary judgment briefing on the issue of the validity and enforceability of the liability release.” Id. at 38 (emphasis added). Finally, the Scheduling Order concluded with language reminding the parties that the deadlines adopted by the order “may be altered or amended only upon a showing of good cause.” Id. at 42 (italicized emphasis added).

In November 2019, after the deadline for amendments to the pleadings but before the discovery deadlines, WEI moved for summary judgment based on its affirmative defense that both the Registration Form and Medical Form contained a liability release that barred Ms. Hamric’s negligence claim. In support of its motion, WEI contended Colorado law controlled the interpretation and validity of the liability release. Ms. Hamric opposed summary judgment, arguing that because Mr. Hamric completed the forms in Texas, a Colorado court would apply Texas law and that, under Texas law, the liability release was not adequately conspicuous to be valid.

Ms. Hamric also sought to avoid disposition of WEI’s motion for summary judgment and dismissal of her action by filing three motions of her own. First, Ms. Hamric moved under Federal Rule of Civil Procedure 56(d) for additional time to conduct discovery, contending further discovery would, among other things, reveal details about Mr. Hamric’s completion of the forms and whether Colorado or Texas law should control the interpretation and validity of the purported liability release. Second, in February 2020, Ms. Hamric moved pursuant to Federal Rule of Civil Procedure 15(a), for leave to file a second amended complaint to seek exemplary damages under § 13-21-102 of the Colorado Revised Statutes based on new allegations of WEI’s willful and wanton conduct.[ 4] Ms. Hamric’s motion to amend, however, did not cite Federal Rule Civil Procedure 16(b) or seek leave to amend the August 31, 2019, Scheduling Order deadline for amendments to the pleadings. Third, in March 2020, Ms. Hamric moved for leave to disclose out of time a “‘Rappelling/Recreational Activities Safety’ expert.” App. Vol. II at 37. Ms. Hamric contended the expert’s opinions about the training, knowledge, and rescue efforts of the WEI guides supported her contention in her proposed second amended complaint that WEI acted in a willful and wanton manner.

The magistrate judge disposed of the four pending motions in a single order. Starting with Ms. Hamric’s motion for leave to amend her complaint, the magistrate judge concluded Ms. Hamric (1) “failed to meet her burden under Rule 16(b) of establishing good cause to generally amend the operative pleading” and (2) had not made out a prima facie case of wanton and willful conduct. Id. at 94. The magistrate judge then turned to WEI’s motion for summary judgment. The magistrate judge concluded WEI’s affirmative defense raised an issue sounding in contract law such that principles of contract law controlled the choice-of-law analysis. Applying contract principles, the magistrate judge determined that although Texas law imposed a slightly more rigorous standard for enforcing a liability release, the difference between Texas law and Colorado law was not outcome-determinative and the court could, therefore, apply Colorado law. The magistrate judge read Colorado law as holding that a liability release is valid and enforceable “so long as the intent of the parties was to extinguish liability and this intent was clearly and unambiguously expressed.” Id. at 106 (citing Heil Valley Ranch v. Simkin, 784 P.2d 781, 785 (Colo. 1989)). Applying this standard, the magistrate judge held the liability release used clear and simple terms such that, even though Mr. Hamric was inexperienced at rappelling, the release was valid and foreclosed Ms. Hamric’s negligence claim. Therefore, the magistrate judge granted WEI’s motion for summary judgment. And, having denied Ms. Hamric’s motion for leave to amend and granted WEI’s motion for summary judgment, the magistrate judge denied both of Ms. Hamric’s discovery motions as moot.

Ms. Hamric moved for reconsideration, which the magistrate judge denied. Ms. Hamric timely appealed.

II. DISCUSSION

On appeal, Ms. Hamric contests the denial of her motion for leave to amend and the grant of summary judgment to WEI. Ms. Hamric also tacitly challenges the magistrate judge’s denial of her discovery motions. We commence our analysis with Ms. Hamric’s motion for leave to amend, holding the magistrate judge did not abuse her discretion in denying the motion where the motion was filed after the Scheduling Order’s deadline for amendments to pleadings and Ms. Hamric did not attempt to satisfy Federal Rule of Civil Procedure 16(b)’s standard for amending a deadline in a scheduling order. Next, we discuss Ms. Hamric’s two discovery motions, concluding the magistrate judge did not abuse her discretion by denying the motions because (1) WEI’s motion for summary judgment presented a largely legal issue on which all facts necessary for resolution already appeared in the record; and (2) consideration of the proposed expert’s opinions potentially capable of supporting allegations of willful and wanton conduct was mooted upon Ms. Hamric failing to satisfy Rule 16(b)’s standard for amending her complaint to allege such conduct. Finally, we analyze WEI’s motion for summary judgment. Although the magistrate judge’s decision was not free of error, the errors are not outcome determinative on appeal given our de novo standard of review. Exercising de novo review, we conclude Colorado law governs the validity of the liability release. And considering the entirety of both the Registration Form and the Medical Form, we conclude the liability release satisfies the factors in Colorado law for enforceability. Therefore, we affirm the magistrate judge’s grant of summary judgment.

A. Ms. Hamric’s Motion for Leave to Amend

1. Standard of Review

“We review for abuse of discretion a district court’s denial of a motion to amend a complaint after the scheduling order’s deadline for amendments has passed.” Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015). “An abuse of discretion occurs where the district court clearly erred or ventured beyond the limits of permissible choice under the circumstances.” Id. (quotation marks omitted). “A district court also abuses its discretion when it issues an arbitrary, capricious, whimsical or manifestly unreasonable judgment.” Id. (internal quotation marks omitted).

2. Analysis

“A party seeking leave to amend after a scheduling order deadline must satisfy both the [Federal Rule of Civil Procedure] 16(b) and Rule 15(a) standards.” Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 989 (10th Cir. 2019). Under the former of those two rules, “[a] schedule may be modified only for good cause and with the judge’s consent.” Fed.R.Civ.P. 16(b)(4). To satisfy this standard a movant must show that “the scheduling deadlines cannot be met despite the movant’s diligent efforts.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014) (internal quotation marks omitted). We have observed the “good cause” standard for amending deadlines in a scheduling order is “arguably [a] more stringent standard than the standards for amending a pleading under Rule 15.” Bylin v. Billings, 568 F.3d 1224, 1231 (10th Cir. 2009).

In moving for leave to file a second amended complaint, Ms. Hamric discussed Federal Rule of Civil Procedure 15 and how Colorado law did not permit a plaintiff to seek exemplary damages until after commencement of discovery. But Ms. Hamric did not advance an argument for amending the Scheduling Order as required by Rule 16(b). Nor does Ms. Hamric cite Rule 16(b) in her briefs on appeal, much less explain how she satisfied, in her papers before the magistrate judge, the Rule 16(b) standard. In fact, Ms. Hamric conceded at oral argument that, before the magistrate judge, she sought only to amend her complaint and “did not seek to amend the scheduling order.” Oral Argument at 7:42-7:46; see also id. at 7:31-9:10. Ms. Hamric also conceded at oral argument that she had not advanced an argument on appeal regarding satisfying Rule 16(b).

This omission by Ms. Hamric is fatal to her argument. Specifically, when a party seeking to amend her complaint fails, after the deadline for amendment in a scheduling order, to present a good cause argument under Rule 16(b), a lower court does not abuse its discretion by denying leave to amend. Husky Ventures, Inc. v. B55 Invs. Ltd., 911 F.3d 1000, 1019-20 (10th Cir. 2018). Even if a party who belatedly moves for leave to amend a pleading satisfies Rule 15(a)’s standard, the party must also obtain leave to amend the scheduling order. But Rule 16(b) imposes a higher standard for amending a deadline in a scheduling order than Rule 15(a) imposes for obtaining leave to amend a complaint. Thus, as Husky Ventures suggests, a party’s ability to satisfy the Rule 15(a) standard does not necessitate the conclusion that the party could also satisfy the Rule 16(b) standard. Id. at 1020; see also Bylin, 568 F.3d at 1231 (observing that Rule 16(b) imposes “an arguably more stringent standard than the standards for amending a pleading under Rule 15”). Accordingly, where Ms. Hamric did not attempt to satisfy the Rule 16(b) standard for amending the Scheduling Order, we affirm the district court’s denial of Ms. Hamric’s motion for leave to amend.

B. Ms. Hamric’s Discovery Motions

After WEI moved for summary judgment, Ms. Hamric filed a pair of discovery-related motions-a motion for additional discovery before disposition of WEI’s motion for summary judgment and a motion to disclose an expert out of time. The magistrate judge denied both motions as moot. After stating the applicable standard of review, we consider each motion, affirming the magistrate judge’s rulings.

1. Standard of Review

We review the denial of a Federal Rule of Civil Procedure 56(d) motion for additional discovery for an abuse of discretion. Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184, 1192 (10th Cir. 2015). Likewise, we review the denial of a motion to revisit a scheduling order and allow the disclosure of an expert out of time for an abuse of discretion. Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1253-54 (10th Cir. 2011). “We will find an abuse of discretion when the district court bases its ruling on an erroneous conclusion of law or relies on clearly erroneous fact findings.” Ellis, 779 F.3d at 1192 (internal quotation marks omitted). “A finding of fact is clearly erroneous if it is without factual support in the record or if, after reviewing all of the evidence, we are left with the definite and firm conviction that a mistake has been made.” Id. (quotation marks omitted).

2. Analysis

a. Motion for additional discovery

Before the April 10, 2020, deadline for discovery, WEI filed its motion for summary judgment based on the liability release. Ms. Hamric moved under Federal Rule of Civil Procedure 56(d) to delay resolution of WEI’s motion for summary judgment, asserting additional discovery would allow her to learn further information about the liability release. The magistrate judge denied the motion as moot, concluding further discovery was not needed to assess the validity of the liability release.

Under Rule 56(d), a party opposing a motion for summary judgment may seek additional time for discovery. To do so, a party must “submit an affidavit (1) identifying the probable facts that are unavailable, (2) stating why these facts cannot be presented without additional time, (3) identifying past steps to obtain evidence of these facts, and (4) stating how additional time would allow for rebuttal of the adversary’s argument for summary judgment.” Cerveny v. Aventis, Inc., 855 F.3d 1091, 1110 (10th Cir. 2017). “[S]ummary judgment [should] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986). “Requests for further discovery should ordinarily be treated liberally.” Cerveny, 855 F.3d at 1110. “But relief under Rule 56(d) is not automatic.” Id. And Rule 56’s provision allowing a non-moving party to seek additional discovery before disposition on a motion for summary judgment “is not a license for a fishing expedition.” Lewis v. City of Ft. Collins, 903 F.2d 752, 759 (10th Cir. 1990); see also Ellis, 779 F.3d at 1207-08 (affirming denial of Rule 56(d) motion where party “required no further discovery to respond to the . . . summary-judgment motion” and additional discovery sought was speculative).

Through the affidavit supporting her Rule 56(d) motion, Ms. Hamric sought four areas of additional discovery. First, she sought discovery on “the drafting of the purported liability release forms” and the meaning of language on the forms. App. Vol. I at 94. Regardless of whether Colorado or Texas law applies, the four corners of the Registration Form and Medical Form, not WEI’s thought process when drafting the forms, controls the validity of the liability release. See B & B Livery, Inc. v. Riehl, 960 P.2d 134, 138 (Colo. 1998) (requiring that intent of parties to extinguish liability be “clearly and unambiguously expressed” (quoting Heil Valley Ranch, 784 P.2d at 785)); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993) (“[A] party seeking indemnity from the consequences of that party’s own negligence must express that intent in specific terms within the four corners of the contract.”). Therefore, the drafting process employed by WEI and its understanding of the language of the forms is not relevant to whether the forms included sufficiently specific language to foreclose a claim for negligence.

Second, Ms. Hamric sought to discover information about WEI’s process for distributing the forms and how the church group members, including Mr. Hamric, completed and submitted the forms. Ms. Hamric also requested time to discover matters related to the choice-of-law issue, including the “place of contracting,” “the place of performance,” and “the domicile, residence nationality, place of incorporation and place of business of the parties.” App. Vol. I at 95. Information on these matters, however, was known to Ms. Hamric prior to the magistrate judge’s summary judgment ruling. For instance, the record shows Mr. Hamric received and completed the forms in Texas a few months before the WEI-led excursion and that the church group provided WEI the completed forms upon its arrival at WEI’s location in Colorado. Accordingly, there was no need to delay summary judgment proceedings to discover matters already known to the parties. See Ellis, 779 F.3d at 1207-08.

Third, Ms. Hamric, as part of a challenge to the authenticity of the forms, initially sought to discover information regarding anomalies and alterations on the forms attached to WEI’s motion for summary judgment, as well as evidence of fraud by WEI. Subsequent to Ms. Hamric filing her motion for additional discovery, WEI provided her the original forms signed by Mr. Hamric, and she withdrew her challenge to the authenticity of the forms. Accordingly, by the time the district court ruled on WEI’s motion for summary judgment and Ms. Hamric’s motion for additional discovery, the requests for discovery regarding the authenticity of the forms was moot.

Fourth, Ms. Hamric sought time to discover “evidence of willful and wanton conduct by Defendant WEI and/or by its agents, servants and/or employees.” Id. Discovery on this matter, however, became moot with the magistrate judge’s denial of Ms. Hamric’s motion for leave to amend her complaint to seek exemplary damages and add allegations of willful and wanton conduct, a ruling we affirm. See supra at 12-14, Section II(A).

Having considered each additional discovery request advanced by Ms. Hamric, we conclude the magistrate judge did not abuse her discretion by ruling on WEI’s motion for summary judgment without permitting Ms. Hamric additional time for discovery. Accordingly, we affirm the magistrate judge’s denial of Ms. Hamric’s Rule 56(d) motion.

b. Motion for leave to disclose expert out of time

Ms. Hamric moved for leave to disclose a “‘Rappelling/Recreational Activities Safety’ expert” out of time. App. Vol. II at 37. Attached to the motion was a Federal Rule of Civil Procedure 26(a)(2) expert disclosure, offering opinions about the alleged negligent and/or willful and wanton conduct of WEI and its employees. The magistrate judge denied this motion as moot. Considering the magistrate judge’s other rulings and our holdings on appeal, we conclude the magistrate judge did not abuse her discretion. Any opinion offered by the expert as to willful and wanton conduct lost relevance with the denial of Ms. Hamric’s motion for leave to amend her complaint to add allegations of willful and wanton conduct and to seek exemplary damages-a ruling we affirmed supra at 12-14, Section II(A). And the expert’s opinion about WEI acting in a negligent manner lost relevance upon the magistrate judge concluding the liability release was valid and barred Ms. Hamric from proceeding on her negligence claim-a ruling we affirm infra at 19-37, Section II(C). Accordingly, we affirm the magistrate judge’s denial of Ms. Hamric’s motion for leave to disclose an expert out of time.

C. WEI’s Motion for Summary Judgment

After stating our standard of review, we discuss Ms. Hamric’s contentions that the magistrate judge (1) applied the wrong standard when considering WEI’s affirmative defense based on the liability release and (2) resolved issues of disputed fact in favor of WEI. Although we conclude the magistrate judge’s ruling is not free of error, the errors do not bind us because we need not repeat them when conducting our de novo review of the grant of summary judgment. Thus, we proceed to consider the validity of the liability release. In conducting our analysis, we hold that, where the parties contend contract principles provide the framework for our choice-of-law analysis, Colorado law governs the validity of the release.[ 5] And we conclude that, under Colorado law, the liability release is valid and enforceable so as to foreclose Ms. Hamric’s negligence claim. Therefore, we affirm the magistrate judge’s grant of summary judgment.

1. Standard of Review

We review the district court’s rulings on summary judgment de novo. Universal Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir. 2016). Summary judgment is appropriate if “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); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson, 477 U.S. at 250. “In reviewing a grant of summary judgment, we need not defer to factual findings rendered by the district court.” Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1180 (10th Cir. 2018) (internal quotation marks omitted). For purposes of summary judgment, “[t]he nonmoving party is entitled to all reasonable inferences from the record.” Water Pik, Inc. v. Med-Sys., Inc., 726 F.3d 1136, 1143 (10th Cir. 2013). Finally, “we can affirm on any ground supported by the record, so long as the appellant has had a fair opportunity to address that ground.” Alpine Bank v. Hubbell, 555 F.3d 1097, 1108 (10th Cir. 2009) (internal quotation marks omitted).

2. Alleged Errors by the Magistrate Judge

Ms. Hamric argues the magistrate judge (1) applied the incorrect standard when considering WEI’s affirmative defense and (2) resolved disputed issues of material fact in favor of WEI. We consider each contention in turn.

a. Standard applicable to affirmative defenses

Ms. Hamric contends the magistrate judge announced an incorrect standard of review and impermissibly shifted evidentiary burdens onto her, as the non-moving party. The disputed language in the magistrate judge’s opinion states: When, as here, a defendant moves for summary judgment to test an affirmative defense, it is the defendant’s burden to demonstrate the absence of any disputed fact as to the affirmative defense asserted. See Helm v. Kansas, 656 F.3d 1277, 1284 (10th Cir. 2011). Once the defendant meets its initial burden, the burden shifts to the nonmovant to put forth sufficient evidence to demonstrate the essential elements of her claim(s), see Anderson, 477 U.S. at 248; Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999), and to “demonstrate with specificity the existence of a disputed fact” as to the defendant’s affirmative defense, see Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997).

App. Vol. II at 100 (emphasis added). Ms. Hamric takes issue with the emphasized phrase.

Nothing on the pages the magistrate judge cited from Anderson and Simms requires a plaintiff responding to a motion for summary judgment based on an affirmative defense to identify evidence supporting each element of her claim. See Anderson, 477 U.S. at 248 (requiring nonmoving party in face of “properly supported motion for summary judgment” to “‘set forth specific facts showing that there is a genuine issue for trial'” (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968))); Simms, 165 F.3d at 1326, 1328 (discussing summary judgment standard in context of employment discrimination claim and burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). In fact, the standard announced by the magistrate judge would unnecessarily require a plaintiff, in response to a motion for summary judgment based on an affirmative defense, to identify evidence supporting elements of her claim never drawn into question by the defendant. Placing such a burden on a plaintiff is all the more problematic where, as here, the parties contemplated a bifurcated summary judgment process initially focused on the validity of the liability release, and WEI filed its motion for summary judgment before the close of discovery.

We have previously stated that a district court errs by requiring a party opposing summary judgment based on an affirmative defense to “establish at least an inference of the existence of each element essential to the case.” Johnson v. Riddle, 443 F.3d 723, 724 n.1 (10th Cir. 2006) (quotation marks omitted). We reaffirm that conclusion today. To defeat a motion for summary judgment, a plaintiff, upon the defendant raising and supporting an affirmative defense, need only identify a disputed material fact relative to the affirmative defense. Id.; Hutchinson, 105 F.3d at 564; see also Leone v. Owsley, 810 F.3d 1149, 1153-54 (10th Cir. 2015) (discussing defendant’s burden for obtaining summary judgment based on an affirmative defense). Only if the defendant also challenges an element of the plaintiff’s claim does the plaintiff bear the burden of coming forward with some evidence in support of that element. See Tesone, 942 F.3d at 994 (“The party moving for summary judgment bears the initial burden of showing an absence of any issues of material fact. Where . . . the burden of persuasion at trial would be on the nonmoving party, the movant may carry its initial burden by providing ‘affirmative evidence that negates an essential element of the nonmoving party’s claim’ or by ‘demonstrating to the Court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.’ If the movant makes this showing, the burden then shifts to the nonmovant to ‘set forth specific facts showing that there is a genuine issue for trial.'” (first quoting Celotex Corp., 477 U.S. at 330, then quoting Anderson, 477 U.S. at 250)); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (if summary judgment movant carries its initial burden of showing a lack of evidence in support of an essential element of plaintiff’s claim, “the burden shifts to the nonmovant to go beyond the pleadings and set forth specific facts” supporting the essential element (internal quotation marks omitted)).

The magistrate judge’s erroneous statement regarding Ms. Hamric’s burden, however, does not foreclose our ability to further review the grant of summary judgment. Rather, in accord with the applicable de novo standard of review, we review WEI’s motion for summary judgment under the standard that “should have been applied by the [magistrate judge].”[ 6] Nance v. Sun Life Assurance Co. of Can., 294 F.3d 1263, 1266 (10th Cir. 2002) (quotation marks omitted).

b. Resolution of disputed issues of material fact

Ms. Hamric contends the magistrate judge impermissibly resolved two issues of disputed fact in WEI’s favor. We discuss each asserted factual issue in turn, concluding factual disputes existed and the magistrate judge incorrectly resolved one of the disputes against Ms. Hamric. However, even if this factual dispute were material, we may proceed to analyze the validity of the liability release after resolving the dispute in Ms. Hamric’s favor. See Lincoln, 900 F.3d at 1180 (“In reviewing a grant of summary judgment, we need not defer to factual findings rendered by the district court.” (internal quotation marks omitted)).

i. Language of Registration Form and Medical Form

In moving for summary judgment, WEI’s brief contained edited versions of the Registration Form and Medical Form that focused the reader’s attention on the language most pertinent to Mr. Hamric’s participation in the outdoor excursion and the release of liability. For instance, the version of the forms in WEI’s brief left out phrases such as “(or my child)” and the accompanying properly-tensed-and-conjugated verb that would apply if the forms were completed by a parent or guardian of the participant, rather than by the participant himself. Compare App. Vol. I at 46, with id. at 57, 83.

Although WEI and Ms. Hamric attached full versions of the forms to their papers on the motion for summary judgment, the magistrate judge’s quotation of the language in the forms mirrored that which appeared in WEI’s brief. Ms. Hamric contends the magistrate judge, in not quoting the full forms, resolved a dispute of fact regarding the language of the forms in WEI’s favor. It is not uncommon for a court to focus on the pertinent language of a contract or liability release when putting forth its analysis. In this case, Ms. Hamric claims the forms should be reviewed on the whole. Although there is no indication the magistrate judge did not review the forms in their entirety, despite her use of incomplete quotations, we attach full versions of the Registration Form and Medical Form completed by Mr. Hamric as an appendix to this opinion. And we consider all the language on the forms when assessing whether the forms contain a valid liability release.

ii. Registration Form and Medical Form as single form

The magistrate judge viewed the Registration Form and the Medical Form as a single, “two-page agreement.” App. Vol. II at 103; see also id. at 101 (“Adult customers are required to execute a two-page agreement with WEI before they are permitted to participate in WEI-sponsored activities. The first page of the agreement is a ‘Registration Form’, followed by a ‘Medical Form’ on page two.”). Ms. Hamric contends the two forms are separate agreements, not a single agreement. While a jury could have concluded that the Registration Form and Medical Form were separate agreements, this dispute of fact is not material given applicable law regarding the construction of agreements that are related and simultaneously executed.

It is clear from the record that a participant needed to complete both forms before partaking in the WEI-lead excursion. Further, while the Medical Form required a signature and a date, the Registration Form required only that a participant place his initials on certain lines, suggesting the forms were part of a single agreement. However, the forms do not contain page numbers to indicate they are part of a single agreement. Further, language on the Medical Form is conflicting and ambiguous as to whether the two forms comprise a single agreement: Individuals who have not completed these forms will not be allowed to participate. I have carefully read all the sections of this agreement, understand its contents, and have initialed all sections of page 1 of this document. I have examined all the information given by myself, or my child. By the signature below, I certify that it is true and correct. Should this form and/or any wording be altered, it will not be accepted and the participant will not be allowed to participate.

App., Vol. I at 58, 84 (emphases added). Both the italicized language and the use of “forms” in the plural to describe the agreement support the conclusion that the Registration Form and the Medical Form are a single agreement. But the underlined language, using “form” in the singular, suggests the forms might constitute separate agreements. Otherwise the singular use of “form” would suggest the unlikely result that a participant could not alter the wording of the Medical Form but could alter the wording of the Registration Form.[ 7] Accord Navajo Nation v. Dalley, 896 F.3d 1196, 1213 (10th Cir. 2018) (describing the cannon of expressio unius est exclusio alterius as providing “that the ‘expression of one item of an associated group or series excludes another left unmentioned'” and that “the enumeration of certain things in a statute suggests that the legislature had no intent of including things not listed or embraced.” (quoting NLRB v. SW Gen., Inc., 137 S.Ct. 929, 940 (2017))). Thus, a reasonable jury could have found the Registration Form and the Medical Form were separate agreements.

We conclude, however, that this dispute of fact is not material to resolution of the primarily legal question regarding whether Mr. Hamric entered into a valid liability release with WEI. Under Colorado law, it is well established that a court may, and often must, construe two related agreements pertaining to the same subject matter as a single agreement. See Bledsoe v. Hill, 747 P.2d 10, 12 (Colo.App. 1987) (“If a simultaneously executed agreement between the same parties, relating to the same subject matter, is contained in more than one instrument, the documents must be construed together to determine intent as though the entire agreement were contained in a single document. Although it is desirable for the documents to refer to each other, there is no requirement that they do so.” (citing In re Application for Water Rights v. N. Colo. Water Conservancy Dist., 677 P.2d 320 (Colo. 1984); Harty v. Hoerner, 463 P.2d 313 (Colo. 1969); Westminster v. Skyline Vista Dev. Co., 431 P.2d 26 (Colo. 1967))).[ 8] Thus, although a jury could conclude the Registration Form and Medical Form technically constitute separate agreements, we consider the agreements together when determining if Mr. Hamric released WEI for its negligent acts.

3. Choice-of-Law Analysis

At the heart of WEI’s motion for summary judgment was whether Colorado or Texas law controls and whether the release is valid under the appropriate law. On appeal, Ms. Hamric contends “contract principles” control the choice-of-law analysis because WEI’s affirmative defense “was a contract issue on a purported agreement to release liability.” Opening Br. at 26-27. Ms. Hamric further contends that under contract principles in the Restatement (Second) of Conflicts of Laws, Texas law applies because Mr. Hamric was a Texas resident who completed the Registration Form and the Medical Form while in Texas. WEI agrees that if contract principles govern the choice-of-law issue, the Restatement (Second) on Conflict of Laws provides the appropriate factors for this court to consider. But WEI contends (1) the liability release is valid under both Colorado and Texas law and (2) the relevant factors in §§ 6 and 188 of the Restatement favor application of Colorado law if this court is inclined to resolve the conflict-of-law issue.

Outdoor recreation and tourism is a growing industry in Colorado, as well as several other states within our circuit. And many outdoor tourism outfitters, like WEI, require participants to complete forms containing liability releases. See Redden v. Clear Creek Skiing Corp., ___ P.3d ___, 2020 WL 7776149, at *2 (Colo.App. Dec. 31, 2020); Hamill v. Cheley Colo. Camps, Inc., 262 P.3d 945, 947-48 (Colo.App. 2011); see also Dimick v. Hopkinson, 422 P.3d 512, 515-16 (Wyo. 2018); Penunuri v. Sundance Partners, Ltd., 301 P.3d 984, 986 (Utah 2013); Beckwith v. Weber, 277 P.3d 713, 716-17 (Wyo. 2012). With the prevalence and recurrence of questions regarding the validity of liability releases in mind, and viewing the choice-of-law issue as sounding in contract law as urged by the parties, we consider whether the law of the state where the outdoor recreation company is based and the outdoor excursion occurs controls or whether the law of the state of residence of the participant controls.

a. Framework for choice-of-law analysis

“In a diversity action we apply the conflict-of-laws rules of the forum state.” Kipling v. State Farm Mut. Auto. Ins. Co., 774 F.3d 1306, 1310 (10th Cir. 2014). “This is true even when choice of law determinations involve the interpretation of contract provisions.” Shearson Lehman Brothers, Inc. v. M & L Invs., 10 F.3d 1510, 1514 (10th Cir. 1993). Accordingly, this court must look to Colorado choice-of-law rules to determine if Colorado or Texas law applies.

“Colorado follows the Restatement (Second) of Conflict of Laws (1971) . . . for both contract and tort actions,” Kipling, 774 F.3d at 1310 (citing Wood Brothers Homes, Inc. v. Walker Adjustment Bureau, 601 P.2d 1369, 1372 (Colo. 1979); First Nat’l Bank v. Rostek, 514 P.2d 314, 319-20 (Colo. 1973)). Absent a forum-state “statutory directive,” the Restatement advises a court to consider seven factors: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws: Choice-of-Law Principles § 6 (Am. L. Inst. 1971). The commentary to § 6 identifies the first factor as “[p]robably the most important function of choice-of-law rules” because choice-of-law rules are designed “to further harmonious relations between states and to facilitate commercial intercourse between them.” Id. § 6 cmt. d. Meanwhile, the second factor takes into account any special interests, beyond serving as the forum for the action, that the forum state has in the litigation. Id. § 6 cmt. e. As to the fourth factor-“the protection of justified expectations, “- the comments to § 6 note: This is an important value in all fields of the law, including choice of law. Generally speaking, it would be unfair and improper to hold a person liable under the local law of one state when he had justifiably molded his conduct to conform to the requirements of another state.

Id. § 6 cmt. g.

A more specific section of the Restatement addressing contracts lacking a choice-of-law provision provides additional guidance: (1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6. (2) In the absence of an effective choice of law by the parties . . ., the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

Restatement (Second) of Conflict of Laws: Law Governing in Absence of Effective Choice by the Parties § 188.

b. Colorado law controls

We conclude that, under the Restatement, a Colorado court would apply Colorado law to determine the validity and enforceability of the liability release relied upon by WEI. First looking at § 6 of the Restatement, the liability release was drafted by a Colorado corporation to cover services provided exclusively in Colorado. Applying out-of-state law to interpret the liability release would hinder commerce, as it would require WEI and other outdoor-recreation companies to know the law of the state in which a given participant lives. Such a rule would place a significant burden on outdoor-recreation companies who depend on out-of-state tourists for revenue because it would require a company like WEI to match the various requirements of the other forty-nine states. This approach would not give WEI the benefit of having logically molded its liability release to comply with Colorado law, the law of the state where WEI does business. Furthermore, Ms. Hamric’s primary argument for applying Texas law is that Mr. Hamric signed the forms in Texas. But a rule applying out-of-state law on that basis is likely to deter WEI from furnishing the liability release until a participant enters Colorado. And, while not providing participants the forms until arrival in Colorado might lessen WEI’s liability exposure under out-of-state law, such a practice would not benefit participants because it would pressure participants into a last-minute decision regarding whether to sign the liability release after having already traveled to Colorado for the outdoor excursion.

Colorado also has a strong interest in this matter. Colorado has a booming outdoor-recreation industry, in the form of skiing, hiking, climbing, camping, horseback riding, and rafting excursions. Colorado relies on tax receipts from the outdoor-recreation industry. And while many out-of-state individuals partake in these activities within Colorado, they often purchase their tickets or book excursion reservations before entering Colorado. If we applied Texas law because it is the state where Mr. Hamric signed the liability release, we would essentially allow the other forty-nine states to regulate a key industry within Colorado. Such an approach is impractical and illogical.

Further, the considerations and contacts listed in § 188 of the Restatement favor application of Colorado law. As to the first contact, in accord with the commentary, a contract is formed in “the place where occurred the last act necessary to give the contract binding effect.” Id. § 188 cmt. e. Here, that act occurred when the church group provided the forms to WEI in Colorado; for, before the forms were provided to WEI, Mr. Hamric had not conveyed his acceptance to WEI and WEI did not know whether Mr. Hamric would complete the forms and agree to the liability release. See Scoular Co. v. Denney, 151 P.3d 615, 619 (Colo.App. 2006) (discussing means of accepting an offer and stating “general rule that communication is required of the acceptance of the offer for a bilateral contract”). The second contact consideration is not applicable because the terms of the Medical Form precluded alteration, and there is no suggestion in the record Mr. Hamric attempted to negotiate the terms of the liability release before signing the forms. The third and fourth factors heavily favor application of Colorado law because WEI provides outdoor excursion services in Colorado, not Texas, and Mr. Hamric knew such when he signed the forms. Finally, the fifth factor is neutral because Mr. Hamric was a resident of Texas and WEI has its place of business in Colorado. With three factors favoring Colorado law, one factor inapplicable, and one factor neutral, the overall weight of the § 188 factors favors application of Colorado law.

Concluding that both § 6 and § 188 of the Restatement strongly support application of Colorado law, we hold that a Colorado court would choose to apply Colorado law, not Texas law, when determining whether the Registration Form and Medical Form contain a valid liability release. We, therefore, proceed to that analysis.

4. The Liability Release Is Valid under Colorado Law

Under Colorado law, “[a]greements attempting to exculpate a party from that party’s own negligence have long been disfavored.” Heil Valley Ranch, 784 P.2d at 783.But, such “[e]xculpatory agreements are not necessarily void,” as courts recognize that “[t]hey stand at the crossroads of two competing principles: freedom of contract and responsibility for damages caused by one’s own negligent acts.” Id. at 784.In assessing the validity of a release, “a court must consider: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981); see also Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004) (a release agreement “must be closely scrutinized to ensure that the intent of the parties is expressed in clear and unambiguous language and that the circumstances and the nature of the service involved indicate that the contract was fairly entered into”).

Ms. Hamric challenges only WEI’s ability to show “whether the intention of the parties is expressed in clear and unambiguous language.”[ 9] “To determine whether the intent of the parties is clearly and unambiguously expressed, [the Colorado Supreme Court has] examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.” Chadwick, 100 P.3d at 467. In general accord with this statement, federal district courts in Colorado have discerned five factors from Colorado Supreme Court decisions to determine if a release is unambiguous: (1) “whether the agreement is written in simple and clear terms that are free from legal jargon”; (2) “whether the agreement is inordinately long or complicated”; (3) “whether the release specifically addresses the risk that caused the plaintiff’s injury”; (4) “whether the contract contains any emphasis to highlight the importance of the information it contains”; and (5) “whether the plaintiff was experienced in the activity making risk of that particular injury reasonably foreseeable.” Salazar v. On the Trail Rentals, Inc., Civil Action No. 11-cv-00320-CMA-KMT, 2012 WL 934240, at *4 (D. Colo. Mar. 20, 2012) (deriving factors from Heil Valley Ranch, 784 P.2d at 785; Chadwick, 100 P.3d at 467); see also Eburn v. Capitol Peak Outfitters, Inc., 882 F.Supp.2d 1248, 1253 (D. Colo. 2012) (citing factors set forth in Salazar). Each and every factor, however, need not be satisfied for a court to uphold the validity of a liability release, as the Colorado Supreme Court has upheld the validity of a release where the signor was a novice at the outdoor activity in question. See B & B Livery, Inc., 960 P.2d at 138 (upholding liability release without finding every factor favored validity); id. at 139-40 (Hobbs, J., dissenting) (discussing signor’s inexperience riding horses).

The first four factors taken from Heil Valley Ranch and Chadwick support the validity of the liability release in the Registration Form and Medical Form. The forms span a mere two pages, with language pertinent to the liability release in only four sections of the forms. And those four sections are generally free of legal jargon. For instance, in detailing the scope of the release, the Registration Form required the participant/signor to “hold harmless Wilderness Expeditions, Inc. . . . for any injury or death caused by or resulting from my or my child’s participation in the activities.”[ 10] App. Vol. I at 57, 83. And this language comes after the form describes several of the risks associated with the activities, including “that accidents or illness can occur in remote places without medical facilities” and that “any route or activity chosen [by WEI] may not be of minimum risk, but may have been chosen for its interest and challenge.” Id. The Registration Form also twice places bolded emphasis on the fact that a participant was releasing WEI from liability: “By signing my initials below, I certify this is a release of liability.”Id. Finally, although not explicitly a factor identified by Colorado courts, we observe WEI provided the church group with the forms, and Mr. Hamric completed the forms, months before the booked excursion. Thus, if Mr. Hamric personally had difficulty understanding any of the language on the forms, he had ample time to contact WEI for an explanation or consult legal counsel.

The sole factor clearly cutting against enforcement of the liability release is Mr. Hamric’s lack of rappelling experience. However, as noted above, the Colorado Supreme Court has not found this consideration to be dispositive against the enforcement of a liability waiver. See B & B Livery, Inc., 960 P.2d at 138-39. And, where the liability release between Mr. Hamric and WEI is otherwise clear, specific, and uncomplicated, Mr. Hamric’s lack of experience rappelling is insufficient to defeat the release as a whole.

Accordingly, applying Colorado law, we hold the liability release is valid and its enforcement bars Ms. Hamric’s negligence claim. Therefore, we affirm the magistrate judge’s grant of summary judgment in favor of WEI.

III. CONCLUSION

We affirm the denial of Ms. Hamric’s motion for leave to amend her complaint because the magistrate judge did not abuse her discretion where Ms. Hamric did not attempt to satisfy the Federal Rule of Civil Procedure 16(b) standard for amending the Scheduling Order. We also affirm the denial of Ms. Hamric’s discovery motions, holding the magistrate judge did not abuse her discretion where the items Ms. Hamric sought to discover were either already in the record, were not necessary to determine the validity of the liability release, or went to Ms. Hamric’s effort to obtain exemplary damages, which she could not pursue given the denial of her motion for leave to amend her complaint. Finally, applying de novo review to the choice-of-law issue and the issue regarding the validity of the liability release, we conclude Colorado law applies and the release is valid and enforceable under that law. Therefore, we affirm the magistrate judge’s grant of summary judgment to WEI.

———

Notes:

[ 1]Here, we summarize the Registration Form and the Medical Form. Copies of the full forms, taken from the Appendix submitted by Ms. Hamric, are attached to this opinion. We rely on the full forms, and all of the language thereon, when conducting our analysis. Further, as discussed infra at 25-27, Section II(C)(2)(b)(ii), while the Registration Form and Medical Form could be viewed as separate forms, Colorado law requires us to consider both forms together when conducting our analysis.

[ 2]Throughout our opinion, we cite simultaneously to the Registration Form or Medical Form attached to WEI’s motion for summary judgment, App. Vol. I at 57- 58, and the Registration Form or Medical Form attached to Ms. Hamric’s response to WEI’s motion for summary judgment, id. at 83-84. Although the language of the two sets of forms are identical, the clarity of the text varies somewhat, seemingly based on the proficiency of the respective copy machines used by the parties.

[ 3]In quoting the forms, we seek to replicate the font size, spacing, and bolding of the text of the Registration Form and Medical Form completed by Mr. Hamric.

[ 4] Under Colorado law: A claim for exemplary damages in an action governed by [§ 13-21-102 of the Colorado Revised Statutes] may not be included in any initial claim for relief. A claim for exemplary damages in an action governed by this section may be allowed by amendment to the pleadings only after the exchange of initial disclosures . . . and the plaintiff establishes prima facie proof of a triable issue.

Colo. Rev. Stat. § 13-21-102(1.5)(a).

[ 5]Although Ms. Hamric’s action sounds in tort law, on appeal, the parties do not contend that tort principles provide the framework for the choice-of-law analysis regarding the liability release. Thus, we reach no conclusion as to whether Colorado law or Texas law would govern if tort principles played a role in the choice-of-law analysis.

[ 6]While the magistrate judge incorrectly stated the standard governing WEI’s motion for summary judgment, it is not apparent the magistrate judge’s analysis and conclusion that WEI was entitled to summary judgment hinged on Ms. Hamric’s failure to identify evidence supporting each element of her negligence claim. Rather, the magistrate judge correctly granted WEI summary judgment based on the liability release and WEI’s affirmative defense.

[ 7]WEI has advanced inconsistent positions on whether the Registration Form and Medical Form comprised a single agreement. Although on appeal WEI argues the forms constitute a single agreement releasing liability, WEI’s Answer to Ms. Hamric’s Complaint treats the two forms as separate agreements, stating that “[d]ecedent Gerald Hamric executed a valid and enforceable liability release. Decedent Gerald Hamric also executed a medical evaluation.” App. Vol. I at 32 (emphasis added).

[ 8]Although we conclude that Colorado law, not Texas law, controls the validity of the liability release, infra at 28-33, Section II(C)(3), Texas law likewise permits a court to read separate but related documents together when determining the intent of the parties, see Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000) (“The City’s argument ignores well-established law that instruments pertaining to the same transaction may be read together to ascertain the parties’ intent, even if the parties executed the instruments at different times and the instruments do not expressly refer to each other, and that a court may determine, as a matter of law, that multiple documents comprise a written contract. In appropriate instances, courts may construe all the documents as if they were part of a single, unified instrument.” (footnotes omitted)).

[ 9]Ms. Hamric also argues that the question of whether Mr. Hamric and WEI entered into a liability release was a question of fact for a jury. But Ms. Hamric withdrew her fact-based challenge to the authenticity of the forms. Further, under Colorado law, “[t]he determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). And, where a liability release has force only if it is “clear and unambiguous,” id., the question of the existence of a liability release and its validity are one in the same because if the language relied on by a defendant does not form a valid release, then no liability release exists.

[ 10] The omitted language marked by the ellipses also required a signor/participant to hold federal and state agencies harmless for injuries or death that might occur as a result of WEI-led activities on federal or state land. Like the rest of the release, this language is plain and clear such that any reasonably educated individual would understand the nature of the release as to these third parties.


Washington Appellate court reviews release law in 2021 and the requirements on when a release is ambiguous and/or conspicuous.

Like most other states, if you signed the release, you read and agree to the release. However, that is about the only similarity to release law in other states as pointed out in this decision.

McCoy v. PFWA Lacey, LLC, dba Planet Fitness,

State: Washington, Court of Appeals of Washington, Division 2

Plaintiff: Carol J. McCoy

Defendant: PFWA Lacey, LLC, dba Planet Fitness

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: For the Defendant

Year: 2021

Summary

The release used by the health club stopped the lawsuit filed by the plaintiff for her injuries. However, this decision points out two very different requirements Washington’s law requires for a release to be valid. No release will work in all 43 states that allow the use of a release.

Facts

On February 1, 2016, McCoy entered into a membership agreement at Planet Fitness in Lacey. The first page of the two-page membership agreement begins with a section covering personal information, membership rate, and financial terms of the membership. The final sentence of this section states, “Cancellation & Billing Policies: I have read and understand the cancellation rights and billing policies on the front and back of this agreement,” followed by McCoy’s signature/initials. Clerk’s Papers (CP) at 25. Below McCoy’s signature/initials is a large box marked “PAYMENT AUTHORIZATION” with McCoy’s bank account information, and her signature after the paragraph authorizing a monthly membership fee payment.

In July 2016, McCoy fell from a stair stepper machine at Planet Fitness. She alleged that the emergency stop button failed to stop the machine, causing her injury. In January 2019, McCoy filed an amended complaint, naming Planet Fitness and the manufacturer of the machine, the Brunswick Corporation, [ 2] as defendants. She alleged claims of negligence and failure to provide a safe product.

Planet Fitness filed a motion for summary judgment, arguing in part that McCoy had signed an enforceable liability waiver. In support of its motion, it provided a copy of the membership agreement as well as excerpts from a transcript of McCoy’s deposition testimony. In her deposition, when shown the membership agreement, McCoy stated that she did not remember seeing the membership agreement before and that she did not remember signing it.

McCoy responded to the motion, arguing that the waiver provision in the membership agreement was inconspicuous and ambiguous, and because McCoy was not given an opportunity to read or review the agreement, it was unwittingly signed. In a supporting declaration, McCoy recalled the day she signed the membership agreement: 3.I was there for a short time, and I spoke to a person who appeared to be the manager, or at least was working behind the desk, who presented me with some documents to sign. He identified these documents as mere formalities and that I had to sign them in order to join the club. He showed me where to sign on a couple documents and I signed them, but I was not given an opportunity to read all the language, and when I mentioned that, he told me he would send me copies of these documents in the mail to my home address. He never did. 4.What little I could see of the documents was in very fine, small print which I could not read, at least on one of the documents, and the first time I saw the documents was at my deposition. I did not have time to read them at my deposition and I would have had difficulty anyway because the print was so small. . . . . As I said, the only direction I got from the person who was working behind the counter was to “sign here” and I did. He immediately took the documents back and told me that he would mail them to me, but I never received copies in the mail so I never really had an opportunity to review them before the incident occurred, or any time afterwards.

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

Washington’s law since 1988 has allowed the use of releases to allow parties to stop litigation.

The Washington Supreme Court has recognized the right of parties “‘expressly to agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent.'”

Washington has three ways to void releases, one that is found in most states and two slightly different ways. The first, a release fails if it violates public policy. This means the release is void based on who the release is attempting to protect or the services being offered that are to be covered by the release. However, in Washington, the state has adopted six factors to define public policy.

Six factors are considered in determining whether exculpatory agreements violate public policy. The court considers whether (1) the agreement concerns an endeavor of a type generally thought suitable for public regulation; (2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public; (3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established; (4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services; (5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and (6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees or agents. Wagenblast v. Odessa Sch. Dist. 105-157-166J, 110 Wash.2d 845, 851-55, 758 P.2d 968 (1988) (citing Tunkl v. Regents of Univ. of Cal., 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, 446 (1963)).

The second and third ways are very different from other states. If the negligent act falls below the standard of protection for others, it is void. This phrase is not defined in Washington’s law that I can find, even though it is quoted in several cases. I am guessing it is similar to a gross negligence argument. The act or omission of the defendant was so great as to far exceed negligence. However, I’m not sure.

Generally, a liability waiver or exculpatory clause in a contract is “enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous.” The first two exceptions are not at issue here. A liability waiver provision is not enforceable if the releasing language is “‘so inconspicuous that reasonable persons could reach different conclusions as to whether the document was unwittingly signed.’

The inconspicuous argument was the main argument made by the defendant in this case and discussed by the court. Washington has six factors to determine if the language in a contract is inconspicuous.

Courts look to several factors in deciding whether a liability waiver provision is conspicuous, including: (1) whether the waiver provision is set apart or hidden within other provisions, (2) whether the heading or caption of the provision is clear, (3) whether the waiver provision is set off in capital letters or in bold type, (4) whether there is a signature line below the waiver provision, (5) what the language says above the signature line, and (6) whether it is clear that the signature is related to the waiver provision.

The is far more requirements than most states, in fact; most states only require the waiver or release provisions be set apart or not hidden within the contract. Washington also requires that there be a heading or caption providing notice of the importance of the release or waiver section. That language of the exculpatory provisions must be in capital letters or bold type. The signature on the document must be below the exculpatory provisions. That means if your contract has a signature on the front of the document but references release language on the back, the release will be void.

The language above the signature line must indicate the person is giving up their legal rights or the signature line must be specifically below the release provisions, and the signature must clearly relate to the release provisions.

This six-part analysis of conspicuous is not done individually but looking at the agreement as a whole. Yet the analysis the court made was of each point of the test and reviewed individually, not as a whole.

We do not look to whether the plaintiff unwittingly signed the form from her subjective viewpoint, but whether, “objectively, the waiver provision was so inconspicuous that it is unenforceable.” Essentially, if the waiver provision is hidden, i.e. inconspicuous, it is unenforceable. Nevertheless, even if the waiver provision is conspicuous, and a person signs without reading it, the provision is enforceable unless the signor was not given an opportunity to read it. (“[A] person who signs an agreement without reading it is bound by its terms as long as there was ‘ample opportunity to examine the contract in as great a detail as he cared, and he failed to do so for his own personal reasons.'”)

The following two pages of analysis in the decision by the court looked at the release in detail to determine if the six factors had been met. The court found the waiver language in the contract was conspicuous and thus valid.

The next argument made by the plaintiff was the plaintiff did not have time to read the release.

McCoy admits that she did not read the agreement. Even though she did not read the agreement, she would be bound by its terms only if there was opportunity to examine the contract in as great a detail as she cared, and she failed to do so for her own personal reasons. (“Where a party has signed a contract without reading it, that party cannot successfully argue that mutual assent was lacking as long as the party was not deprived of the opportunity to read the contract.”).

Basically, if you signed the agreement, you have read and understood the agreement.

So Now What?

No release or waiver can be written to satisfy the laws of all 50 states or the 43 states that allow the use of a release or waiver. Even though Washington’s law is similar to the law in most states, it is very different in several aspects, enough so that if you operate in or are based in Washington your release must be written to meet Washington’s law.

No other state has the requirements for conspicuous that are required for a waiver or release to be valid like Washington’s law. It is specific and as stated by the court, if all six parts of the requirements are not met the release is void.

What do you think? Leave a comment.

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McCoy v. PFWA Lacey, LLC, dba Planet Fitness,

McCoy v. PFWA Lacey, LLC, dba Planet Fitness,

Carol J. McCoy, a single person, Respondent,

PFWA Lacey, LLC, a Washington limited company, dba Planet Fitness, Petitioner,

and

BRUNSWICK CORPORATION, a foreign corporation, Defendant.

No. 54400-8-II

Court of Appeals of Washington, Division 2

May 11, 2021

UNPUBLISHED OPINION

Veljacic, J.

Carol McCoy brought suit against Planet Fitness-Lacey for negligence after she was injured using a fitness machine. Planet Fitness filed a motion for summary judgment, arguing that McCoy was precluded from bringing suit because she signed a membership agreement that contained a liability waiver provision.[ 1] McCoy argued that the waiver was inconspicuous and that she was not given an opportunity to read the membership agreement.

The court denied Planet Fitness’s motion, determining that material issues of fact remained regarding whether McCoy unwittingly signed the waiver provision because it was inconspicuous. Planet Fitness appeals. We reverse the order denying summary judgment because the waiver provision was conspicuous and McCoy did not demonstrate an issue of material fact bearing on whether she was provided an opportunity to read the membership agreement.

FACTS

On February 1, 2016, McCoy entered into a membership agreement at Planet Fitness in Lacey. The first page of the two-page membership agreement begins with a section covering personal information, membership rate, and financial terms of the membership. The final sentence of this section states, “Cancellation & Billing Policies: I have read and understand the cancellation rights and billing policies on the front and back of this agreement,” followed by McCoy’s signature/initials. Clerk’s Papers (CP) at 25. Below McCoy’s signature/initials is a large box marked “PAYMENT AUTHORIZATION” with McCoy’s bank account information, and her signature after the paragraph authorizing a monthly membership fee payment.

The waiver provision is found below the payment authorization box, a little more than halfway down the first page of the agreement. Image Omitted

CPat25.

Below a dark line is a banner containing the bolded, capitalized words “RELEASE OF LIABILITY,” “ASSUMPTION OF RISK,” “CLUB RULES,” and “BUYER’S NOTICE & RIGHT TO CANCEL.” CP at 25. Directly below that banner is a paragraph in the same small sized font as the majority of the agreement that enumerates the waiver of legal rights. The waiver provision states that certain risks are inherent in physical activity and that the signer understands and voluntarily accepts responsibility for risk of injury or loss arising from the use of Planet Fitness facilities. It goes on to state twice that the member agrees that Planet Fitness is not liable for injury resulting from negligent conduct or omission of Planet Fitness or anyone acting on its behalf. The second paragraph of the waiver provision reads: I understand that I am not obligated to sign this agreement and should not do so if there are any unfilled blanks. I understand my right of cancellation and the billing and refund policies. I understand my release of liability, assumption of risk and agreement to indemnify, defend and hold harmless and I have been given the opportunity to review and ask questions related to my use of facilities . . . and other equipment. . . . I agree to comply with Planet Fitness’ membership policies and club rules. . . . Planet fitness may, in its sole discretion, modify any policy or club rule at any time and from time to time without advance notice. Planet Fitness reserves the right, in its sole discretion, to refund the pro-rated cost of unused services. . . . By signing below, I acknowledge and agree to all of the terms contained on the front and back of this agreement.

CP at 25.

McCoy’s signature appears immediately below this paragraph, next to a Planet Fitness authorized signature.

Bold, capital letters at the bottom of the first page and underneath the signature line discuss the nonrefundable initiation fee, then an acknowledgement of receipt of a written description of the health studio services and equipment and a complete copy of the rules on separate lines, followed by lines for initials. Finally, the page details, again in bold capital letters, the process for cancellation of the membership agreement. The second page of the agreement has a large bold heading that reads “PLEASE READ AND UNDERSTAND THIS AGREEMENT BEFORE SIGNING.” CP at 26. The remaining language of the contract is immaterial to this appeal.

In July 2016, McCoy fell from a stair stepper machine at Planet Fitness. She alleged that the emergency stop button failed to stop the machine, causing her injury. In January 2019, McCoy filed an amended complaint, naming Planet Fitness and the manufacturer of the machine, the Brunswick Corporation, [ 2] as defendants. She alleged claims of negligence and failure to provide a safe product.

Planet Fitness filed a motion for summary judgment, arguing in part that McCoy had signed an enforceable liability waiver. In support of its motion, it provided a copy of the membership agreement as well as excerpts from a transcript of McCoy’s deposition testimony. In her deposition, when shown the membership agreement, McCoy stated that she did not remember seeing the membership agreement before and that she did not remember signing it.

McCoy responded to the motion, arguing that the waiver provision in the membership agreement was inconspicuous and ambiguous, and because McCoy was not given an opportunity to read or review the agreement, it was unwittingly signed. In a supporting declaration, McCoy recalled the day she signed the membership agreement: 3.I was there for a short time, and I spoke to a person who appeared to be the manager, or at least was working behind the desk, who presented me with some documents to sign. He identified these documents as mere formalities and that I had to sign them in order to join the club. He showed me where to sign on a couple documents and I signed them, but I was not given an opportunity to read all the language, and when I mentioned that, he told me he would send me copies of these documents in the mail to my home address. He never did. 4.What little I could see of the documents was in very fine, small print which I could not read, at least on one of the documents, and the first time I saw the documents was at my deposition. I did not have time to read them at my deposition and I would have had difficulty anyway because the print was so small. . . . . As I said, the only direction I got from the person who was working behind the counter was to “sign here” and I did. He immediately took the documents back and told me that he would mail them to me, but I never received copies in the mail so I never really had an opportunity to review them before the incident occurred, or any time afterwards.

CP at 140-41.

In reply, Planet Fitness argued that the waiver provision was conspicuous under Washington law, and provided a screen shot of an undated e-mail from Planet Fitness to McCoy with a copy of McCoy’s signed membership agreement attached.

The court denied Planet Fitness’s motion for summary judgment. Planet Fitness filed a motion for reconsideration, which the court also denied. We granted Planet Fitness’s motion for discretionary review.

ANALYSIS

I. Standard of Review

Summary judgment is appropriate where there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn.App. 334, 338, 35 P.3d 383 (2001). On a motion for summary judgment, we view all evidence and draws all reasonable inferences in the light most favorable to the nonmoving party. Id. at 338-39. Where different competing inferences may be drawn from the evidence, the issue must be resolved by the trier of fact. Kuyper v. Dep’t. of Wildlife, 79 Wn.App. 732, 739, 904 P.2d 793 (1995). On appeal, we review an order denying summary judgement de novo. Chauvlier, 109 Wn.App. at 339.

On appeal, Planet Fitness argues that the court erred in denying its motion for summary judgment, because McCoy signed an enforceable liability waiver provision. Planet Fitness contends that the liability waiver provision was so conspicuous that it could not have been unwittingly signed and is therefore enforceable. McCoy argues that a genuine issue of material fact remains as to whether the waiver provision was conspicuous and whether she was given adequate opportunity to read the membership agreement.

II. Legal Principles

The Washington Supreme Court has recognized the right of parties “‘expressly to agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent.'” Wagenblast v. Odessa Sch. Dist., 110 Wn.2d 845, 848, 758 P.2d 968 (1988) (quoting W. Page Keeton, et al, Prosser and Keeton on Torts § 68, at 482 (5th ed. 1984)).

Generally, a liability waiver or exculpatory clause in a contract is “enforceable unless (1) it violates public policy, (2) the negligent act falls greatly below the legal standard for protection of others, or (3) it is inconspicuous.” Johnson v. Spokane to Sandpoint, LLC, 176 Wn.App. 453, 458, 309 P.3d 528 (2013). The first two exceptions are not at issue here. A liability waiver provision is not enforceable if the releasing language is “‘so inconspicuous that reasonable persons could reach different conclusions as to whether the document was unwittingly signed.'” Johnson v. UBAR, LLC, 150 Wn.App. 533, 538, 210 P.3d 1021 (2009) (quoting McCorkle v. Hall, 56 Wn.App. 80, 83, 782 P.2d 574 (1989)).[ 3]

Courts look to several factors in deciding whether a liability waiver provision is conspicuous including: (1) whether the waiver provision is set apart or hidden within other provisions, (2) whether the heading or caption of the provision is clear, (3) whether the waiver provision is set off in capital letters or in bold type, (4) whether there is a signature line below the waiver provision, (5) what the language says above the signature line, and (6) whether it is clear that the signature is related to the waiver provision. See Baker v. City of Seattle, 79 Wn.2d 198, 202, 484 P.2d 405 (1971); McCorkle, 56 Wn.App. at 83-84; Chauvlier, 109 Wn.App. at 342; Stokes v. Bally’s Pacwest, Inc., 113 Wn.App. 442, 448, 54 P.3d 161 (2002).

We do not look to whether the plaintiff unwittingly signed the form from her subjective viewpoint, but whether, “objectively, the waiver provision was so inconspicuous that it is unenforceable.” Stokes, 113 Wn.App. at 446. Essentially, if the waiver provision is hidden, i.e. inconspicuous, it is unenforceable. Nevertheless, even if the waiver provision is conspicuous, and a person signs without reading it, the provision is enforceable unless the signor was not given an opportunity to read it. Chauvlier, 109 Wn.App. at 341 (“[A] person who signs an agreement without reading it is bound by its terms as long as there was ‘ample opportunity to examine the contract in as great a detail as he cared, and he failed to do so for his own personal reasons.'”) (internal quotation marks omitted) (quoting Nat’l Bank of Wash. v. Equity Inv’rs, 81 Wn.2d 886, 913, 506 P.2d 20 (1973)).

III. Analysis

A. Conspicuousness of the Waiver Provision

We first consider whether the waiver provision is inconspicuous so as to invalidate the agreement. Stokes, 113 Wn.App. at 446. Here, the waiver provision contains some, but not all of the elements that we have found significant in determining the conspicuousness of waiver provisions.

1. The Waiver Provision is Set Apart from Other Provisions

To determine if the waiver provision is conspicuous, we first look at whether it is set apart or hidden within other provisions. In Baker, our Supreme Court held that the waiver provision was unenforceable because it was set in the middle of the agreement without anything to distinguish it from the rest of the terms of the agreement. 79 Wn.2d at 202. Here, the waiver provision is set off by a shaded banner or header with a title indicating that the subject of the following section is a “RELEASE OF LIABILITY” and “ASSUMPTION OF RISK.” CP at 25. The waiver language is not hidden within other provisions. This factor supports a finding of conspicuousness.

2. The Heading of the Waiver Provision is Clear

We also look to whether the heading or caption of the waiver provision is clear. For example, the plaintiff in McCorkle argued that the title “Liability Statement” in the agreement did not allow him to “conclude [that] future negligent conduct was being released.” 56 Wn.App. at 83. This court contrasted the title “Liability Statement” with the release provisions in two earlier cases that were deemed conspicuous because their titles clearly and unambiguously indicated that they dealt with a waiver of liability. Id. In contrast, in Chauvlier, this court found clear and enforceable a waiver provision entitled “LIABILITY RELEASE & PROMISE NOT TO SUE. PLEASE READ CAREFULLY!” 109 Wn.App. at 342.

Here, the shaded header reads: “RELEASE OF LIABILITY,” “ASSUMPTION OF RISK,” “CLUB RULES,” and “BUYER’S NOTICE & RIGHT TO CANCEL.” CP at 25. Although the header indicates that release of liability and assumption of the risk are not the only topics of the following paragraphs, it is clear from the header what the following provision contains-namely, a release of liability and an assumption of the risk. The inclusion of the other two subjects does not make the heading of the provision unclear or the reader ignorant of what is contained below the shaded header. This factor supports a finding of conspicuousness.

3. The Appearance of the Waiver Provision Language is Not Emphasized We then look to the appearance or attributes of the waiver provision itself, like whether the words are emphasized in capital letters or in bold type. For example, in Stokes and Chauvlier, the words indicating release of liability appear in bold or capital letters throughout the provisions. 113 Wn.App. at 448; 109 Wn.App. at 342. Here, the body of the waiver provision is in the same size and type of text as the remainder of the form and has no bold or capital letters. This factor does not support a finding of conspicuousness.

4. The Signature Line

We next consider the signature line and its relation to the waiver provision. Specifically, whether it is located below the waiver provision, what the language above the signature line indicates, and whether it is clear that the required signature is related to the release of liability. Chauvlier, 109 Wn.App. at 342; Stokes, 113 Wn.App. at 448; UBAR, LLC, 150 Wn.App. at 538.

a. The Signature Line is Below the Waiver Provision

Here, the signature line is below the waiver provision. This supports a finding of conspicuousness.

b. The Language Immediately Above the Signature Line does Not Relate only to the Waiver Provision

Here, although the signature line is located below the waiver provision, the signature and waiver are separated by an intervening paragraph. The first paragraph underneath the header relates to the waiver of liability. The second paragraph, situated directly above the signature line relates to the club rules and the right to cancel. This second paragraph also states: “By signing below, I acknowledge and agree to all of the terms contained on the front and back of this agreement.” CP at 25.

In Stokes, this court held that reasonable minds could not differ regarding the conspicuousness of a waiver provision contained in a retail installment contract. 113 Wn.App. at 448. This court’s determination relied in part on the fact that a statement immediately below the signature line said that the contract contained a waiver and release to which the signatory would be bound. Stokes, 113 Wn.App. at 448. In Chauvlier, this court relied in part on a statement directly above the signature line reading: “I have read, understood, and accepted the conditions of the Liability Release printed above” in making its determination that the waiver provision at issue was conspicuous and enforceable. 109 Wn.App. at 342. Here, the statement above the signature line is unlike those contained in the contracts held to be enforceable in Stokes and Chauvlier, because it relates to all provisions of the membership agreement, rather than only the waiver provision. This factor does not support a finding of conspicuousness.

c. The Required Signature Relates to the Waiver Provision

Although separated by a paragraph, the signature line clearly relates to the waiver provision because it is spatially oriented near the waiver provision. It is within the area set off by the large banner described above and by its own language relates to the “all of the terms contained” in the agreement. CP at 25. This factor also favors a finding of conspicuousness.

In summary, although the signature line does not correspond solely to the waiver provision, the provision is set apart from the other provisions of the contract by a banner, the caption heading within the banner clearly identifies the contents of the waiver, the signature line is below the waiver provision and it clearly relates to the waiver provision. We conclude that the waiver provision is conspicuous.

B. Opportunity to Examine the Agreement

McCoy admits that she did not read the agreement. Even though she did not read the agreement, she would be bound by its terms only if there was opportunity to examine the contract in as great a detail as she cared, and she failed to do so for her own personal reasons. Yakima County ( W.Valley) Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 389, 858 P.2d 245 (1993) (“Where a party has signed a contract without reading it, that party cannot successfully argue that mutual assent was lacking as long as the party was not deprived of the opportunity to read the contract.”).

McCoy asserts that the Planet Fitness employee identified the agreement as a “mere formalit[y]” that she had to sign in order to join the club. CP at 140. The employee “showed [her] where to sign on a couple documents and [she] signed them, but [she] was not given an opportunity to read all the language” because he immediately took the papers back. CP at 140-41. When McCoy mentioned that she had not been able to read them, he told her that he would mail them to her home address. McCoy was apparently satisfied with not reading it before signing. Although McCoy asserts that she was not given the opportunity to read the membership agreement, there is no indication that she could not have read the contract either before or after she signed it if she had asked. Additionally, McCoy sought out the membership and there is no evidence that she was coerced. The waiver was conspicuous as a matter of law, McCoy has not shown that there is a genuine issue of material fact regarding her opportunity to read the membership agreement. In any case, even if she felt rushed to sign the document, the waiver language was, as a matter of law, conspicuous enough for her to notice it.

CONCLUSION

The liability waiver was conspicuous. McCoy did not demonstrate an issue of fact regarding her opportunity to read the membership agreement. Accordingly, we reverse.[ 4]

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur: Worswick, J. Lee, C.J.

Notes:

[ 1] Alternatively, the parties and witnesses refer to the “membership agreement” as “the documents” and “the contract.” We will refer to it as the “membership agreement” throughout this opinion. The liability waiver provision is contained within the membership agreement. Throughout the remainder of this opinion, we will refer to this provision simply as the “waiver provision.”

[ 2] The claims against Brunswick are not at issue in this appeal.

[ 3] Although the inconspicuousness of a waiver provision appears to be a factual inquiry, the Supreme Court in Baker v. City of Seattle, 79 Wn.2d 198, 484 P.2d 405 (1971), determined that a liability waiver provision hidden in the middle of an agreement was so inconspicuous that, as a matter of public policy, it would be unconscionable to enforce it. Subsequent courts of appeal have treated the issue of conspicuousness, as the Baker holding implies, as a matter of law determined by the court. See e.g. Stokes v. Bally’s Pacwest, Inc., 113 Wn.App. 442, 448, 54 P.3d 161 (2002)(“The language is conspicuous, as a matter of law, and it was not unwittingly signed.”).

[ 4] Because we reverse the denial of summary judgment, we do not reach the issue of whether the court abused its discretion in denying the motion for reconsideration.


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

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

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

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

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

Plaintiff: Douglas E. Ferbet

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

Plaintiff Claims: negligent maintenance and operation of the tubing hill

Defendant Defenses:

Holding: Release

Year: 2020

Summary

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

Facts

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

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

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

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

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

Here, since Hidden Valley has asserted the release as an affirmative defense, we review de novo the legal and fact questions (1) whether the release before us is enforceable to release Ferbet’s claims as a matter of law, and (2) whether Hidden Valley has established as a matter of undisputed fact that the injury-causing negligent conduct alleged by Ferbet is within the purview of this release.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thus, if Ferbet’s injury resulted from a known and understandable risk deemed to be inherent to the sport of snow tubing, and Hidden Valley did not negligently enhance or increase that inherent risk, then the release language in paragraph 7 is not relevant nor applicable because Hidden Valley owed Ferbet no duty with respect to risks inherent to snow tubing. But if Hidden Valley negligently enhanced or increased that inherent risk, then the release language in the agreement is applicable and operative and we would look to the agreement as a whole to determine whether that enhanced risk was covered by the release.

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

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

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

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

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

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

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

We turn now to the crevice in the sliding surface that caused Ferbet’s injury and we find that an uneven sliding surface and the potential risks it creates for snow tubers are inherent risks of snow tubing because they are “structural” to the activity and involve the “essential character” of snow tubing.

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

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

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

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

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

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

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

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

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

In Missouri, neither the common carrier designation nor the application of the highest degree of care has ever been extended to amusement parks or recreation areas such as ski resorts or snow tubing hills.

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

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

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

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

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

So Now What?

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

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

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

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

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

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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

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

Standish v. Jackson Hole Mountain Resort Corporation

State: Wyoming, 10th Circuit Court of Appeals

Plaintiff: Thomas A. Standish, IV; Meghan Keiter

Defendant: Jackson Hole Mountain Resort Corporation

Plaintiff Claims: Negligence and Loss of Consortium

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

Holding: For the Defendant Ski Area

Year: 2021

Summary

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

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

Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court concluded:

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

So Now What?

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

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

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

What do you think? Leave a comment.

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Standish v. Jackson Hole Mountain Resort Corporation

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

v.

Jackson Hole Mountain Resort Corporation, Defendant-Appellees.

No. 20-8045

United States Court of Appeals, Tenth Circuit

May 14, 2021

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

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

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

Before TYMKOVICH, KELLY, and PHILLIPS, Circuit Judges.

TYMKOVICH, Chief Judge.

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

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

I. Background

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

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

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

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

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

II. Analysis

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

A. Inherent Risk

1. Standard of Review

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

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

2. The Wyoming Recreation Safety Act

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

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

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

a. Duty Under the WRSA

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

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

b. Inherent Risk

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

B. Consideration of Inadmissible Facts

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

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

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

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

III. Conclusion

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

———

Notes:

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

                                              Table of Contents

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

Chapter 2    U.S. Legal System and Legal Research

Chapter 3    Risk 25

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

Chapter 5    Law 57

Chapter 6    Statutes that Affect Outdoor Recreation

Chapter 7    Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8    Defenses to Claims

Chapter 9    Minors

Chapter 10    Skiing and Ski Areas

Chapter 11    Other Commercial Recreational Activities

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

Chapter 13    Rental Programs

Chapter 14    Insurance

         $99.00 plus shipping

 

 

 

 

Artwork by Don Long donaldoelong@earthlink.net

 


Risk Management in Action combined with the proof people assumed the risk.

Survivor films and shows contestants being given warnings about crocodiles in Guatemala.

The article Find Out How ‘Survivor’ Production Prepared for a Wrongful Death Lawsuit reveals that during the filming of Survivor Guatemala, the contestants were cavalier about the native crocodiles. Fearing for the safety of the contestants and the resulting outcry if a contestant was eaten survivor gathered the contestants together and filmed them being warned about the crocodiles.

The only non-contestant ever seen on the show is the producer and host Jeff Probst. However, for this segment, they brought in and filmed a crocodile expert who explained to the contestants the danger’s crocodiles posed.

For more on the issue or Survivor Guatemala see:

Find Out How ‘Survivor’ Production Prepared For a Wrongful Death Lawsuit

Survivor Quarantine Questionnaire: Brooke Struck on surviving crocodile attacks in Guatemala

“Previously on Survivor” – Season 11 – Survivor: Guatemala — The Maya Empire

Do Something

Quite Interesting to see how real life intersects with entertainment and how it is handled.

What do you think? Leave a comment.

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

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

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

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

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

Defendant: Union Resort, LLC, dba Mystic Miner

Plaintiff Claims: negligence and gross negligence

Defendant Defenses: Release

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

Year: 2018

Summary

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

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

Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So Now What?

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

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

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

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

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

What do you think? Leave a comment.

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What went wrong and how to beat the lawsuit when a guide sues to recover fees, he paid to climb mountain Everest after the trip was cancelled? Several things.

The client was not properly educated pre-trip, and the paperwork did not cover the right issues and/or say the right things.

All over the news, this past ten days is a story about a lawsuit by a Mt. Everest commercial client who is suing his guide service for a refund when the trip was canceled. After arriving in base camp, the trip was canceled because the Khumbu Icefall had a 15 story serac over hanging the route. The outfitter and the other clients decided to bail because of the risk.

I’m even quoted in one article in Outside Magazine.

A Tech CEO Suing His Guide Could Change Everest Travel

CEO Sues Climbing Guide – Could Set a Terrible Precedent for the Travel Industry

It is not the first time that I’ve heard or been involved in these types’ lawsuits. I knew of one from 20+ years ago where the threatened lawsuit was over a refund because the client did not summit Mt. Everest. I never heard what the outcome was.

One of my clients was threatened with a similar lawsuit. The client wanted his money back because he did not summit. I responded to the client’s demand letter listing every Everest summiteers I knew who would testify about the chances of submitting. I never heard anything else.

These refund attempts happen on mountains all over the world.

Usually these start with a guide service needing clients to stay alive or making a profit or not investigating the client thoroughly. When a climbing guide is broke, they have a tendency to say anything to get money in the door or take anyone. Worse are the ones that can right a check without hesitation or who come with a “climbing resume” but only with guide services.

Climbing with a guide is awesome, but the guide makes all the decisions, no matter what the agreement says and how the issue is phrased and the client never engages his brain or understands how decisions are made when climbing a mountain.

Everyone once in a while it is the client who is trying to save face with his friends and neighbors because he did not summit. Getting his money back proves it was not his fault, that he did not summit.

The next step in the process is education. Clients need to learn two things from the start.

  • Their chances of summiting are slim or low based on the mountain.
  • The money they pay to summit is spent way before the client ever sets foot in the country where he is climbing.

No matter the mountain your chances of summiting are based on a lot of factors.

  • The mountain
  • The guide service
    • What the guide service does to get you off the mountain before you can summit

The mountain is obvious, how many days in what conditions and can you survive.

At the same time, there are unscrupulous guide services.

Guide services have been playing games with clients for decades. One game that used to be played on Denali was running the client up the mountain before the client could acclimatize and getting the client sick. This was obvious when you looked at the schedule. There was never enough time between the next load of clients landing on the glacier to acclimatize and summit before the guide had another group to lead.

A different game is still being played on Kilimanjaro. No one tells clients that the hike through the jungle to the base camp is going to leave them and their gear soaking wet. I’ve heard of trips were every single client spent the first two nights shivering in wet sleeping bags before giving up and heading home. No one says to use a waterproof stuff sack or a garbage bag to protect your gear, so thousands each year get to the base of the mountain and turn around.

I’ve not heard of Everest guide services playing any of these games. I do know that your chances of summiting and living are higher based on the amount of money you pay. The past ten years, most of the fatalities have come from guide services that are locally run and very inexpensive compared to everyone else.

I also have only heard great things from the defendant in this case, Garret Madison.

The money paid is gone before you arrive.

Think about the food you will be eating on Mt. Everest. It is purchased in the US, packed for transportation to Katmandu, repacked for shipping to basecamp and repacked for carrying up the mountain. The cost of shipping and packing far outweighs the cost of the food. All of this is done before a US client leaves the US.

Airline tickets, hotel rooms and transportation inside Nepal are paid for in advance. Local guides are hired and paid for, or they find someone different to work for. Competition on Mt. Everest is stiff, so there are plenty of job opportunities for all aspects of getting to basecamp and who you will be climbing with.

Gear is always brought back to the US, cleaned, checked, replaced and then shipped back to Nepal, or used on other mountains in between seasons.

Most of the money you pay to climb a mountain is spent before you leave the US. There are no refunds for food shipped to basecamp, there are no refunds if you can’t summit. I would guess if you wanted some of your money back you can take thirty days of dehydrated food back home with you……. Most is given to the locals and the Sherpa who live on it.

The best way to stop any lawsuit is education and paperwork.

The agreement between the guide and the client must have the following.

  1. The guide is in command, makes mistakes but is in control. Decisions made by the guide are final yet you are in control of your life. You can ignore them at your own risk.
  2. You can’t sue and if you do, you will owe me money for breach of the covenants that go with this contract.
  3. If you do sue, you have to sue me in my little home town a long way from where you live.
  4. You must purchase travel insurance to protect your investment because I’m not going to.

The guide from the articles might have screwed up. To get the client off their back, he might have said something about a refund. The guide also did not do a good job of explaining with the other clients who were leaving what was going on and why. The plaintiff client was left out of the conversation.

However, climbing Everest is not a guaranty, and no guide will ever bet on who will summit and who will not because the odds are stacked and change constantly.

Worse, it is obvious that this plaintiff thinks his luck is pretty good or the amount of money he paid is too much to lose, e way he puts little value on his life.

Guide says to go home, too dangerous! my response is get out of my way!

Do Something

If you want to climb big mountains and intend to hire a guide to do so.

  1. Get in shape
  2. Learn how to climb and climb well. If you can’t run up your local mountains without fear or concern, don’t leave them.
  3. Go climb big mountains with and without guides. Learn how to make decisions and why on when to climb, where to camp, what to do and when to go home.
  4. Expect to spend a lot of money, go cheap you might never go home.
  5. Communicate. Make sure all the promises your guide makes are in writing.
  6. Cowboy up if you can’t get to the top, you probably ignored steps 1-4.
  7. Your money is gone and will not be coming back.

If you are a guide service.

  1. Have enough guts to withstand angry clients because you can’t keep them all happy.
  2. Get good contracts and releases. Get agreements written by an attorney who knows what a mountain is, what making decisions means and has made those decisions and most importantly knows what goes into the agreement and why!
  3. Understand that marketing makes promises that risk management has to pay for is true. You tell a client, he or she will summit, you better have a way to get their butt to the top, or you will be in court.
  4. Make sure your insurance covers advertising, and you have a comprehensive policy to cover those lawsuits that arise more than the negligence lawsuits do.
  5. Tell everyone you cannot guaranty they can get out of basecamp, even get to basecamp, let alone summit.
  6. Get good contracts and releases!

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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Putting a saddle on a horse does not turn a livery into a saddle manufacturer. Release stops negligence claims and law stops product liability claims.

A woman who fell off a horse while on a horseback ride. She sued for negligence, which the release stopped, product liability which the law stopped and willful and wanton conduct, which will proceed to trial.

Messer v. Hi Country Stables Corp., 2013 U.S. Dist. LEXIS 2675, 2013 WL 93183

State: Colorado; United States District Court for the District of Colorado

Plaintiff: Alva Messer

Defendant: Hi Country Stables Corporation

Plaintiff Claims: negligence; product liability; and, willful and wanton conduct

Defendant Defenses: Release

Holding: Mostly for defendant, however plaintiff could continue on willful and wanton claims

Year: 2013

Summary

A woman purchased a trail ride from the defendant. On the ride, her saddle slipped, and she fell off the horse. She sued for negligence which the release stopped, product’s liability, which failed because the stable is not a manufacturer and willful and wanton conduct. The court allowed the willful and wanton claim to proceed.

Facts

On July 16, 2009, Plaintiff Alva Messer purchased a guided horseback ride from Hi County Stables. Defendant HCS operates commercial horse-back riding at Glacier Creek Stables in Rocky Mountain National Park (“RMNP”). HCS is one of two equestrian companies owned by Rex Walker. The other equestrian company is Sombrero Ranches, Inc. (“SRI”). Before beginning any guided horseback ride, both companies require customers to sign an exculpatory contract, titled “Release” (hereafter “the Release” or “Release Forms”). The Release Forms for HCS and SRI are identical, except for the name of the company being released from liability. The Release Forms for HCS and SRI are printed in tablets containing 100 tear-away forms per tablet. Once printed, the printing company delivers the tablets to the offices of HCS and SRI.

At the start of the 2009 riding season, one tablet of Release Forms labeled SRI was placed in a box of office supplies for delivery to HCS. For reasons that are unexplained by Defendant, those same Release Forms—which Released SRI from liability—were used by HCS at Glacier Creek Stables on July 16, 2009.

Typically, when customers arrive at HCS, they are informed that they must sign a Release. Amongst other employees at HCS, Dallas Marshall informs customers that they are required to sign the Release and “mark their riding ability.”

When the Messers arrived at HCS on July 16, 2009, Marshall followed her normal practice and informed the Messers of the Release. She also requested that they indicate their riding ability, which Plaintiff did. Following this, and before commencing the guided horseback ride, Plaintiff signed the Release. The Release expressly provides that the customer “understands. . .the specific risks. . .arising from riding a horse. . .and that the [customer] nevertheless intentionally agree[s] to assume these risks.”

After signing the Release, Plaintiff entered the corral where she was assigned her horse before commencing the trail ride. The wrangler who led the guests on Plaintiff’s trail ride was Terry Humphrey.

Plaintiff encountered problems with her saddle during the trail ride which required adjustment by Plaintiff and Humphrey.

At the midway point, the Messer group stopped to take a rest break. Plaintiff encountered further problems with her saddle—including slippage of the saddle to the horse’s right.

Sometime later, as Plaintiff’s horse was stepping down a “rock stair” in the trail, Plaintiff fell off the right side of the horse (the “Incident.”) Plaintiff allegedly sustained serious injuries and economic loss resulting from the Incident.

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

The first issue was the fact the release that was signed did not name the proper defendant. Two stables were owned by the same person, each with different names. Each had a release that named it as the entity being protected. Somehow, a pad of the wrong releases ended up at the defendant, and the release signed by the plaintiff had the name of a different stable on it then where she was riding.

To make changes in a contract like this is called reformation. The court can reform a contract if the party’s intention when signing the contract is the same, and the language does not express the correct intention of the parties.

Reformation of a written instrument is appropriate only when the instrument does not represent the true agreement of the parties and the purpose of reformation is to give effect to the parties’ actual intentions.” Mutual mistake of a contract provides grounds for reformation if the written instrument “does not express the true intent or agreement of the parties.”

A mutual mistake must have occurred for a reformation to be effective.

An “essential prerequisite to a court’s power to reform a contract on the ground of mutual mistake is the existence of a prior agreement that represents the actual expectations of the parties and provides the basis upon which a court orders reformation.”

Because it was obvious that the plaintiff intended to go on a horseback ride with the defendant, where she signed the release, where she paid her money and where she took the ride, the court had no problems correcting the mutual mistake and placing the correct language in the release. This meant placing the name of the defendant in the position of the person to be protected by the release.

Accordingly, the Court finds that there was a mutual mistake at the time the Release was entered into. Mutual intent of the parties was to enter into an agreement whereby HCS would be released from certain claims. This provides the equitable basis to grant the relief. The Court orders that the name “Sombrero Ranches, Inc.” (SRI) be deleted and substituted with “Hi Country Stables” (HCS) in the Release.

The next issue was the validity of the release itself. Under Colorado law, there is a four-part test that a release must pass to be valid.

To determine whether the Release bars Plaintiff’s negligence claim, the Court must consider four factors: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.

The first three parts of the test the court quickly covered. Prior Colorado Supreme Court cases held that a recreational activity owes no duty to the public; horseback riding is not an essential service that would bar the release under part two of the test and there was no evidence the release was entered into unfairly.

The fourth test the court also found was valid with this release.

With respect to the fourth factor, the Court looks to the language of the Release to elicit its intent. The Court must determine “whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed.”

It was obvious that the intent of the parties was to decide in advance who would pay for the injuries of any patron of the ride. The release in this case repeatedly used the word negligence throughout the document so the plaintiff knew the purpose of the release. The release also pointed out specific risks of horseback riding that the signor could suffer.

The release was valid to stop the negligence claims.

The next issue was the product liability claim. The plaintiff argued that since the defendant had placed the saddle in the stream of commerce, by placing it on the horse, it was liable for any injuries caused by the defectiveness of the saddle.

The defendant argued that the release stopped this claim also. However, the law in Colorado is that a release cannot stop a product liability claim.

That case held that an agreement releasing “a manufacturer from strict products liability for personal injury, in exchange for nothing more than an individual consumer’s right to have or use the product, necessarily violates the public policy of this jurisdiction and is void.”

The court found the product liability claim was not barred by the release. However, the court did hold that just placing a saddle on a horse for a trail ride does not create a product liability claim for defective equipment in Colorado. Horseback riding is a service; it is not a manufacturing process. Placing a saddle on the horse does not change that. The horse-riding service could not exist (for 99.9% of the people) without the saddle.

Plaintiff entered into a contract for a guided five-hour horseback ride through RMNP. This service primarily relied upon a horse (which is not a product) and a saddle (which incidental to that service). Without a product, the product liability claims cannot succeed.

The saddle was not an item manufactured by the defendant; it was incidental to the service being offered by the defendant and so the product liability claim failed. Finally, the defendant was not a manufacturer of saddles.

The final issues were the claims for willful and wanton conduct. A release cannot bar claims that are greater than negligence, willful and wanton conduct or gross negligence.

Willful and wanton conduct claims are mental state claims. Meaning the claim goes to the actions, the mental state of the defendant in ignoring or creating the issue. This require conscious thought, not simple failure. “…willful and wanton conduct requires a mental state “consonant with purpose, intent and voluntary choice.”

The court then allowed the plaintiffs claims based on willful and wanton conduct of the defendant to proceed to trial.

So Now What?

First, there is a need to look at the product liability claim. Not in the fact that most recreation businesses are manufacturing items, but because they are repairing them. Although you can find outfitter made items such as old raft frames, most items used now days are manufactured by a third party. However, many outfitters and recreation businesses do repair items.

Repairing an item may bring the outfitter into the trial under a product liability claim in many states. The outfitter by making repairs has entered into the stream of commerce between the manufacturer and the end user. The outfitter is no longer a user of the product, but a manufacturer of the product.

Remember there are some items you should never repair or that may be illegal to repair.

PFD’s cannot be repaired by law. Climbing harnesses or any other item where the failure would result in catastrophic injury or death or where the manufacturing process is protected by statute or standard should never be repaired.

The reformation issue was stupid. The cost of printing one set of releases on tan paper and the other on white would have eliminated this problem. Other examples would be putting the page numbers on the bottom right of one release and the center or top of the other. Locating the logo of the defendant in a different location on each release would have worked. Anything to that any employee can recognize that they are using the wrong release.

Some day there will be a horseback riding case that does not involve a slipping saddle. Why there still are, is a mystery to me, and I grew up with horses.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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

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

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To Purchase Go Here:

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

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

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

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

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

5:17-CV-05047-JLV

Reporter

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

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

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

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

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

Opinion by: VERONICA L. DUFFY

Opinion

REPORT AND RECOMMENDATION

INTRODUCTION

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

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

FACTS

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

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

Upon arriving shortly before noon, the Reed party entered the lodge area where customers are required to check in and purchase admission tickets for the resort. The Reeds purchased snow tubing day passes for themselves and their children, including I.R. As a condition of allowing I.R. to use the resort, Union required the Reeds to agree to a written release of liability. The Reeds signed the release and printed the names of each of their children, including I.R., as participants. [*3] 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Defendant maintains that it had a proper protocol of having at least one employee at the top of the tube run and one employee at the bottom of the tube run at all times. The employee at the top of the tube run was supposed to “stage” the tubers going down. The employee at the bottom of the tube run would retrieve items lost by tubers going down the slope (hats, mittens, etc.) and also retrieve guests whose [*9]  tubes stopped without fully descending the slope.

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

DISCUSSION

A. Summary Judgment Standard

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

Notice To Parties

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

DATED November 15, 2018.

BY THE COURT:

/s/ Veronica L. Duffy

VERONICA L. DUFFY

United States Magistrate Judge


Federal District Court applying South Dakota law finds release was ineffective in stopping claims for injury that did not occur because of the risk the plaintiff was anticipating.

The plaintiff in this case signed a release to hunt, but was injured by an ATV waiting to hunt. As such the release did not apply.

Wimmer v. Top Gun Guide Serv., 421 F. Supp. 3d 849, 2019 U.S. Dist. LEXIS 185888, 2019 WL 5558308

State: South Dakota

Plaintiff: Anthony Wimmer

Defendant: Top Gun Guide Service, Inc., John Does 1-5

Plaintiff Claims: Negligence

Defendant Defenses: Release

Holding: for the Plaintiff

Year: 2019

Summary

A release must be written to cover all the risks your guests could suffer. Here the release covered hunting and did not cover being hit by an ATV when the plaintiff was not hunting. Write your release to inform your participants and to provide protection for you from all fronts.

Facts

This case arose from injuries that plaintiff Anthony Wimmer sustained while on a hunting trip hosted by defendant Top Gun near Aberdeen, South Dakota in April of 2015. Mr. Wimmer is a California resident and Top Gun is a Minnesota corporation. Id. On or about April 9, 2015, Mr. Wimmer arrived in Aberdeen, though he did not hunt on that day. At some point on April 9th, Mr. Wimmer signed a waiver purporting to release Top Gun from liability arising from the hunting trip.

The parties agree that in his deposition Mr. Wimmer testified that he read the release before signing it and that he did not disagree with anything contained therein. Mr. Wimmer also agreed in his deposition that hunting and fishing is a dangerous activity.

On April 10th, Mr. Wimmer arrived at the hunting site and began setting up hunting decoys. Shortly after having finished setting up the decoys, Mr. Wimmer was standing in the field where the hunt was to take place when he was struck from behind “by either an [all terrain vehicle (ATV)] or sled.” The sled was being towed behind the ATV. Id. The ATV was being operated by a Top Gun guide.

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

The plaintiff argued the normal arguments on why the release should fail. The main one was the release was written specific for the activity of and the risks created by hunting and fishing and at the time of the accident the plaintiff was doing neither of those things. Therefore, the release did not apply, his injuries were outside of the scope of the language of the release.

Plaintiff argues that he had no meaningful opportunity to negotiate the terms of the waiver and so it must be viewed as an “anticipatory release and contract of adhesion, which should be viewed with a skeptical and critical eye,” and any ambiguities should be construed against the drafter. Plaintiff argues that the waiver, by its terms, only applies to the limited activities of hunting and fishing. Plaintiff argues that his are not hunting injuries because, at the time of the accident, he had already finished setting up the decoys and was merely standing in the field waiting to be told what he should do next. Plaintiff urges that such activity should not be considered hunting.

The defendant argued the release was broad and covered the injury the plaintiff sustained and countered the plaintiff’s arguments.

Top Gun’s argument relies on the liability waiver being found to encompass the harm at issue in this case. Defendant then proceeds to argue that the waiver is valid and its enforcement would not contravene South Dakota’s public policy. Defendant argues that releases involving voluntary recreational activities have withstood attacks that they are contrary to South Dakota’s public policy many times before; only an attempted waiver of conduct rising to the level of willful negligence or intentional tort would contravene the state’s public policy. Because Mr. Wimmer does not allege willful negligence or any intentional torts, defendant argues that his claims must fail.

The court then looked at the law of South Dakota where the accident happened and, which law was to be applied, South Dakota law.

Under South Dakota law, a waiver of liability is contractual in nature and is governed by contract law. When interpreting a contract, “[t]he goal . . . is to see that the mutual intent of the parties is carried into effect.” Courts look to the language of the contract to determine the intent of the parties, and afford contractual terms their “plain and ordinary meaning,” “When the meaning of contractual language is plain and unambiguous, construction is not necessary” because the “intent of the parties can be derived from within the four corners of the contract.” (“When the words of a contract are clear and explicit and lead to no absurd consequences, the search for the parties’ common intent is at an end.”).

What most non-lawyers do not understand is a contract must be interrupted solely by the words in the contract. As lawyers say within the four corners of the document. Statements (parol evidence) said before or after the signing of the contract are inadmissible to interpret the contract. The exception to this rule is if the contract is determined by the court to be ambiguous, then evidence outside of the terms of the agreement can be introduced to explain the language of the contract. But only to explain the ambiguous language of the contract.

When a contract is found to be ambiguous, however, “parol evidence is admissible to explain the contract but inadmissible to vary or add terms to the contract.” A contract is not rendered ambiguous merely because the parties now disagree as to their intent at the time of contracting. “Instead, ‘a contract is ambiguous only when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.'”

The court found that the release was not ambiguous so no other evidence could be introduced to explain the meaning of the release.

The release at issue in the instant case is not ambiguous. Although it must be interpreted and read in a common sense manner. The release, by its terms, covers “all claims, demands, or causes of action, which are in any way connected with [plaintiffs] participation in this activity or [plaintiff’s] use of [Top Gun] equipment…”

The plaintiff and the defendant both argued the issues as they needed. The plaintiff stated he was standing around the, and the defendant argued the plaintiff was hunting. However, the court found the plaintiff was not hunting by law. “As a matter of law, plaintiff could not have legally been pursuing waterfowl because the accident happened long before legal shooting time.”

Under South Dakota law, hunting cannot begin until thirty minutes before sunrise. Since the accident happened several hours before sunrise, the plaintiff was not hunting.

This accident could not, as a matter of law, have been a part of legal hunting. In South Dakota, a hunter may not shoot waterfowl until one half hour before sunrise. At the time of the accident, all preparations for hunting had been completed. The parties were in a waiting period. Instead, plaintiff was struck by a motor vehicle. The fact that plaintiff is claimed to be hunting at the time he was struck by the ATV is irrelevant because being struck by an ATV is not a harm arising out of hunting, especially long before sunrise.

Therefore, the release was not written to cover the accident that occurred to the plaintiff.

The court also added that the release did not cover motor vehicle accidents, which is what occurred to the plaintiff. (Any accident that is caused by something with an engine and tires, the courts usually interpret that as a automobile accident and apply automobile law, on or off road.)

The court then looked at releases and how they are interpreted with respect to high-risk activities under South Dakota law.

First, the more inherently dangerous or risky the recreational activity, the more likely that an anticipatory release will be held valid. That is, individuals who engage in activities like mountain climbing, race car driving, parachute jumping, and the like, are more likely to be held to have an understanding of the risky nature of their chosen activity.

Second, releases are deemed more acceptable when they are written on a separate sheet of paper. Id. It is the first line of reasoning that is most relevant to the instant analysis.

The court stated that if you undertake a high-risk activity you cannot sue for your injuries.

The first line of reasoning recognizes that individuals who voluntarily engage in a particularly dangerous activity for recreational purposes must accept a certain amount of risk that is inherent in said activity. That is, when an individual chooses to go skydiving, signs a release with a vendor providing such services, and is injured while hurtling to the earth, he cannot then sue in contravention of that release. Hunting is likewise a dangerous activity; the hunter voluntarily exposes himself to all the dangers of the firearms enthusiast as well as those of the outdoorsman. It is agreed that the release in this case covers liability arising out plaintiff’s participation in the activity of hunting. However, plaintiff’s participation in the hunt did not cause his injury.

Summing the issues up, the court made the statement that in South Dakota, the Supreme Court looked at the validity of the release as it relates to the activity the release was supposed to cover.

Each case the Supreme Court of South Dakota has considered relating to the application of a release from liability has involved harm that arose out of the activity for which liability was waived.

However, here the plaintiff was not undertaking a high-risk recreational activity. He was standing in a field.

In the instant case, plaintiff’s injury did not arise from his participation in the hunt. He was not accidentally shot by a fellow hunter; he did not strain his back while placing a decoy, nor did he twist his ankle while standing around waiting to be told what to do next. Instead, plaintiff was struck from behind by a motor vehicle at a time before legal hunting could commence, something separate and apart from his participation in the hunt.

The release was signed so the plaintiff could hunt. He was not injured hunting, and the release was not written in a way to cover the risks the plaintiff encountered standing in a field.

The release was thrown out by the court and the plaintiff was allowed to continue his lawsuit.

So Now What?

Too many releases are written to cover the risks of the specific activity, hunting, climbing, rafting, etc. Yet accidents occur in the parking lot, on the way to the activity and just standing around waiting for kayaks to be unloaded, belays to be set up or the guides to get organized.

Make sure your release is broad enough to cover all the risks your clients will encounter during the activity.

At the same time, don’t let an idiot drive an ATV and if people are going to be standing around in the dark, put a bicycle light on them so you can find them.

What do you think? Leave a comment.

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Messer v. Hi Country Stables Corp., 2013 U.S. Dist. LEXIS 2675, 2013 WL 93183

Messer v. Hi Country Stables Corp., 2013 U.S. Dist. LEXIS 2675, 2013 WL 93183

United States District Court for the District of Colorado

January 8, 2013, Decided; January 8, 2013, Filed

Civil Action No. 11-cv-01500-WJM-MJW

Reporter

2013 U.S. Dist. LEXIS 2675 *; 2013 WL 93183

ALVA MESSER, Plaintiff, v. HI COUNTRY STABLES CORPORATION, Defendant.

Prior History: Messer v. Hi Country Stables Corp., 2012 U.S. Dist. LEXIS 170499 (D. Colo., Nov. 30, 2012)

Counsel:  [*1] For Alva Messer, Plaintiff: Donald L. Salem, Feldmann Nagel, LLC-Denver, Denver, CO.

For Hi Country Stables Corporation, Defendant, Counter Claimant: Kenneth H. Lyman, Malcolm S. Mead, Hall & Evans, LLC-Denver, Denver, CO.

For Alva Messer, Counter Defendant: Donald L. Salem, Michael G. Bryan, Feldmann Nagel, LLC-Denver, Denver, CO.

Judges: William J. Martinez, United States District Judge.

Opinion by: William J. Martinez

Opinion

AMENDED ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on Defendant’s Motion for Summary Judgment. (ECF. No. 41.) Plaintiff Alva Messer (“Plaintiff”) has filed a Response to this Motion (ECF No. 42.) and Defendant Hi Country Stables Corporation (“HCS” or “Defendant”) has filed a Reply. (ECF No. 45.) The Motion is ripe for adjudication.

Having reviewed the briefs and the relevant portions of the record, the Motion for Summary Judgment is granted in part and denied in part.

I. BACKGROUND1

A. Factual Background

On July 16, 2009, Plaintiff Alva Messer purchased a guided horseback ride from Hi County  [*2] Stables. (ECF No. 41 at 3.) Defendant HCS operates commercial horse-back riding at Glacier Creek Stables in Rocky Mountain National Park (“RMNP”). (ECF No. 41 at 7.) HCS is one of two equestrian companies owned by Rex Walker. (Id.) The other equestrian company is Sombrero Ranches, Inc. (“SRI”). (Id.) Before beginning any guided horseback ride, both companies require customers to sign an exculpatory contract, titled “Release” (hereafter “the Release” or “Release Forms”). (Id.) The Release Forms for HCS and SRI are identical, except for the name of the company being released from liability. (Id. at 4.) The Release Forms for HCS and SRI are printed in tablets containing 100 tear-away forms per tablet. Once printed, the printing company delivers the tablets to the offices of HCS and SRI. (Id.)

At the start of the 2009 riding season, one tablet of Release Forms labeled SRI was placed in a box of office supplies for delivery to HCS. (Id. at 5.) For reasons that are unexplained by Defendant, those same Release Forms—which Released SRI from liability—were used by HCS at Glacier Creek Stables on July 16, 2009. (Id. at 5; see also, Exh. C, Walker Dep. at 29:13 – 30:5.)

Typically, when customers  [*3] arrive at HCS, they are informed that they must sign a Release. (Id. at 6; Exh. D, Marshall Dep. at 29.) Amongst other employees at HCS, Dallas Marshall informs customers that they are required to sign the Release and “mark their riding ability.” (Id.)

When the Messers arrived at HCS on July 16, 2009, Marshall followed her normal practice and informed the Messers of the Release. (Id.) She also requested that they indicate their riding ability, which Plaintiff did. (Id.) Following this, and before commencing the guided horseback ride, Plaintiff signed the Release. (Id.) The Release expressly provides that the customer “understands. . .the specific risks. . .arising from riding a horse. . .and that the [customer] nevertheless intentionally agree[s] to assume these risks.” (ECF No. 41, Exh. A.)

After signing the Release, Plaintiff entered the corral where she was assigned her horse before commencing the trail ride. (Id. at 8; see also, Exh B, Alva Messer Dep. at 35:16-24). The wrangler who led the guests on Plaintiff’s trail ride was Terry Humphrey. (Id.)

Plaintiff encountered problems with her saddle during the trail ride which required adjustment by Plaintiff and Humphrey. (ECF No. 41,  [*4] Exh. B, Alva Messer Dep. at 49:1 – 50:1; Exh., Humphrey Dep. at 44:18-25; 45:7 – 46:1; 47:13-22; Exh. F, Donald Messer Dep. at 22:10-17).2

At the midway point, the Messer group stopped to take a rest break. (ECF No. 41, Exh. B, Alva Messer Dep. at 47:10-20). Plaintiff encountered further problems with her saddle—including slippage of the saddle to the horse’s right. (ld. at 50:2-9)

Sometime later, as Plaintiff’s horse was stepping down a “rock stair” in the trail, Plaintiff fell off the right side of the horse (the “Incident.”) (ECF No. 42, Exh. E, Humphrey Dep. at 54:15- 55:10; Exh. F, Donald Messer Dep. at 27:1- 28:6.) Plaintiff allegedly sustained serious injuries and economic loss resulting from the Incident. (ECF No.1 at ¶¶ 14 and 57.)

II. LEGAL STANDARDS

Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A fact is “material” if under  [*5] the relevant substantive law it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)). With this approach of resolving factual ambiguities against the moving party, the Court, as it should, thus favors the right to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

III. ANALYSIS

Defendant’s instant Motion seeks reformation of the Release and moves for summary judgment as to the Plaintiff’s claims—including: negligence; product liability; and, wilful and wanton conduct. If granted, Defendant argues that the Release should bar the negligence and product liability claims. The Court will first address  [*6] this issue.

A. Effect of the Release on the Negligence and Product Liability Claims

1. Reformation

Defendant seeks to reform the Release to reflect the true intent of the parties by substituting the name HCS for SRI. (ECF No. 41 at 22.)

Reformation of a contract is an “equitable remedy, and the formulation of such remedy rests with the court’s discretion.” May v. Travelers Property Casualty Co. 2006 U.S. Dist. LEXIS 80849, 2006 WL 3218852 at *2-3 (D. Colo. 2006, November 6, 2006). “Reformation of a written instrument is appropriate only when the instrument does not represent the true agreement of the parties and the purpose of reformation is to give effect to the parties’ actual intentions.” Maryland Cas. Co. v. Buckeye Gas Prod. Co., 797 P.2d 11, 13 (Colo. 1990).3 Mutual mistake of a contract provides grounds for reformation if the written instrument “does not express the true intent or agreement of the parties.” Segelke v. Kilmer, 145 Colo. 538, 360 P.2d 423, 426-27 (Colo. 1961).

An “essential prerequisite to a court’s power to reform a contract on the ground  [*7] of mutual mistake is the existence of a prior agreement that represents the actual expectations of the parties and provides the basis upon which a court orders reformation.” Maryland Cas. Co., 797 P.2d at 13. Prior agreement must be found from the evidence presented, which must be “clear and unequivocal”, and appropriate under the “circumstances.” Id.
See also, Segelke 360 P.2d at 426-27.

Here, Defendant asserts that the intent of the Release was to bind Plaintiff Alva Messer and Defendant HCS. Defendant contends that reference to SRI on the Release was a mutual mistake and that SRI should be substituted with HCS. The Court agrees. This holding is supported by Plaintiff Messer’s own testimony, which clearly reflects the parties’ common understanding of the signed document and shows acknowledgment by Plaintiff that the Release was, in fact, releasing HCS – not SRI. Such testimony is found in the following passage:

Q. You were told it was a release, correct?

A. Correct.

Q. And did you have any conception or understanding of what that meant?

A. Well, I assume a release is to release the people, you know, the stables.

Q. And when you were presented this at Hi Country Stables, was it your understanding  [*8] that you were releasing Hi Country [Stables]?

A. Correct.

(Messer Deposition at 32:3-22).

Because the above testimony is clear and unequivocal, the Court finds that it reflects the parties’ true intentions of the Release that the contract was between Plaintiff Messer and Defendant HCS.

Additionally, Plaintiff signed the Release at a location owned by HCS immediately before embarking on a trail ride guided by HCS employees. (ECF No. 41, Exh A.) Given that Plaintiff signed the document at HCS, it is difficult to see how the Release was intended to apply to any entity other than HCS.

Accordingly, the Court finds that there was mutual mistake at the time the Release was entered into. Mutual intent of the parties was to enter into an agreement whereby HCS would be released from certain claims. This provides the equitable basis to grant the relief. The Court orders that the name “Sombrero Ranches, Inc.” (SRI) be deleted and substituted with “Hi Country Stables” (HCS) in the Release.

2. Application of Release to Plaintiff’s Negligence Claim

As the Court has found that the Release should be reformed, the next issue is whether the Release shields Defendant from Plaintiff’s negligence claim. For the  [*9] reasons below, the Court concludes that it does.

To determine whether the Release bars Plaintiff’s negligence claim, the Court must consider four factors: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981).4

As to the first factor, Colorado law is clear that businesses engaged in recreational services do not perform services that implicate  [*10] a public duty. This favors Defendant’s position as to the validity of the Release. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 469 (Colo. 2004).

With respect to the second factor, the Court similarly finds for Defendant because horse-back riding is “not an essential service.” Hamill v. Cheley Colorado Camps, 262 P.3d 945, 949-50 (Colo. App. 2011) Horse-back riding is one of choice, not necessity.

As to third factor, this also cuts in favor of Defendant since there is no evidence to suggest that the Release was entered into unfairly. Instead, Plaintiff signed the Release “in consideration for the opportunity” to ride the trail led by HCS wranglers. (ECF No. 41, Exh A.) Plaintiff also indicated her riding ability. This suggests that she had ample time to review the Release and become familiar with its conditions. It is these facts, amongst others, that rebut any notion that the Release was unfair. Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474-475 (D. Colo. 1992).

With respect to the fourth factor, the Court looks to the language of the Release to elicit its intent. The Court must determine “whether the intent of the parties was to extinguish liability and whether  [*11] this intent was clearly and unambiguously expressed.” Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 785 (Colo. 1989). Here, the test is met since the Release specifically uses the word “negligence” throughout the document. Reference to the word negligence expressly indicated that HCS would not be liable for such claims. Also, like the release in Jones, the Release in this case similarly points to the “specific risks” of property and personal injury damage that may “arise out of negligence.” Jones, 623 P.2d at 376. Such language serves to reinforce the intent of the Release and thatPlaintiff agreed to “assume such risks” during the course of the HCS led trail-ride. (ECF No. 41, Exh. A.)

In sum, the Court concludes that the Release shields Defendant from Plaintiff’s negligence claim. To the extent that Defendant’s Motion is directed towards that claim, the Motion for Summary Judgment is granted.5

3. Application of the Release to Plaintiff’s Strict Product Liability Claims

In addressing whether the Release applies to Plaintiff’s product liability claims, the Court finds this result is controlled by existing case law: Boles v. Sun Ergoline, 223 P.3d 724, 727-728 (Colo. 2010). That case held that an agreement releasing “a manufacturer from strict products liability for personal injury, in exchange for nothing more than an individual consumer’s right to have or use the product, necessarily violates the public policy of this jurisdiction and is void.” Id. (emphasis added). The Court holds that this passage has equal application here. As distinct from the negligence claim, Boles provides that the Release does not shield Defendant from the strict product liability claims.

Alternatively, Defendant argues that the broad language of the Release covers product liability claims.  [*13] Clause 2 provides: “that [the Customer] know[s] and understand[s] that horse riding . . . risks of . . . including the risk that [HCS]. . . may act negligently in . . . preparing or maintaining the horse . . . equipment or premises . . .” (ECF No. 41 Exh A.) Nothing in Clause 2 suggests that the Release covers claims which involve “leasing” or “manufacturing” saddles used in conjunction with Defendant’s trail rides, which would give rise to a products liability claim. Because exculpatory agreements are strictly construed against the party seeking exception, Defendant’s argument that the Release bars this claim must fail. Barker v. Colorado Region-Sports Car Club, 35 Colo. App. 73, 532 P.2d 372, 377 (Colo. App., 1974.)6

Accordingly, Plaintiff’s product liability claims are not barred by the HCS Release.7

B. Merits of the Product Liability Claims

Defendant also moves for summary judgment on the merits of Plaintiff’s product liability claim. In these claims, Plaintiff alleges (1) that HCS leased a defective saddle to Plaintiff by placing it in the “stream of commerce” and (2) that HCS manufactured a defective saddle that was used by Plaintiff (ECF No. 41 at 35; ECF No. 25 at ¶ ¶ 36-55.)8 Defendant offers two alternative arguments below as to why grant of summary judgment is justified with respect to these claims. The Court will address each in turn.

1. Horse-Back Riding by HCS is a Service and Does Not Give Rise to Products Liability

Defendant contends that summary judgment should be granted on Plaintiff’s product liability claims because the primary purpose of the contract was the provision of a service—not a product. This, Defendant contends, does not give rise to liability in tort. (ECF No. 41 at 37.) See, Yarbro v. Hilton Hotels, 655 P.2d 822, 828 (Colo. 1982)

To buttress its position, Defendant relies on Kaplan v. C Lazy U Ranch, 615 F. Supp. 234 (D. Colo. 1985). There, Judge John L. Kane of this District Court refused to treat “a saddled horse, or a ride on a horse with a saddle” as a product. Id. at 238. Judge Kane held that it was incongruent with strict product liability doctrine and cited several cases that have refused to extend the concept of strict liability to “persons rendering services.”9
Id. at 238 n.3. Defendant asserts that Kaplan has equal application here.

Plaintiff seeks to distinguish Kaplan by making specific reference to “SADDLE EQUIPMENT” in the Complaint. (See ECF No. 25 at ¶ ¶ 36- 51.) Plaintiff seeks to separate the saddle from the horse, and attempt to succeed on that basis.

The Court finds Kaplan persuasive. Like that case, the Court holds that a saddle (on a horse) is not a product—particularly in the context of horse-back riding services. The Court further finds Plaintiff’s distinction is misplaced because it fails to appreciate that the saddle was incidental to the primary purpose of the contract. Plaintiff entered into a contract for a guided five-hour horse back ride through RMNP. This service primarily relied upon a horse (which is not a product) and a saddle (which incidental to that service).10 Without a product, the product liability claims cannot succeed. Yarbro 655 P.2d at 828.

Because the saddle was only incidental to the contract for services, Plaintiff has failed to show a “trial  [*17] worthy” issue as to her product liability claims. Harper v. Mancos Sch. Dist. RE-6, 837 F.Supp.2d 1211, 1223-24 (D.Colo.2011).

2. Use of the Saddle Did Not Constitute a Lease

In the alternative, Defendant argues that summary judgment is warranted on Plaintiff’s product liability claims because it is not a “seller”of a product. That is, Defendant does not fall within the definition of “seller” under the statute because Defendant is not a “lessor” of products, nor a “manufacturer”. See generally, C.R.S. § 13-21-401; Hidalgo v. Fagen, Inc., 206 F.3d 1013, 1018 (10th Cir. 2000).11 Again, the Court agrees.

Contrary to Plaintiff’s position, the Court finds that Defendant does not “lease” saddles to its customers. Plaintiff signed a Release “in consideration for the opportunity to ride” a horse through RMNP. (ECF No. 41, Exh A.) The “opportunity to ride” does not create a lease. Its use is too short. Nor does it constitute ownership of the saddle itself.

Moreover, HCS cannot be considered a manufacturer because it does not manufacture saddles. (ECF No. 41, Exh. G, Humphrey  [*18] Dep. at ¶11; Exh H, Walker Dep. at ¶ 8.) Plaintiff argues that the “offside billet [of the saddle] is a product and that it became defective while in the course of it distribution from the original manufacturer through Defendant to her as the consumer.” (ECF No. 42 at 34-35). The Court treats this as an admission that Defendant never manufactured the billet. It also supports the finding that no product is involved in the present case.

Plaintiff has failed to show a genuine issue of fact as to whether Defendant leased or manufactured a saddle. Thus, Defendant’s Motion as to both of the product liability claims is granted.

3. Plaintiff’s Argument re Blueflame Gas

Plaintiff argues that Defendant placed a defective saddle “in the course of the distribution process” and is, therefore, liable for product liability. (ECF No. 42 at 33. (emphasis added.)) In support, Plaintiff heavily relies on Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Colo. 1984). There, the defendant purchased propane from Diamond Shamrock. Defendant then transported and sold the propane directly to residential customers. A gas explosion occurred at a residential home. The plaintiff claimed, inter alia, strict liability  [*19] based Defendant’s failure to odorize the propane, making it a defective product. The Supreme Court held that a defective product must have arisen at the time of manufacture or “in the course of the distribution process” to the plaintiff. Id. at 590.

The Court is not compelled to find in Plaintiff’s favor based on Blueflame.12 The saddle in this case was not sold to Plaintiff. The saddle was not part of a distribution process. And, unlike the customers in Blueflame, the Court finds that Plaintiff is not permitted to pursue her product liability claim based on a “distribution process” theory.

Therefore, in addition to the reasons addressed above, Plaintiff’s reliance on Blueflame does not save her product liability claims from summary judgment.

C. Merits of the Wilful and Wanton Claim

Plaintiff’s claim for wilful and wanton conduct is trial worthy. First, a waiver cannot release wilful tortfeasors (alleged or otherwise). The Release has no bearing  [*20] on this claim. Barker v. Colorado Region Sports Car Club, 35 Colo. App. 73, 532 P.2d 372, 377 (Colo. 1974).

Second, willful and wanton conduct requires a mental state “consonant with purpose, intent and voluntary choice.” Brooks v. Timberline Tours, 127 F.3d 1273, 1276 (10th Cir. 1997). Because key facts going to this mental state are disputed, Defendant is not entitled to judgment as a matter of law. For example, Plaintiff contends that Humphrey did not perform the number of saddle “checks” he asserts. (Alva Messer Dep. at 43:4-44:18; 48:3-11; 48:21-49:17.) Plaintiff also disputes whether Humphery noticed the “saddle rolling to the right” during the trail ride. (Id.) These examples reflect material facts ripe for jury determination. If the jury credits Plaintiff’s testimony on these points, it could reasonably find that Defendant’s actions were wilful and wanton.

The Court finds that Plaintiff has shown a genuine dispute of material fact as to her wilful and wanton conduct claim. As to this claim, Defendant’s Motion for Summary Judgment is denied. See Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001).

III. CONCLUSION

Based on the foregoing, the Court hereby ORDERS as follows:

1. Defendant’s  [*21] Motion for Summary Judgment (ECF No. 41) is GRANTED IN PART and DENIED IN PART;

2. Defendant’s Motion for Summary Judgment is GRANTED as to Plaintiff’s claims for negligence and product liability;

3. The Clerk shall enter judgment in favor of Defendant on Plaintiff’s negligence and product liability claims;

4. Defendant’s Motion for Summary Judgment is DENIED as to Plaintiff’s wilful and wanton claim; and

5. Trial will proceed solely on Plaintiff’s willful and wanton claim, as previously scheduled, on March 11, 2013.

Dated this 8th day of January, 2013

BY THE COURT:

/s/ William J. Martinez

William J. Martinez

United States District Judge


Wimmer v. Top Gun Guide Serv., 421 F. Supp. 3d 849, 2019 U.S. Dist. LEXIS 185888, 2019 WL 5558308

Wimmer v. Top Gun Guide Serv., 421 F. Supp. 3d 849, 2019 U.S. Dist. LEXIS 185888, 2019 WL 5558308

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

October 26, 2019, Decided; October 28, 2019, Filed

1:18-CV-01001-CBK

Reporter

421 F. Supp. 3d 849 *; 2019 U.S. Dist. LEXIS 185888 **; 2019 WL 5558308

ANTHONY WIMMER, Plaintiff, v. TOP GUN GUIDE SERVICE, INC., JOHN DOES 1-5, Defendants.

Counsel:  [**1] For Plaintiff Anthony Wimmer: Michael W. Strain, LEAD ATTORNEY, Strain Morman Law Firm, Sturgis, SD; Scott G. Hoy, Hoy Trial Lawyers, Prof. L.L.C., Sioux Falls, SD.

For Defendant Top Gun Guide Service, Inc.: Gordon H. Hansmeier, LEAD ATTORNEY, Rajkowski Hansmeier Ltd., St. Cloud, MN.

Judges: CHARLES B. KORNMANN, United States District Judge.

Opinion by: CHARLES B. KORNMANN

Opinion

 [*851]  MEMORANDUM AND ORDER

This matter is before the Court on defendant Top Gun Guide Service, Inc.’s (“Top Gun”) motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Doc. 14.

BACKGROUND

This case arose from injuries that plaintiff Anthony Wimmer sustained while on a hunting trip hosted by defendant Top Gun near Aberdeen, South Dakota in April of 2015. Doc. 1 at 2; Doc. 6 at 1. Mr. Wimmer is a California resident and Top Gun is a Minnesota corporation. Id. On or about April 9, 2015, Mr. Wimmer arrived in Aberdeen, though he did not hunt on that day. Doc. 15 at 5; Doc. 22 at 1. At some point on April 9th, Mr. Wimmer signed a waiver purporting to release Top Gun from liability arising from the hunting trip. Doc. 15 at 5; Doc. 22 at 2. The release form provided, in pertinent part:

I acknowledge that hunting and fishing entails known and unanticipated risks which [**2]  could result in physical or emotional injury, paralysis, death, or damage to myself; . . . I understand that such risks are essential qualities of the activity. The risks include, among other things: Accidental shootings, or falls to myself . . . trip or fall accidents to myself . . . medical problems from preexisting conditions . . . to myself . . . I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks to others and myself; I fully understand that hunting and fishing is a dangerous activity. I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless [Top Gun] from any and all claims, demands, or causes of action, which are in any way connected with my participation in this activity or my use of [Top Gun] equipment or facilities, including any such claims which allege negligent acts or omissions of [Top gun].

Doc. 17, Ex. D. The parties agree that in his deposition Mr. Wimmer testified that he read the release before signing it and that he did not disagree with anything contained therein. Doc. 15 at 6; Doc. 22 [**3]  at 2-4. Mr. Wimmer also agreed in his deposition that hunting and fishing is a dangerous activity. Anthony Wimmer Dep. at 41:7-9.

On April 10th, Mr. Wimmer arrived at the hunting site and began setting up hunting decoys. Doc. 15 at 7; Doc. 22 at 5. Shortly after having finished setting up the decoys, Mr. Wimmer was standing in the field where the hunt was to take place when he was struck from behind “by either an [all terrain vehicle (ATV)] or sled.” Id. The sled was being towed behind the ATV. Id. The ATV was being operated by a Top Gun guide.

Id. The accident  [*852]  occurred between 3:30 a.m. — 4:30 a.m. Doc. 15 at 4. Mr. Wimmer alleges that he sustained severe injuries. Doc. 1 at 2. •

Defendant argues that “[b]ecause Mr. Wimmer knowingly, voluntarily, and fairly signed a release that unambiguously covers the injuries that he suffered and that does not contravene public policy,” his claims should be dismissed with prejudice. Doc. 15 at 8. Defendant contends that the liability waiver Mr. Wimmer signed before participating in the hunt releases Top Gun from all liability in relation to the ATV accident. Id. In short, Top Gun’s argument relies on the liability waiver being found to encompass [**4]  the harm at issue in this case. Defendant then proceeds to argue that the waiver is valid and its enforcement would not contravene South Dakota’s public policy. Id. at 9-11. Defendant argues that releases involving voluntary recreational activities have withstood attacks that they are contrary to South Dakota’s public policy many times before; only an attempted waiver of conduct rising to the level of willful negligence or intentional tort would contravene the state’s public policy. Id. at 11. Because Mr. Wimmer does not allege willful negligence or any intentional torts, defendant argues that his claims must fail. Id.

Plaintiff responds that the harm that befell him was outside the scope of the waiver. Plaintiff argues that he had no meaningful opportunity to negotiate the terms of the waiver and so it must be viewed as an “anticipatory release and contract of adhesion, which should be viewed with a skeptical and critical eye,” and any ambiguities should be construed against the drafter. Doc. 20 at 5. Plaintiff argues that the waiver, by its terms, only applies to the limited activities of hunting and fishing. Id. Plaintiff argues that his are not hunting injuries because, at the time of the accident, [**5]  he had already finished setting up the decoys and was merely standing in the field waiting to be told what he should do next. Id. at 6. Plaintiff urges that such activity should not be considered hunting. Id.

Plaintiff next argues that even if he was hunting at the time of the accident, the release is contrary to South Dakota law as it purports to waive liability for acts of gross negligence and, so, enforcing it would be against South Dakota’s public policy. Id. at 7. Plaintiff also argues that provisions of South Dakota law related to motor vehicle liability preclude enforcement of the waiver as against the state’s public policy. Id. at 9.

Defendant replies that plaintiff’s reading of the waiver is too narrow, the terms of the waiver are broad enough to cover any injury “in any way connected with” the activity of hunting. Doc. 23 at 3. Thus, defendant contends, the terms of the waiver apply to plaintiff’s injury whether or not he was actively shooting or pursuing birds at the time of the injury. Id. Defendant further contends that setting up decoys is a part of pursuing birds, which is within the definition of hunting adopted in South Dakota’s laws. Id. at 4.

Defendant also argues that enforcing the release against [**6]  plaintiff would not violate South Dakota public policy because plaintiff only claims ordinary negligence, liability for which may be waived. Id. at 5. Defendant argues that plaintiff has produced no evidence that defendant’s agent operated the ATV in a reckless or willfully negligent manner. Id. at 6-7. Defendant argues that there was no disparity in bargaining power that would warrant this waiver being viewed as a contract of adhesion. Id. at 7. Finally, defendant argues that the waiver does not allow Top Gun to circumvent South Dakota’s motor vehicle insurance laws, as plaintiff has claimed, and enforcing the waiver would not be  [*853]  contrary to the public policy those laws espouse. Id. at 8.

LEGAL STANDARD

Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Knutson v. Schwan’s Home Service, Inc., 711 F.3d 911, 913 (8th Cir. 2013). The United States Supreme Court has held that:

The plain language of Rule 56(c) mandates the entry of 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. In such a situation, there can be no genuine issue as to any material [**7]  fact, since a complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (internal quotations omitted).

“As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. That is, to make summary judgment inappropriate, there must be a factual dispute concerning facts the existence or nonexistence of which would “be outcome determinative under [the] prevailing [substantive] law.” Grey v. City of Oak Grove, Mo., 396 F.3d 1031, 1034 (8th Cir. 2005).

Thus, in accordance with Rule 56(c), the party seeking summary judgment must first identify grounds demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Upon such a showing, the burden shifts to the non-movant to present affirmative evidence, beyond the pleadings, showing that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). To meet its burden, the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Rather, the non-movant must be able to “show there [**8]  is sufficient evidence to support a jury verdict in [its] favor.” Nat’l Bank of Commerce v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir. 1999). After this exercise, “we view the facts and the inferences to be drawn from them in the light most favorable to the nonmoving party.” Northport Health Servs. of Arkansas, LLC v. Posey, 930 F.3d 1027, 1030 (8th Cir. 2019).

DISCUSSION

“Because this is a diversity action, we apply the substantive law of the forum state.” Vandewarker v. Cont’l Res., Inc., 917 F.3d 626, 629 (8th Cir. 2019), reh’g denied (Apr. 10, 2019) (citing
N. Oil & Gas, Inc. v. Moen, 808 F.3d 373, 376 (8th Cir. 2015). Under South Dakota law, a waiver of liability is contractual in nature and is governed by contract law. Johnson v. Rapid City Softball Ass’n, 514 N.W.2d 693, 697 (S.D. 1994). When interpreting a contract, “[t]he goal . . . is to see that the mutual intent of the parties is carried into effect.” Nelson v. Schellpfeffer, 2003 SD 7, 656 N.W.2d 740, 743 (S.D. 2003). Courts look to the language of the contract to determine the intent of the parties, Roseth v. Roseth, 2013 SD 27, 829 N.W.2d 136, 142 (S.D. 2013), and afford contractual terms their “plain and ordinary meaning,” Bunkers v. Jacobson, 2002 SD 135, 653 N.W.2d 732, 738 (S.D. 2002) (citation  [*854]  and quotation marks omitted). “When the meaning of contractual language is plain and unambiguous, construction is not necessary” because the “intent of the parties can be derived from within the four corners of the contract.” Roseth, 829 N.W.2d at 142 (citation omitted); see also
Nelson, 656 N.W.2d at 743 (“When the words of a contract are clear and explicit and lead to no absurd consequences, the search for the parties’ common intent is at an end.”).

When a contract is found to be ambiguous, however, “parol evidence [**9]  is admissible to explain the contract but inadmissible to vary or add terms to the contract.” Couch v. Lyon, No. CIV. 12-3029-RAL, 2013 U.S. Dist. LEXIS 160770, 2013 WL 5942607, at *4 (D.S.D. Nov. 5, 2013)
(citing
Roseth, 829 N.W.2d at 142.). A contract is not rendered ambiguous merely because the parties now disagree as to their intent at the time of contracting. Roseth, 829 N.W.2d at 142. “Instead, ‘a contract is ambiguous only when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.'” Id.
(quoting
Vander Heide v. Boke Ranch, Inc., 2007 SD 69, 736 N.W.2d 824, 836 (S.D. 2007)).

The release at issue in the instant case is not ambiguous. Although it must be interpreted and read in a common sense manner. The release, by its terms, covers “all claims, demands, or causes of action, which are in any way connected with [plaintiffs] participation in this activity or [plaintiff’s] use of [Top Gun] equipment…” Doc. 17, Ex. D. Furthermore, plaintiff has not challenged the validity of the release or any of its terms; thus, the Court will apply the release and construe it by its terms, using common sense methods.

Defendant argues that, at the time of injury, plaintiff was in the process of pursuing birds, that is, plaintiff was on a hunting trip, in a hunting field regardless of whether [**10]  he was actively shooting or preparing to shoot at the time. Because plaintiff was pursuing birds at the time he was injured, defendant argues that his injury is “connected with” the activity of hunting. Plaintiff argues that he was done setting up decoys at the time he was injured and, as a result, he was not pursuing birds at the time of the harm—he was merely a man standing in a field. As a matter of law, plaintiff could not have legally been pursuing waterfowl because the accident happened long before legal shooting time. Thus, both parties focused their arguments on what the plaintiff was doing at the time of the accident.

This accident could not, as a matter of law, have been a part of legal hunting. In South Dakota, a hunter may not shoot waterfowl until one half hour before sunrise. At the time of the accident, all preparations for hunting had been completed. The parties were in a waiting period. Instead, plaintiff was struck by a motor vehicle. The fact that plaintiff is claimed to be hunting at the time he was struck by the ATV is irrelevant because being struck by an ATV is not a harm arising out of hunting, especially long before sunrise. In addition, the release makes no [**11]  mention of a motor vehicle accident.

The language in the release, “in any way connected with [plaintiffs] participation in this activity,” is so broad that it necessitates an exercise in line drawing. At some point, it would be absurd to find an activity that, while distantly connected with plaintiff’s participation in the hunt, is covered by a waiver of liability for a hunting trip. For example, if plaintiff had been injured when the car in which he was being transported from the hotel to the hunting grounds was involved in an accident, would any negligence from that activity be covered  [*855]  by the release? It is certainly an activity in some way connected with plaintiff’s participation in the hunt, as the party was on the way to the hunting grounds. But to say that a waiver of liability for a hunting trip covered negligence related to a car trip from the hotel to the hunting grounds would be to stretch the bounds of what general, catch-all provisions of a contract can accomplish.

That is not to say that general contract provisions are not enforceable. Indeed, South Dakota case law has upheld the efficacy of broad waivers of liability. There are generally two lines of reasoning that permeate [**12]  South Dakota case law concerning releases from liability.

First, the more inherently dangerous or risky the recreational activity, the more likely that an anticipatory release will be held valid. That is, individuals who engage in activities like mountain climbing, race car driving, parachute jumping, and the like, are more likely to be held to have an understanding of the risky nature of their chosen activity.

Johnson, 514 N.W.2d at 700 (Wuest, J. concurring) (internal citations omitted). Second, releases are deemed more acceptable when they are written on a separate sheet of paper. Id. It is the first line of reasoning that is most relevant to the instant analysis. 1

The first line of reasoning recognizes that individuals who voluntarily engage in a particularly dangerous activity for recreational purposes must accept a certain amount of risk that is inherent in said activity. That is, when an individual chooses to go skydiving, signs a release with a vendor providing such services, and is injured while hurtling to the earth, he cannot then sue in contravention of that release. Hunting is likewise a dangerous activity; the hunter voluntarily exposes himself to all the dangers of the firearms enthusiast as well [**13]  as those of the outdoorsman. It is agreed that the release in this case covers liability arising out plaintiff’s participation in the activity of hunting. However, plaintiff’s participation in the hunt did not cause his injury. Defendant asserts that setting up decoys is a means of pursuing birds—hunting—but, while that may be true, neither the decoys themselves, nor any part of the process of placing them, caused plaintiff’s injuries.

Each case the Supreme Court of South Dakota has considered relating to the application of a release from liability has involved harm that arose out of the activity for which liability was waived. In Johnson, the signed release concerned the plaintiff’s participation in a softball league. She subsequently “injured her right ankle sliding into third base during a softball game.” Johnson, 514 N.W.2d at 694. In Holzer, the signed release concerned the plaintiff’s presence in the “pit” area of a race track; he was subsequently hit by a tire that flew off one of the racecars and over protective barricades. Holzer, 610 N.W.2d at 789-91. In Lee v. Beauchene, the signed release covered the plaintiff’s participation in an automobile race; subsequently his “car struck a hole [in the track] that he estimated was one [**14]  to one and one-half feet deep. The car flipped.” Lee v. Beauchene, 337 N.W.2d 827, 828 (S.D. 1983). In each of the foregoing cases, the plaintiff’s injury was caused by his or her participation in the activity for which liability was waived. That is, the injury arose from the activity itself. If that were not the case, however, those cases might have turned out quite differently. For instance, if the plaintiff in Holzer had been accidentally shot while working in the pit area, the question of whether he had waived the track’s liability  [*856]  for such harm would have been a different question.

In the instant case, plaintiff’s injury did not arise from his participation in the hunt. He was not accidentally shot by a fellow hunter, he did not strain his back while placing a decoy, nor did he twist his ankle while standing around waiting to be told what to do next. Instead, plaintiff was struck from behind by a motor vehicle at a time before legal hunting could commence, something separate and apart from his participation in the hunt. Thus, while liability was effectively waived for injury arising out of the activities of hunting or fishing, there was no release for the harm that befell plaintiff. The ATV was being driven by Top Gun staff, [**15]  presumably to transport the decoys from the cars to the hunting grounds. At some point in that process, the employee struck plaintiff with the ATV. While such work is in some way connected with the hunt, it is not connected with plaintiff’s participation in the hunt in any way beyond plaintiff’s mere presence on the hunting grounds. When plaintiff signed a release for harm arising out of hunting or fishing, he was simply not there giving up his right to sue for harm arising out of a motor vehicle accident, or any other activity when he could not have been legally hunting.

As the Court finds that the release does not apply to the harm at issue in this case, the parties’ arguments concerning South Dakota’s insurance law and public policy concerning releases of liability in claims for gross negligence, respectively, will not be addressed.

IT IS ORDERED that defendant Top Gun’s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, Doc. 14, is hereby DENIED.

DATED this 26th day of October, 2019.

BY THE COURT:

/s/ CHARLES B. B. KORNMANN

CHARLES B. B. KORNMANN

United States District Judge


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

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

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

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

Plaintiff: Grant Tuttle et al.

Defendant: Heavenly Valley, L.P.

Plaintiff Claims:

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

Holding: for the defendant

Year: 2020

Summary

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

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

Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Court added further clarification to its statement.

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

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

Additionally, a plaintiff does not need to have “‘specific knowledge of the particular risk that ultimately caused the injury. [Citation.] If a release of all liability is given, the release applies to any negligence of the defendant [so long as the negligent act that results in injury is] “‘reasonably related to the object or purpose for which the release is given.'”

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

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

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

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

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

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

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

So Now What?

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

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

  • Inherent Risks of the Activity
  • Assumption of the Risk
  • Release

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

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

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

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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Indemnification fails again in a release. Parent of child having a birthday at climbing gym signed release for the injured child, not her own child.

Indemnification is rarely if upheld in a release. The language does not meet the requirements needed under the law in most states to be an indemnification agreement.

Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

State: Connecticut, Superior Court of, Judicial District of Fairfield At Bridgeport

Plaintiff: Cindy Cannon PPA Emma Cannon

Defendant: Rock Climb Fairfield, LLC, Carabiners Fairfield, LLC and Matthew Conroy

Plaintiff Claims: Negligence

Defendant Defenses: Indemnification by third party

Holding: for the Plaintiff

Year: 2020

Summary

Connecticut climbing gym had mother of a group of girls at a gym for a birthday party sign release for all the girls. After one of the girls was injured and sued, the climbing gym attempted to recover money from the mother who signed the release based on the language of the release in its indemnification clause. That failed.

If failed so badly the court voided the entire release finding it to be an adhesion contract.

Indemnification agreements in releases never work to recover damages from an injured plaintiff.

Facts

We are never made aware of the facts that gave rise to the injury that created this decision. However, since the issue is solely who is liable under contract (release) for the injury it is not really relevant.

The case arises from an incident where the minor plaintiff, Emma Cannon, fell from a climbing wall at the Rock Climb defendant’s indoor rock climbing facility located in Fairfield, Connecticut. The minor plaintiff claims she sustained personal injuries. On behalf of her minor child, Cindy Cannon instituted the present action alleging the facility, its agents and employees were negligent in supervising the rock climbing activities, thereby causing the minor plaintiff’s injuries. The defendants have filed an answer and eight special defenses to the amended complaint.

Thereafter, the Rock Climb defendants filed an apportionment complaint against the defendant Kate Licata, who brought the minor plaintiff, Emma Cannon, and several other girls to the facility for a group birthday party event. The apportionment complaint is dated February 6, 2019.4 The apportionment complaint alleges that Licata was negligent in numerous ways and seeks an apportionment of liability and damages as to Licata for the percentage of negligence attributable to her. The apportionment complaint is not the subject of the motion for summary judgment that is presently before the court. The Rock Climb defendants also filed a cross claim against Licata alleging contractual and common-law indemnity. The cross claim, which is the subject of Licata’s motion for summary judgment, is dated February 22, 2019.

So, the parent of the birthday child signed releases for the children attending the birthday party. When one child was injured and sued the climbing gym, the climbing gym brought the parent who signed the release into the lawsuit based on the indemnification language in the releases she signed.

The release was signed electronically; however, this was not an issue the court seemed interested in looking at.

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

The cross claim alleges that the Rock Climb defendants, who are the third-party plaintiffs, require all invitees to its facility to complete a “Release of Liability and Assumption of Risk” form before participating in rock climbing activities. If the participant is a minor, the form must be signed by the minor’s parent or court-appointed guardian, which Licata was not.

The defendant climbing gym filed a motion for summary judgement arguing the mother should be liable for any damages they pay out on behalf of the injured minor child. This was based on two legal theories the first was the indemnification language found in the release itself.

The release form contains language to the effect that the parent or guardian of the minor has explained the inherent risks of the activity to the minor and the minor understands the said risks and that the minor, nonetheless, wishes to participate in the activities. The release form further provides that “the parent of the minor visitor . . . forever discharge, and agree to indemnify . . . Carabiners Fairfield, LLC, its agents, owners, officers, volunteers, employees, and all other persons or entities acting in any capacity on its behalf . . . from any and all claims, suits, demands, causes of action, which are in any way connected with my or the minor visitor’s visit to the RCF activity site . . . My agreement of indemnity is intended to include claims arising out of losses suffered by me (an adult climber or parent) or the child and losses caused by me or the child. The agreements of indemnity and release include claims of negligence . . . of a Released Party.” The Rock Climb defendants allege that Licata completed an online version of the Release form and electronically signed it on behalf of the minor plaintiff Emma Cannon on October 3, 2016. Thus, Licata is contractually obligated to defend and indemnify the Rock Climb defendants for the injuries and damages resulting from Emma Cannon’s fall at the Rock Climb defendants’ facility pursuant to General Statutes §52-102a.5

The second defense or reason why the mother should be liable was based on common-law indemnification.

The Rock Climb defendants also allege Licata is liable for common-law indemnification, claiming that any injuries sustained by the minor plaintiff were proximately caused, in whole or part, by Licata’s negligence and carelessness in multiple ways. Among these allegations are failing to supervise and monitor the minor; failing to instruct the minor; and failing to warn the minor of the dangerous nature and risks of the activity. Lastly, the Rock Climb defendants argue that a substantial amount of discovery remains outstanding and various issues of fact are yet to be settled, and therefore, it argues that Licata’s summary judgment motion should be denied.

To succeed on an indemnification agreement the court found under Connecticut law the defendant climbing gym must show the following.

A party may bring an indemnification claim based on the terms of an indemnity agreement . . . [A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . . There is no requirement that a party seeking indemnification must assert allegations of exclusive control (or any of the other elements of a claim for indemnification based on active-passive negligence) in order to state a legally sufficient claim for contractual indemnification.

An indemnification agreement in Connecticut has four elements.

“The essential elements for a cause of action based on breach of contract are (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party, and (4) damages . . . [and] causation.”

The plaintiff argued that the entire release was void because of two prior Connecticut court decisions.

Lastly, the Reardon court noted that the release that the plaintiff signed broadly indemnifying the defendants from liability for damages resulting from the defendants’ own negligence was a classic contract of adhesion of the type that this court found to be in violation of public policy in Hanks.

(See Reardon v. Windswept Farm, LLC, et al., 280 Conn. 153; 905 A.2d 1156; 2006 Conn. LEXIS 330
and
States that do not Support the Use of a Release.)

The release stated the mother who signed the release knew that “the defendants’ [facilities or equipment] were maintained in a reasonably safe condition. The court found this to be utterly bogus (as do I). The mother had no knowledge or experience rock climbing and no clue, whether the facility was in good condition.

To the contrary, it was the defendants, not the plaintiff or the other customers, who had the “expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone [could] properly maintain and inspect their premises, and train their employees in risk management.” In particular, the defendants acknowledged that they were responsible for providing their patrons with safe horses, qualified instructors, as well as properly maintained working equipment and riding surfaces.

This was the same position a Connecticut court in Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 885 A.2d 734; 2005 Conn. LEXIS 500, that the requirements in the release were absurd because the knowledge necessary to know and understand if the activity was safe or the equipment was in good working order was solely within the knowledge and experience of the defendant.

As we concluded in Hanks, it is illogical to relieve the defendants, as the party with greater expertise and information concerning the dangers associated with engaging in horseback riding at their facility, from potential claims of negligence surrounding an alleged failure to administer properly the activity.

The court then, using the issue of the ability of the mother who signed the release to contract about the equipment found the release to be a contract of adhesion.

Specifically, we have noted that the most salient feature of adhesion contracts is that they are not subject to the normal bargaining processes of ordinary contracts, and that they tend to involve a standard form contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who has little choice about the terms.

The issue of whether or not the release was an adhesion contract had been touched on lightly; however, the court eventually unloaded on the defendant finding the release to be a contract of adhesion, which voids releases in most states.

…that the release that the plaintiff signed broadly indemnifying the defendants from liability for damages resulting from the defendants’ own negligence was a classic contract of adhesion of the type that this court found to be in violation of public policy in Hanks.

Most states look at recreation, and since it is not a necessity, something needed for the modern survival of a person or family as not being contacts of adhesion. However, in Connecticut, there is no review of why the release is signed, just a review of the specific language in the release to determine if it is an adhesion contract.

The court then looked at the release under the requirements of the Connecticut Supreme Court and found the release lacking as well as the indemnification language in the release.

In the present case, the defendant’s facility was open to the general public regardless of a patron’s experience level. The minor plaintiff was a ten-year-old female. The defendants have admitted that they provided instruction to the group of minors attending the birthday celebration at the defendants’ facility. Neither the minor plaintiff or Licata provided any of the equipment to be used. Licata, herself, did not provide training, guidance or supervision to the minors, including the minor plaintiff. Licata possessed no special knowledge regarding rock climbing or bouldering activities including training and safety procedures other than an initial orientation by RCF employees. Maklad testified at her deposition that the orientation lasted only five to ten minutes. The RCF defendants/third-party plaintiffs admit that there was zero expectation that Licata would “train and guide climbers” or to inspect various facility equipment. RCF argues that they did expect that parents and guardians would supervise children. Thus, there is a question of fact as to whether or not Licata was adequately supervising the minor plaintiff Cannon when she fell. The court disagrees.

And then tore the release apart based on the lack of bargaining power between the parties.

In this case, signing the release provided by RCF was required as a condition of the plaintiff’s participation in the bouldering and rock climbing activities at the RCF facility. There was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not to allow the minor guests who accompanied her to the birthday party to participate. Licata had no bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. “This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the risk more effectively then the defendants.”

The court then looked at the common-law indemnification argument of the climbing gym. For one party to hold the other party liable under common law, the following facts must be in place.

(1) the third party against whom indemnification is sought was negligent; (2) the third party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting harm; (3) the third party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the third party’s negligence, had no reason to anticipate it, and reasonably could rely on the third party not to be negligent.”

Just looking at these requirements at a climbing wall, you know the mother of a child hosting a birthday party, there is not going to meet any of these requirements.

The defendant climbing wall could not produce any evidence that the mother was in exclusive control of the situation to the exclusion of all others.

The mother’s motion for summary judgment was granted, and the plaintiff’s indemnification claims failed.

So Now What?

Overall, the language in this release did not meet Connecticut law on many counts. However, the court found the language to be so one-sided and so bad that if found multiple ways to void it. Releases must be written for the activity, the guests and the law of the state where the release will be used. When you have a state like Connecticut, where releases are always on a thing line between valid and void, the language is critical to succeed.

Indemnification claims in a release have never worked. The only way that the claims may work, would be against third parties when the liability is created by the guest. An example of something like that might be a guest on a trip starts a forest fire. The special-use permit or concession agreement generally holds the outfitter/permittee/concessionaire liable for the damages caused by the fire. The indemnification clause might work in that situation to recover some of the money to reimburse the outfitter.

(Always make sure your outfitter liability policy provides coverage for actions to third parties by your guests.)

However, I have never found a case where indemnification has worked to recover damages for an injury from parents, friends or the leader of the group of kids. Maine looked at the language of indemnification in a release and seemed to indicate it would be supported if written correctly. See Maine follows the majority and does not allow a parent to sign away a minor’s right to sue.

The situation that created this mess is classic. A group of kids is coming to your business or program, and no one has notified the parents of a requirement to sign a release in advance. Upon arrival, someone who does not know or understand or a facility that does not care just has the adult with the kids sign the paperwork. That does not work.

Either get the parent’s signatures on documents or spend most of the time creating an assumption of the risk defense by educating the kids.

Don’t waste the paper or electrons having a youth leader or mother responsible of the group sign the release for the rest of the children in attendance. It just does not work.

This will be the fourth article I’ve written about Connecticut courts voiding releases. If you work or operate in Connecticut you are probably working in a state that does not support the use of a release.

For more information about indemnification see:

Indemnification agreements? What are you signing?

Indemnification between businesses requires a contract outlining the type of indemnification and a certificate of insurance from one party to the other so the insurance company knows it is on the hook

What do you think? Leave a comment.

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Nevada Appellate court voids release because statements made between the riders & the mechanical bull operator creates a requirement to maneuver the bull in an easy fashion which voided the release. Plaintiff also claimed battery from the actions of the defendant.

A strong and well written dissent argued to enforce the release on general contract principals.

Kuchta v. Opco, 2020 Nev. App. Unpub. LEXIS 549, 2020 WL 3868434

State:
Nevada, Court of Appeals of Nevada

Plaintiff: Joseph Kuchta

Defendant: Sheltie Opco, LLC, a Nevada Limited Liability Company, d/b/a John Ascuaga’s Nugget, d/b/a Gilley’s Nightclub; and Wolfhound Holdings, LLC, a Delaware Limited Liability Company

Plaintiff Claims: Negligence, Negligence Per Se, Negligent Hiring and Respondent Superior, Negligent Supervision, Negligent Entrustment, and Battery

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2020

Summary

Bar patrons wanted to ride the mechanical bull. Before doing so they made the bull operator agree to an easy ride. After one of the riders was thrown and suffered an injury, they sued saying the agreement between the operator and the riders for an easy ride voids the release. The Nevada Court of Appeals agreed.

Facts

While socializing with friends at Gilley’s Nightclub in Sparks, Nevada, a bar owned by respondent Sheltie Opco, Kuchta and his friends observed an employee riding a mechanical bull. As the employee was riding the bull, another employee used a joystick to control the bull’s movements. After the employee demonstrated how easy and non-challenging it was to engage safely in a slow ride, she stepped off the bull.

Sometime later that night, Kuchta and his friends were considering riding the bull. Kuchta’s group approached the same employee, who they had watched ride the bull earlier, and who was now operating the joystick and controlling the ride. Two different people within the group that Kuchta was part of conversed with the employee about riding the mechanical bull.

Viewing all factual allegations in a light most favorable to Kuchta, his friends told the employee that each person in their group wanted an easy ride, which based on a difficulty scale of one to ten, they described as a two (with one meaning not moving at all), which the employee said she could provide. The friends indicated that everyone in the group was a novice and wanted a ride similar to the ride the employee had demonstrated. Furthermore, they told the employee that everyone should be able to step off the bull once the ride concluded, just as the employee had been able to do earlier that night after her ride. The employee agreed to provide the type of a ride Kuchta’s group requested. Thus, Kuchta’s and the employee’s understandings and expectations regarding Kuchta’s ride were that it would be easy, at a level two or at a low speed, and that Kuchta would be able to dismount after the ride was finished.

Before any person could ride the mechanical bull, however, Gilley’s required each patron to sign a previously prepared Assumption of Risk, Release, Indemnity, and Medical Treatment Authorization Agreement (Agreement), also known as a written waiver. The Agreement listed potential risks and possible injuries involved in riding the bull, including broken bones, and also released Sheltie Opco from any and all liability for injuries or negligence that occur from all risks, both known and unknown. Kuchta signed the Agreement, although the record does not reveal when it was signed in relation to the conversations described above.

According to Kuchta, once on the bull, the ride was initially slow, as had been requested. However, after approximately 20 seconds, the operator significantly increased the speed and violence of the bull’s movements. Kuchta was thrown from the bull and suffered a fractured pelvis.

Kuchta sued Sheltie Opco alleging: negligence, negligence per se, negligent hiring and respondent superior, negligent supervision, negligent entrustment, and battery. Sheltie Opco moved for summary judgment on all claims, arguing there was no genuine issue of fact because Kuchta expressly assumed the risks of the ride and consented to the battery when he signed the Agreement before riding the bull. The district court granted Sheltie Opco’s motion for summary judgment finding that Kuchta expressly assumed the risks of riding the bull by signing the Agreement, including consenting to the touching that was the basis for his battery claim.

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

The basic issue that pops up in this case is the conversation between the operator of the mechanical bull and the plaintiff who set the conditions for the plaintiff to ride the bull. Normally, verbal agreements are void and only the paper agreements are valid when a contract is signed. This is called the Parol Evidence rule. Oral statements made prior to the signing of the written agreement are of no value in interpreting the contract. Only the information contained in the four corners of the paperwork are reviewed.

This is a scary issue because any statement made by your staff could be used to defeat a release.

Kuchta argues that he did not expressly assume the risk because the operator specifically agreed to provide the requested slow ride (i.e., an intensity of two out of ten) and the operator instead ultimately conducted a wild ride exceeding his expectations.

Does a conversation between a customer and an employee, (or staff member) change a release? More importantly, does it create a modification of the experience so that the release does not cover the risk. Normally no, but in this case, Yes.

The court then looked at the requirements for a valid release under Nevada’s law.

(1) Contracts providing for immunity for liability for negligence must be construed strictly since they are not favorite[s] of the law . . . (2) such contracts must spell out the intention of the party with the greatest particularity . . . and show the intent to release from liability beyond doubt by express stipulation and no inference from the words of general import can establish it . . . (3) such contracts must be construed with every intendment against the party who seeks immunity from liability . . . (4) the burden to establish immunity from liability is upon the party who asserts such immunity . . . .

Taken as a whole, the requirements are not different in most states. However, the Nevada Appellate court looked further at the requirements to determine whether the plaintiff did assume the risk. Where the risks identified in the release or known by the plaintiff.

However, our inquiry does not stop here as it pertains to the waiver’s validity; we must determine whether Kuchta expressly assumed the risks contemplated by the waiver.

In Nevada, releases are looked at as proof, the plaintiff assumed the risk. These are one-way courts look at releases; however, it is a minority view. The release must then contain the necessary language for the defendant to prove the plaintiff knew and assumed the risk that caused his or her injury.

The court has combined, under Nevada’s law, the relationship of contract, the release, and the risks outlined or assumed by contract in the release. Meaning, not only must you agree not to sue, the risks you assume must be specific in the release.

“Express assumption of risk[‘s] . . . vitality stems from a contractual undertaking that expressly relieves a putative defendant from any duty of care to the injured party; such a party has consented to bear the consequences of a voluntary exposure to a known risk.”

A release under Nevada’s law is an express assumption of risk agreement. Express meaning written.

Generally, “[a]ssumption of the risk is based on a theory of consent.” For a party to assume the risk there are two requirements. “First, there must have been voluntary exposure to the danger. Second, there must have been actual knowledge of the risk assumed.” Actual knowledge of the danger by the party alleged to have assumed the risk is the essence of the express assumption of risk doctrine.

The plaintiff in this case did not consent to the ride he was given, even though he signed away his right to sue. The failure of the defendant to prove the plaintiff assented to the ride he received, which was not in the written release, was cause for the release to fail, possibly.

To determine whether the party signing had actual knowledge of the risks assumed, courts must consider “[(1)] the nature and extent of the injuries, [(2)] the haste or lack thereof with which the release was obtained, and [(3)] the understandings and expectations of the parties at the time of signing.”

The first two requirements were met in this case. However, the third requirement was not met. The plaintiff did not have an understanding or expectations of the parties at the time the release was signed.

These conflicting allegations create a genuine dispute of material fact as to the expectations of the parties and as to whether the bull operator’s conduct failed to meet those expectations. Because Kuchta and Sheltie Opco each presented consistent and conflicting facts regarding both parties’ expectations of the ride, and knowledge of the risks involved in a level two-of-ten or easy ride, a trier of fact should have resolved this issue. Thus, the district court erred by granting summary judgment in favor of Sheltie Opco as to Kuchta’s negligence claims.

No party, who signs a release, expects to be injured or killed. So, this third requirement is different. No guest signs the release with an understanding they can’t sue. They sign the release because it is part of the paperwork needed to engage in the activity. If you made the effort to make sure the person signing the release understood the expectations of them from you when signing the release, many might not.

So, this decision in Nevada does not void releases. It does, however, create an additional requirement in the relationship between your guests and your operations. The risks the client is undertaking must be known and assumed by the plaintiff prior to undertaking the activity. That risk must be expressed in the release.

The second argument the plaintiff made that the court undertook was the battery claim. Most people understand the TV term assault and battery as a criminal charge. However, battery has been an intentional tort for centuries. “A battery is an intentional and offensive touching of a person who has not consented to the touching.”

In this case, the touching is not an actual contact between the plaintiff and the defendant but causing the plaintiff to be “touched” by the landing surface which caused his injury.

The court looked at this intentional tort as greater than normal negligence.

“[G]eneral clauses exempting the defendant from all liability for negligence will not be construed to include intentional or reckless misconduct, or extreme and unusual kinds of negligence, unless such intention clearly appears.”

This phrase is quite interesting. Like all other states, a release does not cover intentional, reckless, or extreme conduct on the part of the defendant. At the same time, the court seemed to open the idea that a release under Nevada’s law could stop a claim for intentional, reckless, or extreme conduct if it was intentional and clear in the release.

Because there was a conflict between the plaintiff and the defendant as to the facts surrounding the battery, the Appellate court found the motion for summary judgment should not have been granted.

The dissent in this case would have upheld the release based on basic contract law. The dissent sets out a thorough review of contract law in Nevada.

Summing up, what 500 years of contract law tell us is this:

(1) a contract means what its words say and an unambiguous contract “will be enforced as written”;

(2) what the contractual words say is what they objectively convey in their ordinary sense regardless of what the parties might have personally thought or intended in their heads;

(3) the final contract supersedes all earlier verbal negotiations;

(4) parol evidence may only be used to clarify a term that is ambiguous, and an ambiguity does not arise merely because the parties disagree on what they think the contract means;

(5) parol evidence may never be used to contradict an express term of a contract, whether the contract is integrated or not;

(6) parol evidence may never consist of earlier negotiations inconsistent with the final contract, whether the final document is integrated or not;

(7) when there is no dispute regarding what the words of the contract consist of (and there is no dispute regarding what any parol evidence admitted to clarify an ambiguity actually is), and the only remaining dispute is over what those undisputed words and parol evidence mean, then all that remains is a pure question of law for the court.

The dissent specifically focused on the Parol Evidence Rule which in most cases have prevented the conversation between the patrons and the mechanical bull operator from being offered into evidence.

The court voided the release and allowed the intentional tort of battery to proceed.

So Now What?

This upends release law in Nevada. Your release must be able to prove the guest understood the risks they may encounter, All of the risks.

Any statements made by your staff, could alter your release, worse, alter the understanding of the release or the risks, creating an issue that will have to go to trial to determine.

Bringing an intentional tort into a lawsuit is another game changer. Raft guides that intentional hit a rock, bump a boat, or even flip a boat will create liability in Nevada for any injury their customers receive.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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

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

Author: Outdoor Recreation Insurance, Risk Management and Law

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

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The interaction between a release and worker’s compensation laws for an employee

If you are injured at work and covered by worker’s compensation you cannot sue your employer. However, you might be able to sue a third party who may be liable for injury.

However, the employer of the plaintiff had the plaintiff sign a release that prevented the employee from suing the place where he was injured, which was upheld by the court.

Merlien v. JM Family Enters, 2020 Fla. App. LEXIS 10525

State: Florida, Court of Appeal of Florida, Fourth District

Plaintiff: Diveston Merlien, Appellant

Defendant: JM Family Enterprises, Inc., Sheridan 441, LLC and Bendles Rentals, LLC

Plaintiff Claims: premises liability

Defendant Defenses: release

Holding: for the defendant

Year: 2020

Summary

The defendant security firm provided onsite security personnel to its clients. The security firm required its employees to sign a release that limited their recovery for an injury to their worker’s compensation benefits. The release would not be effective necessarily against the employer. However, it was effective in keeping the employee from suing the customer of the security firm.

Facts

The plaintiff was employed by AlliedBarton, a firm that provides security services for various clients. He was assigned to work as a security guard for one of those clients. The plaintiff was allegedly injured due to a slip and fall on stairs at the JM facility where he was assigned to work. He subsequently filed a premises liability suit against JM, alleging that his slip and fall was proximately caused by JM’s negligent maintenance of the stairs.

The primary focus of this appeal is the enforceability of a waiver which the plaintiff signed as a condition of employment that prohibits suit against any customer of AlliedBarton for injuries covered by the workers’ compensation statutes.

Two years after the plaintiff filed his complaint, JM filed a motion for summary judgment, arguing that the plaintiff waived his right to bring suit by executing the above waiver at the commencement of his employment. After hearing argument from both parties, the trial court granted JM’s motion for summary judgment. This timely appeal followed.

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

Worker’s compensation is an insurance system created to take care of the medical bills and lost wages of workers who are injured on the job. Before the creation of the worker’s compensation system, an injured worker had to sue an employer to recover their damages from the injury.

In return for receiving the benefits of worker’s compensation, you give up your right to sue the employer. You can waive those benefits, pay back any benefits or money paid and sue the employer, but that is usually an unwise investment in time and money.

In this case, the employer requested the employees to sign a release, so they could not sue third party customers of the employer. In this case, the security company that employed the plaintiff had their employees, such as the plaintiff, on the property of the customers. The release provided if the employee was injured in a claim that was covered by worker’s compensation, that was the extent of the recovery they could receive. They could not sue the customer of the employer for damages.

This is a smart move on the part of the employer. The employer would lose a customer every time an employee was hurt on the job if the employee sued the customer.

It is important to understand the release did not stop lawsuits against the employer, only customers of the employer. Worker’s compensation statutes stop lawsuits against the employer.

The plaintiff first argued the release was ambiguous and unenforceable. In Florida for a release was enforceable when the release could be read by an ordinary and knowledgeable person who understood what they were contracting away.

Florida courts have upheld the enforceability of exculpatory provisions in contracts only when the language of the provision clearly and unambiguously communicates the scope and nature of the disclaimer.

The law also required a clear an understandable intent.

…provisions are deemed to be unambiguous and enforceable when the language unequivocally demonstrates a clear and understandable intention for the defendant to be relieved from liability such that an ordinary and knowledgeable person will know what he or she is contracting away.

The court found the release was easily read, understood and had no confusing language or made any promises to the signor.

The next argument the plaintiff made was the release was void because it violated Florida’s public policy.

Public policy disfavors exculpatory contracts because they relieve one party of the obligation to use due care. . . . Nevertheless, because of a countervailing policy that favors the enforcement of contracts, as a general proposition, unambiguous exculpatory contracts are enforceable unless they contravene public policy.”

A release violates Florida’s public policy “it is injurious to the interests of the public or contravenes some established interest of society.” The plaintiff argued that Florida’s law allowed employees who received worker’s compensation payments to sue third parties and recover those benefits if the third parties were negligent.

The appellate court held that the law allowing those third-party lawsuits were not a mandatory law but a permissive law. It allowed the lawsuits but did not require them.

The court did open up one area that it might have sided with the plaintiff. If the release was mandatory for employment, the court stated the plaintiff could have rejected the release.

The court concluded by noting that the plaintiff voluntarily entered into the agreement and declined to invalidate the contract on the basis that it was offered on a “take it or leave it” basis.

However, the plaintiff did not plead that in this case or argue it at the time of his employment; Therefore, it was moot. The court also, in one effect closed the loop hole.

…the plaintiff here was not coerced into signing the agreement and voluntarily agreed, as a condition of employment, to limit his avenues for recovery with respect to any future injuries to the State’s workers’ compensation program. The disclaimer was limited in both scope and application and did not prevent the “the quick and efficient delivery of disability and medical benefits to an injured worker.”

The court held the release was valid and prevented the lawsuits against the customer of his employer.

So Now What?

This is a very interesting and carefully thought-out use of a release. The purpose is to keep the clients of the firm happy at the expense of its own employees.

However, it shows another way a release can be used to stop litigation.

What do you think? Leave a comment.

Copyright 2020 Recreation Law (720) 334 8529

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




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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

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

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disclaimer, ambiguity, exculpatory, unambiguous, contravene, unenforceable, customer, workplace, Athletic, work-related, waive, void


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

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

Tuttle v. Heavenly Valley, L.P.

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

February 5, 2020, Opinion Filed

G056427

Reporter

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

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

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

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

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

Disposition: Affirmed.

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

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

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

Opinion by: DUNNING, J.

Opinion

INTRODUCTION

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

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

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

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

FACTUAL AND PROCEDURAL BACKGROUND

I.

The Release

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

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

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

II.

The Accident and the Lawsuit

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

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

III.

The Jury Trial

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

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

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

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

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

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

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

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

IV.

The Special Verdict

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

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

“Yes X No __

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

“Yes __ No X

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

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

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

“Yes X No __”

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

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

V.

Entry of a Defense Judgment

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

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

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

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

VI.

Plaintiffs’ Post judgment Motions

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

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

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

DISCUSSION

I.

The Release Covered Tuttle’s Accident.

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

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

A.

Overview: Assumption of the Risk

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

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

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

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

However, unlike both implied primary and secondary assumption of the risk, which focus on risks inherent in an active sport like skiing, express assumption of the risk focuses on the agreement itself. A valid release “operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action.” (Knight, supra, 3 Cal.4th at p. 309, fn. 4, italics added.) The legal issue in an express assumption of the risk case “‘is not whether the particular risk of injury appellant suffered is inherent in the recreational activity to which the Release applies [citations], but simply the scope of the Release.'” (Hass, supra, 26 Cal.App.5th at p. 27.)

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

There is an outer limit to the scope of a release from liability for one’s own negligence in the recreational sports context: As a matter of public policy, if a skier proves the operator unreasonably increased the inherent risks to the level of gross negligence, express assumption of the risk is no longer a viable defense; and the operator will be liable for damages notwithstanding the existence of a valid release of liability for ordinary negligence. (See City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777, 62 Cal. Rptr. 3d 527, 161 P.3d 1095 (Santa Barbara).)

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

B.

Analysis

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

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

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

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

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

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

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

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

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

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

Addressing the release, Hass held: “By signing the Release in the instant case, we conclude that [the decedent] intended both to assume all risks associated with his participation in the race, up to and including the risk [*23]  of death, and to release [the defendant] (on behalf of himself and his heirs) from any and all liability with respect to any injuries he might suffer as a result of his participation. This was sufficient to block the [plaintiffs’] wrongful death claim for ordinary negligence.”10 (Hass, supra, 26 Cal.App.5th at p. 27.)

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

II.

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

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

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

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

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

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

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

III.

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

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

A.

Legal Principles Governing Special Verdicts

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

B.

The Trial Court’s Ruling

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

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

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

C.

Analysis

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

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

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

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

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

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

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

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

IV.

Plaintiffs are not Entitled to a New Trial.

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

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

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

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

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

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

DISPOSITION

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

DUNNING, J.*

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

 


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

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

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

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

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

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

Plaintiff Claims: Negligence

Defendant Defenses: Arbitration Clause & Release

Holding: for the Plaintiffs

Year: 2019

Summary

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

Facts

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

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

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

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

The court looked at the plaintiff’s arguments first.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court then looked at the release.

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

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

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

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

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

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

Which is exactly what the court did.

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

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

So Now What?

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

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

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

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

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

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

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

What do you think? Leave a comment.

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Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

Cannon v. Rock Climb Fairfield, LLC, 2020 Conn. Super. LEXIS 261

Superior Court of Connecticut, Judicial District of Fairfield At Bridgeport

February 13, 2020, Decided; February 13, 2020, Filed

FBTCV186079642S

Reporter

2020 Conn. Super. LEXIS 261 *

Cindy Cannon PPA Emma Cannon v. Rock Climb Fairfield, LLC et al.

Notice: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

Prior History: Cannon v. Rock Climb Fairfield Llc, 2019 Conn. Super. LEXIS 1819 (Conn. Super. Ct., Feb. 11, 2019)

Judges:  [*1] Richard E. Arnold, Judge Trial Referee.

Opinion by: Richard E. Arnold

Opinion

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #142

The third-party defendant Kate Licata has moved for summary judgment on Counts One and Two of the Cross Complaint filed by the defendants third-party plaintiffs, Rock Climb Fairfield, LLC, Carabiners Fairfield, LLC and Matthew Conroy.1 Count One of the cross complaint alleges contractual indemnification and Count Two alleges common-law indemnification. The cross complaint is dated February 22, 2019. The third-party defendant Licata’s motion for summary judgment is dated September 9, 2019. The defendant third-party plaintiff’s objection is dated October 14, 2019.2 Licata’s reply to the objection is dated October 17, 2019. The court heard oral argument on October 21, 2019.

The case arises from an incident where the minor plaintiff, Emma Cannon, fell from a climbing wall at the Rock Climb defendant’s indoor rock climbing facility located in Fairfield, Connecticut. The minor plaintiff claims she sustained personal injuries. On behalf of her minor child, Cindy Cannon instituted the present action alleging the facility, its agents and employees were negligent in supervising the rock [*2]  climbing activities, thereby causing the minor plaintiff’s injuries.3 The defendants have filed an answer and eight special defenses to the amended complaint.

Thereafter, the Rock Climb defendants filed an apportionment complaint against the defendant Kate Licata, who brought the minor plaintiff, Emma Cannon, and several other girls to the facility for a group birthday party event. The apportionment complaint is dated February 6, 2019.4 The apportionment complaint alleges that Licata was negligent in numerous ways and seeks an apportionment of liability and damages as to Licata for the percentage of negligence attributable to her. The apportionment complaint is not the subject of the motion for summary judgment that is presently before the court. The Rock Climb defendants also filed a cross claim against Licata alleging contractual and common-law indemnity. The cross claim, which is the subject of Licata’s motion for summary judgment, is dated February 22, 2019.

The cross claim alleges that the Rock Climb defendants, who are the third-party plaintiffs, require all invitees to its facility to complete a “Release of Liability and Assumption of Risk” form before participating in rock climbing [*3]  activities. If the participant is a minor, the form must be signed by the minor’s parent or court-appointed guardian, which Licata was not. The release form contains language to the effect that the parent or guardian of the minor has explained the inherent risks of the activity to the minor and the minor understands the said risks and that the minor, nonetheless, wishes to participate in the activities. The release form further provides that “the parent of the minor visitor . . . forever discharge, and agree to indemnify . . . Carabiners Fairfield, LLC, its agents, owners, officers, volunteers, employees, and all other persons or entities acting in any capacity on its behalf . . . from any and all claims, suits, demands, causes of action, which are in any way connected with my or the minor visitor’s visit to the RCF activity site . . . My agreement of indemnity is intended to include claims arising out of losses suffered by me (an adult climber or parent) or the child and losses caused by me or the child. The agreements of indemnity and release include claims of negligence . . . of a Released Party.” The Rock Climb defendants allege that Licata completed an online version of the Release [*4]  form and electronically signed it on behalf of the minor plaintiff Emma Cannon on October 3, 2016. Thus, Licata is contractually obligated to defend and indemnify the Rock Climb defendants for the injuries and damages resulting from Emma Cannon’s fall at the Rock Climb defendants’ facility pursuant to General Statutes §52-102a.5

The Rock Climb defendants also allege Licata is liable for common-law indemnification, claiming that any injuries sustained by the minor plaintiff were proximately caused, in whole or part, by Licata’s negligence and carelessness in multiple ways. Among these allegations are failing to supervise and monitor the minor; failing to instruct the minor; and failing to warn the minor of the dangerous nature and risks of the activity. Lastly, the Rock Climb defendants argue that a substantial amount of discovery remains outstanding and various issues of fact are yet to be settled, and therefore, it argues that Licata’s summary judgment motion should be denied.

The plaintiff cross claim defendant, Licata, argues that the defendants cross claim plaintiffs’ claims are void as against public policy as a result of the decision in Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005), [*7]  regarding any waiver signed by Licata, and any waiver signed by Licata was a contract of adhesion. Licata argues that she was not given any opportunity to negotiate the terms of the Release document, which was presented to her on a “take or leave it” basis. It was the Rock Climb defendants who were responsible for training Licata and/or the minor plaintiff to ensure safe rock climbing, as Licata claims she did not possess the knowledge, experience or authority to ensure the rock climbing facility was in a safe condition. Additionally, Licata argues she was not in control of the situation on the date in question, and the cross claim does not even allege she was in control of the situation. Therefore, any claim for common-law indemnification also fails as a matter of law.

I

Summary Judgment

The legal standard governing summary judgment motions is well settled. Summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted 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.” Practice Book §17-49. “A material fact is a fact that will make a difference in the result of the case . . . The facts [*8]  at issue are those alleged in the pleadings.” (Internal quotation marks omitted.) Morrissey-Manter v. Saint Francis Hospital & Medical Center, 166 Conn.App. 510, 517, 142 A.3d 363, cert. denied, 323 Conn. 924, 149 A.3d 982 (2016). Moreover, “[a] genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.” (Internal quotation marks omitted.) Rickel v. Komaromi, 144 Conn.App. 775, 790-91, 73 A.3d 851 (2013).

“The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 426, 165 A.3d 148 (2017). “Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. [H]e must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” (Internal quotation marks omitted.) [*9]  Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 802-03, 842 A.2d 1134 (2004). Consequently, on a motion by defendant for summary judgment the burden is on the defendant to negate each claim as framed by the complaint. Squeo v. Norwalk Hospital Ass’n, 316 Conn. 558, 594, 113 A.3d 932 (2015). “It necessarily follows that it is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.” (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 229, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).

“A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings.” (Internal quotation marks omitted.) Morrissey-Manter v. Saint Francis Hospital & Medical Center, 166 Conn.App. 510, 517, 142 A.3d 363, cert. denied, 323 Conn. 924, 149 A.3d 982 (2016). Moreover, “[a] genuine issue has been variously described as a triable, substantial or real issue of fact . . . and has been defined as one which can be maintained by substantial evidence . . . Hence, the genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.” (Internal quotation marks omitted.) Rickel v. Komaromi, 144 Conn.App. 775, 790-91, 73 A.3d 851 (2013). “Because litigants ordinarily have a constitutional right to have issues [*10]  of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. [H]e must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” (Internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 802-03, 842 A.2d 1134 (2004).

II

Additional Discovery Argument

In their objection to summary judgment, the RCF defendants argue several times that summary judgment would be inappropriate because discovery is not complete. The court has before it the scheduling orders submitted by the parties, as signed by legal counsel for the RCF parties and the plaintiff. These scheduling orders filed on February 22, 2019,were approved by the court (Kamp, J.) on March 7, 2019.6 The approved scheduling order listed September 30, 2019, as the date by which all discovery was to be completed. There have been no requests to modify the scheduling order or to extend the dates for the completion of discovery.7 The court has before it the “Rock Climb Fairfield Release of Liability and Assumption of Risk” document and further additional information submitted by the parties to allow the court to move forward, including the transcript of the deposition [*11]  testimony of Nora Maklad and employee of RCF. There is no indication that the defendants have sought more information through the discovery process or that Licata has objected to, obstructed or delayed the discovery process. The court has a one hundred and twenty-day time limitation to issue its decision and the court will do so within that time limit with the information that is available, as a trial date assignment is pending.

III

Contractual Indemnification

Count One of the Rock Climb defendants’ third-party complaint against Licata alleges contractual indemnification. “Indemnity involves a claim for reimbursement in full from one who is claimed to be primarily liable.” Atkinson v. Berloni, 23 Conn.App. 325, 326, 580 A.2d 84 (1990). “A party may bring an indemnification claim based on the terms of an indemnity agreement . . . [A]llegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . . There is no requirement that a party seeking indemnification must assert allegations of exclusive control (or any of the other elements [*12]  of a claim for indemnification based on active-passive negligence) in order to state a legally sufficient claim for contractual indemnification.” (Citations omitted; internal quotation marks omitted.) Kinney v. Gilbane Building Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0276049 (September 21, 2004, Wiese, J.).

“As a general rule, contractual indemnification claims that are based on written agreements are construed in accordance with the principles of contract law.”
Lawrence v. Sodexho, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 06 5001264 (January 25, 2007, Owens, J.T.R.); 42 Conn. L. Rptr. 843, 2007 Conn. Super. LEXIS 245; see also PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 290, 838 A.2d 135 (2004). “The essential elements for a cause of action based on breach of contract are (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party, and (4) damages . . . [and] causation.” Greco Properties, LLC v. Popp, Superior Court, judicial district of Hartford, Docket No. CVH 7628, 2008 Conn. Super. LEXIS 414 (February 15, 2008, Bentivegna, J.), citing McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 503-04, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).

“[I]n order to form a contract, generally there must be a bargain in which there is a manifestation of mutual assent to the exchange between two or more parties . . . and the identities of [*13]  the contracting parties must be reasonably certain.” (Citations omitted.) Ubysz v. DiPietro, 185 Conn. 47, 51, 440 A.2d 830 (1981); BRJM, LLC v. Output Systems, Inc., 100 Conn.App. 143, 152, 917 A.2d 605, cert. denied, 282 Conn. 917, 925 A.2d 1099 (2007). “[A] party is entitled to indemnification, in the absence of a contract to indemnify, only upon proving that the party against whom indemnification is sought either dishonored a contractual provision or engaged in some tortious conduct.” Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 74, 579 A.2d 26 (1990). “[Allegations of contractual indemnification must be supported by the terms of the contract or the contract itself . . . Under Connecticut law, to state a contract-based indemnification claim, the claimant must allege either an express or implied contractual right to indemnification . . .”(Citation omitted; internal quotation marks omitted.) Fisher v. Countrywide Home Loans, Inc., Superior Court, judicial district of Litchfield, Docket No. CV-09-4008690-S, 2011 Conn. Super. LEXIS 32 (January 7, 2011, Roche, J.).

As noted, herein, the contract relied upon by the Rock Climb defendants is the “Rock Climb Fairfield Release of Liability and Assumption of Risk” document that has been submitted for the court’s review. It was admittedly signed by Kate Licata on October 3, 2016, the date of the alleged incident, wherein the minor child was injured. The document bears the name of the minor child [*14]  and her date of birth. It lists the e-mail address of Licata and Licata’s electronic signature.

Paragraph 1 of the document titled “activities and risks” lists indoor wall climbing and bouldering as activities. Risks include, among other things: falling from climbing surfaces; persons climbing out of control or beyond personal limits; over-exertion; inadequate physical conditioning; and the negligence of other persons, including other visitors. The document states that the risks described in the document “are inherent in RCF activities . . . and cannot be eliminated without jeopardizing the essential qualities of the activity.”

Paragraph 2, titled “Assumption of Risks” states:

I accept and assume all the risks of a visit to RCF activity sites, inherent or not and whether or not described above, If the visitor is a minor of whom I am parent or legal guardian, I have explained the risks to the minor visitor, who understands them and wishes to visit and participate in RCF activities in spite of the risks.

Paragraph 3 is titled “Release and Indemnity. That paragraph notes that the signor of the agreement is an adult visitor or parent of a minor visitor and that the signor releases and discharges [*15]  and agrees to indemnify the RCF defendants from all claims, suits, demands or causes of action, which are connected to the minor’s visit to and participation in, RCF activities. The agreement is intended to include claims arising out of losses suffered by the child and losses caused by the signor or the child. By signing the agreement, the signor agrees to indemnify and release claims of negligence of the RCF defendants.

Lastly, paragraph 5 of the Release notes that the signor acknowledges that if the minor visitor for whom the signor has signed their signature, is hurt and files a lawsuit, the signor will protect the released and indemnified RCF defendants from any claims of the minor visitor.

The Release bears a signature line and date line for the “parent or legal court appointed guardian. As stated, it is signed by Kate Licata and dated October 3, 2016. The document is not signed by the RCF defendants or any agent, servant or employee of the RCF defendants.

Licata, in moving for summary judgment, argues the “Release of Liability and Assumption of Risk” document is void as against public policy and unenforceable against her. Her argument relies upon the decisions in Hanks v. Powder Ridge Restaurant Corporation, 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, 280 Conn. 153, 905 A.2d 1156 (2006).

In Hanks [*16] , the plaintiff, a patron, brought his three children and another child to Powder Ridge to snow-tube. Neither the plaintiff or the children had ever snow-tubed at Powder Ridge, but the snow-tubing run was open to the public generally, regardless of prior snow-tubing experience, with the restriction that only persons at least six years old or forty-four inches tall were eligible to participate. In order to snow-tube at Powder Ridge, patrons were required to sign a “Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability.” The plaintiff read and signed the agreement on behalf of himself and the four children. While snow-tubing, the plaintiff’s right foot became caught between his snow-tube and the man-made bank of the snow-tubing run, resulting in serious injuries that required multiple surgeries to repair. Id., 316-17. The plaintiff alleged that the defendants negligently caused his injuries in several ways. Id. The defendants denied the plaintiff’s allegations of negligence and asserted two special defenses. “Specifically, the defendants alleged that the plaintiff’s injuries were caused by his own negligence and that the agreement relieved the defendants of liability, “even if the accident was due to the negligence of the defendants.” Id., 318-19.

In Hanks, our Supreme Court determined that even though the exculpatory agreement purporting to release the defendants from prospective liability for personal injuries sustained as a result of the operator’s negligent conduct was well drafted, it nonetheless violated public policy. In finding the agreement violated public policy, the Supreme Court reversed [*17]  the trial court’s granting of summary judgment for the defendants. Id., 321-26.

In Hanks, snowtubing was the recreational activity at issue. Our Supreme Court placed particular emphasis on: (1) the societal expectation that family oriented activities will be reasonably safe; (2) the illogic of relieving the party with greater expertise and information concerning the dangers associated with the activity from the burden of proper maintenance of the snowtubing run; and (3) the fact that the release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and offered to the plaintiff on a “take it or leave it” basis. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. at 331-34. The court recognized the clear public policy in favor of participation in athletics and recreational activities. Id., at 335.

In Reardon v. Windswept Farm, LLC, supra, 280 Conn. 153, the plaintiff was an experienced horseback rider, who was injured while riding one of the defendant’s horses. The plaintiff subsequently challenged the validity of a release document similar to the one in Hanks, and in this case, wherein the defendant sought to insulate itself from liability. Reardon found that the decision in Hanks was controlling in determining the validity of the release and indemnity agreement.

We conclude [*18]  that, based on our decision in Hanks, the totality of the circumstances surrounding the recreational activity of horseback riding and instruction that was offered by the defendants demonstrates that the enforcement of an exculpatory agreement in their favor from liability for ordinary negligence violates public policy and is not in the public interest. First, similar to the situation at issue in Hanks, the defendants in the present case provided the facilities, the instructors, and the equipment for their patrons to engage in a popular recreational activity, and the recreational facilities were open to the general public regardless of an individual’s ability level. Indeed, the defendants acknowledged that, although the release required riders to indicate their experience level, it also anticipated a range in skills from between “[n]ever ridden” to “[e]xperienced [r]ider,” and that the facility routinely had patrons of varying ability levels. Accordingly, there is a reasonable societal expectation that a recreational activity that is under the control of the provider and is open to all individuals, regardless of experience or ability level, will be reasonably safe.

Id., 161.

Additionally, in [*19]  the present case, as in Hanks, the plaintiff “lacked the knowledge, experience and authority to discern whether, much less ensure that, the defendants’ [facilities or equipment] were maintained in a reasonably safe condition. Specifically, although the plaintiff characterized herself as an experienced rider, she was in no greater position then the average rider to assess all the safety issues connected with the defendants’ enterprise. To the contrary, it was the defendants, not the plaintiff or the other customers, who had the “expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone [could] properly maintain and inspect their premises, and train their employees in risk management.” In particular, the defendants acknowledged that they were responsible for providing their patrons with safe horses, qualified instructors, as well as properly maintained working equipment and riding surfaces. In the context of carrying out these duties, the defendants were aware, and were in a position continually to gather more information, regarding any hidden dangers associated with the recreational activity including the [*20]  temperaments of the individual horses, the strengths of the various riding instructors, and the condition of the facility’s equipment and grounds. As we concluded in Hanks, it is illogical to relieve the defendants, as the party with greater expertise and information concerning the dangers associated with engaging in horseback riding at their facility, from potential claims of negligence surrounding an alleged failure to administer properly the activity.

(Internal citations and quotation marks omitted.) Id., 161-62.

Lastly, the Reardon court noted that the release that the plaintiff signed broadly indemnifying the defendants from liability for damages resulting from the defendants’ own negligence was a classic contract of adhesion of the type that this court found to be in violation of public policy in Hanks.

Specifically, we have noted that the most salient feature of adhesion contracts is that they are not subject to the normal bargaining processes of ordinary contracts, and that they tend to involve a standard form contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who has little choice about the terms. In the present case, signing the release [*21]  provided by the defendants was required as a condition of the plaintiff’s participation in the horseback riding lesson, there was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not participate in the activity. As in Hanks, therefore, the plaintiff had nearly zero bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the risk more effectively then the defendants.

(Internal citations and quotation marks omitted.) Id., 162-63.

It is also noted that the court in Reardon did not limit its decision to the sport of horseback riding or the activity of snowtubing which was the activity in Hanks. “The list of recreational activities that we identified in Hanks was meant to be illustrative, not exhaustive. [*22]  Indeed, it would be impossible for us to identify all of the recreational activities controlled by the Hanks decision.” Id., 165-66. The court finds that the factors considered in Hanks v. Powder Ridge Restaurant Corporation, supra, 276 Conn. 314 and Reardon v. Windswept Farm, LLC, supra, 280 Conn. 153 apply to the activities of bouldering and rock climbing which are present in the case before this court.8

In the present case, the defendant’s facility was open to the general public regardless of a patron’s experience level. The minor plaintiff was a ten-year-old female. The defendants have admitted that they provided instruction to the group of minors attending the birthday celebration at the defendants’ facility. Neither the minor plaintiff or Licata provided any of the equipment to be used. Licata, herself, did not provide training, guidance or supervision to the minors, including the minor plaintiff. Licata possessed no special knowledge regarding rock climbing or bouldering activities including training and safety procedures other than an initial orientation by RCF employees.9 Maklad testified at her deposition that the orientation lasted only five to ten minutes. The RCF defendants/third-party plaintiffs admit that there was zero expectation that Licata would “train and guide climbers” [*23]  or to inspect various facility equipment. RCF argues that they did expect that parents and guardians would supervise children. Thus, there is a question of fact as to whether or not Licata was adequately supervising the minor plaintiff Cannon when she fell. The court disagrees.

In this case, signing the release provided by RCF was required as a condition of the plaintiff’s participation in the bouldering and rock climbing activities at the RCF facility. There was no opportunity for negotiation by the plaintiff, and if she was unsatisfied with the terms of the release, her only option was to not to allow the minor guests who accompanied her to the birthday party to participate. Licata had no bargaining power with respect to the negotiation of the release and in order to participate in the activity, she was required to assume the risk of the defendants’ negligence. “This condition of participation violates the stated public policy of our tort system because the plaintiff was required to bear an additional risk despite her status as a patron who was not in a position to foresee or control the alleged negligent conduct that she was confronted with, or manage and spread the [*24]  risk more effectively then the defendants.” Reardon v. Windswept Farm, LLC, supra, 280 Conn. 162-63. The RCF release at issue was a standardized adhesion contract, lacking equal bargaining power between the parties, and offered to the plaintiff on a “take it or leave it” basis. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. at 331-34.10

The RCF parties additionally argue that it is improper to allow Licata to avail herself of arguments based on public policy when she in turn violated public policy by signing the Release and Indemnification Agreement when she was not the parent or legal guardian of the minor plaintiff, Cannon. They argue Licata violated societal expectations and norms in signing the document and now disclaiming responsibility. They declare that Licata is the wrongdoer and should not be allowed to walk away from this issue.

Licata in her reply to the RCF objection to summary judgment argues that the RCF defendants have cited no authority for their position that Licata’s signing of the release document on behalf of the minor, Emma Cannon constituted a violation of public policy; nor have they explained why such a violation would restrict Licata from challenging the validity of the waiver. Licata also questions why the RCF defendants would make this argument, given that the sole basis [*25]  for the contractual indemnification claim against Licata is her signing of the release document is which they now assert violated public policy. The court agrees. If the signing of the release was invalid, then it would stand to reason that the release itself is invalid. The RCF defendants, by their own reasoning would be attempting to enforce an agreement, which they themselves claim is invalid.

For the reasons set forth herein, the court grants Licata’s motion for summary judgment on Count One of the Rock Climb defendants’ third-party complaint against Licata alleging contractual indemnification.

IV Common-Law Indemnification

In Count Two of the cross claim, the RCF defendants allege common-law indemnification. Therefore, the court reviews our law concerning common-law indemnification, as set forth in Valente v. Securitas Sec. Services, USA, Inc., 152 Conn.App. 196, 203-04, 96 A.3d 1275 (2014). Citing, Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 412, 207 A.2d 732 (1965), the Appellate Court in Valente, supra, noted that “[g]enerally, there is no right to indemnification between joint tortfeasors.” Kaplan v. Merberg Wrecking Corp., supra, recognized an exception to this general rule. “Kaplan teaches that indemnification is available from a third party on whom a primary exposure of liability is claimed to rest. To hold a third party liable to indemnify one tortfeasor for damages awarded against [*26]  it to the plaintiff for negligently causing harm to the plaintiff, a defendant seeking indemnification must establish that: (1) the third party against whom indemnification is sought was negligent; (2) the third party’s active negligence, rather than the defendant’s own passive negligence, was the direct, immediate cause of the accident and the resulting harm; (3) the third party was in control of the situation to the exclusion of the defendant seeking reimbursement; and (4) the defendant did not know of the third party’s negligence, had no reason to anticipate it, and reasonably could rely on the third party not to be negligent.” (Citation omitted.) Valente v. Securitas Sec. Services, USA, Inc., supra, 152 Conn.App. 203-04. “Our Supreme Court has defined exclusive control of the situation, for the purpose of a common-law indemnification claim, as exclusive control over the dangerous condition that gives rise to the accident.” (Internal quotation marks omitted.) Id., citing, Pellecchia v. Connecticut Light & Power Co., 139 Conn.App. 767, 775, 57 A.3d 803 (2012) (dangerous condition held to be electric power line which electrocuted plaintiff), cert. denied, 308 Conn. 911, 61 A.3d 532 (2013).

The court has reviewed the objection to the motion for summary judgment filed by the RCF defendants and notes, as pointed out by Licata in her reply brief, that the RCF defendants have [*27]  not addressed Licata’s claim in her motion for summary judgment that she did not control the situation that prevailed at the RCF’s facility on the date of the minor’s injury; nor is it alleged in the cross claim that Licata controlled the situation. An essential element of common-law indemnification is that the third party, Licata, was in control of the situation to the exclusion of the third-party plaintiffs. Valente v. Securitas Sec. Services, USA, Inc., supra, 152 Conn.App. 203-04; Pellecchia v. Connecticut Light & Power Co., supra, 139 Conn.App. 775. The third-party plaintiffs, the RCF defendants, have produced little to no credible evidence; nor have they alleged or argued that Licata was in control of the situation to the exclusion. “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Citations omitted; internal quotation marks omitted.) Merchant v. State Ethics Commission, 53 Conn.App. 808, 818, 733 A.2d 287 (1999). These same principles apply to claims raised in the trial court. Connecticut Light and Power Co. v. Department of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).

For the foregoing reasons discussed, herein, Licata’s motion for summary judgment is granted as to Count Two alleging common-law indemnification.

ORDERS

Licata’s Motion for Summary Judgment is granted as to Count One, which alleges contractual indemnification and Count [*28]  Two, which alleges common-law indemnification.

THE COURT

Judge Richard E. Arnold,

Judge Trial Referee


Kuchta v. Opco, 2020 Nev. App. Unpub. LEXIS 549, 2020 WL 3868434

Kuchta v. Opco, 2020 Nev. App. Unpub. LEXIS 549, 2020 WL 3868434

Court of Appeals of Nevada

July 8, 2020, Filed

No. 76566-COA

Reporter

2020 Nev. App. Unpub. LEXIS 549 *; 2020 WL 3868434

Joseph Kuchta, an Individual, Appellant, vs. Sheltie Opco, LLC, A Nevada Limited Liability Company, d/b/a John Ascuaga’s Nugget, d/b/a Gilley’s Nightclub; and Wolfhound Holdings, Llc, A Delaware Limited Liability Company, Respondents.

Notice: NOT DESIGNATED FOR PUBLICATION. PLEASE CONSULT THE NEVADA RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS.

Judges:  [*1] Gibbons, C.J., Bulla, J. TAO, J., dissenting.

Opinion by: Gibbons

Opinion

ORDER OF REVERSAL AND REMAND

Joseph Kuchta appeals a district court order granting Sheltie Opco, LLC’s (Sheltie Opco) motion for summary judgment in a tort action. Second Judicial District Court, Washoe County; Scott N. Freeman, Judge.

While socializing with friends at Gilley’s Nightclub in Sparks, Nevada, a bar owned by respondent Sheltie Opco, Kuchta and his friends observed an employee riding a mechanical bull. As the employee was riding the bull, another employee used a joystick to control the bull’s movements. After the employee demonstrated how easy and non-challenging it was to engage safely in a slow ride, she stepped off the bull.

Sometime later that night, Kuchta and his friends were considering riding the bull. Kuchta’s group approached the same employee, who they had watched ride the bull earlier, and who was now operating the joystick and controlling the ride. Two different people within the group that Kuchta was part of conversed with the employee about riding the mechanical bull.

Viewing all factual allegations in a light most favorable to Kuchta, his friends told the employee that each person in their group wanted an easy [*2]  ride, which based on a difficulty scale of one to ten, they described as a two (with one meaning not moving at all), which the employee said she could provide. The friends indicated that everyone in the group was a novice and wanted a ride similar to the ride the employee had demonstrated. Furthermore, they told the employee that everyone should be able to step off the bull once the ride concluded, just as the employee had been able to do earlier that night after her ride. The employee agreed to provide the type of a ride Kuchta’s group requested. Thus, Kuchta’s and the employee’s understandings and expectations regarding Kuchta’s ride were that it would be easy, at a level two or at a low speed, and that Kuchta would be able to dismount after the ride was finished.

Before any person could ride the mechanical bull, however, Gilley’s required each patron to sign a previously prepared Assumption of Risk, Release, Indemnity, and Medical Treatment Authorization Agreement (Agreement), also known as a written waiver. The Agreement listed potential risks and possible injuries involved in riding the bull, including broken bones, and also released Sheltie Opco from any and all liability for [*3]  injuries or negligence that occur from all risks, both known and unknown. Kuchta signed the Agreement, although the record does not reveal when it was signed in relation to the conversations described above.

According to Kuchta, once on the bull, the ride was initially slow, as had been requested. However, after approximately 20 seconds, the operator significantly increased the speed and violence of the bull’s movements. Kuchta was thrown from the bull and suffered a fractured pelvis.

Kuchta sued Sheltie Opco alleging: negligence, negligence per se, negligent hiring and respondent superior, negligent supervision, negligent entrustment, and battery. Sheltie Opco moved for summary judgment on all claims, arguing there was no genuine issue of fact because Kuchta expressly assumed the risks of the ride and consented to the battery when he signed the Agreement before riding the bull. The district court granted Sheltie Opco’s motion for summary judgment finding that Kuchta expressly assumed the risks of riding the bull by signing the Agreement, including consenting to the touching that was the basis for his battery claim.

On appeal, Kuchta argues that the district court erred in granting summary [*4]  judgment because even though he signed the Agreement, under the doctrine of express assumption of risk, there are genuine issues of fact. He further contends that the district court erred in granting summary judgment to Sheltie Opco on his battery claim because battery is not covered by the Agreement. We agree that under the facts of this case, genuine issues of material fact remain as to Kuchta’s negligence and battery claims, and therefore, we reverse and remand.

Standard of review

We review a district court order granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper if the pleadings and all other evidence on file, viewed in the light most favorable to the non-moving party, demonstrate that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id. “A factual dispute is genuine when the evidence is such that a rational trier of fact could return a verdict for the nonmoving party.” Id. at 731, 121 P.3d at 1031.

The district court erred by granting summary judgment to Sheltie Opco on the negligence claims

Kuchta argues that he did not expressly assume the risk because the operator specifically agreed to provide the requested slow ride (i.e., an intensity [*5]  of two out of ten) and the operator instead ultimately conducted a wild ride exceeding his expectations. Sheltie Opco argues that the Agreement was a valid written waiver and that Kuchta understood the risks when he got on the bull. Specifically, he understood that the bull could “jerk[ ] and spin[ ] violently and unexpectedly” resulting in “broken bones.” And, as counsel for Sheltie Opco pointed out at oral argument, Kuchta could have declined to ride the bull if he had any concerns about the possibility of injury as fully explained in the Agreement. Moreover, no one forced Kuchta to sign the Agreement and ride the bull.

In Nevada, an exculpatory agreement is a “valid exercise of the freedom of contract.” Miller v. A&R Joint Venture, 97 Nev. 580, 582, 636 P.2d 277, 278 (1981). Though generally enforceable, exculpatory clauses in a contract must meet four standards before a party seeking to enforce the clause can be absolved of liability:

(1) Contracts providing for immunity for liability for negligence must be construed strictly since they are not favorite[s] of the law . . . (2) such contracts must spell out the intention of the party with the greatest particularity . . . and show the intent to release from liability beyond doubt by express stipulation [*6]  and no inference from the words of general import can establish it . . . (3) such contracts must be construed with every intendment against the party who seeks immunity from liability . . . (4) the burden to establish immunity from liability is upon the party who asserts such immunity . . . .

Agric. Aviation Eng’g Co. v. Bd. of Clark Cty. Comm’rs, 106 Nev. 396, 399-400, 794 P.2d 710, 712-13 (1990) (quoting Richard’s 5 & 10, Inc. v. Brooks Harvey Realty Inv’rs, 264 Pa. Super. 384, 399 A.2d 1103, 1105 (Pa. Super. Ct. 1979)).

Looking to the Agreement’s exculpatory clause, it warns that any ride participant will:

FULLY RELEASE FROM ALL LIABILITY ARISING FROM MY PARTICIPATION IN THE MECHANCIAL BULL RIDING PROGRAM the Nugget Hotel and Casino, Gilley’s, and their respective owners . . . . I AGREE NEVER TO SUE ANY RELEASEE . . . for any cause of action arising from my participation in the MECHANICAL BULL RIDING PROGRAM . . . . ALL PROVISIONS OF THIS AGREEMENT APPLY IRRESPECTIVE OF AND EVEN IN THE CASE OF [ ] NEGLIGENCE. . . .

Even when strictly construed, the language in the Agreement expressly states, with particularity, Sheltie Opco’s intent to release itself and others designated from any and all liability. The Agreement also specifically states that Sheltie Opco would be released from liability for any negligence on its part that may occur while a person rides the mechanical bull, Further, [*7]  the parties concede that Kuchta voluntarily signed the Agreement, which included the exculpatory clause.

However, our inquiry does not stop here as it pertains to the waiver‘s validity; we must determine whether Kuchta expressly assumed the risks contemplated by the waiver. Renaud v. 200 Convention Ctr. Ltd., 102 Nev. 500, 501,102 Nev. 500, 728 P.2d 445, 446 (1986) (analyzing an exculpatory waiver under the doctrine of express assumption of the risk).1 “Assumption of the risk is based on a theory of consent.” Id.

Next, reviewing the Agreement’s express waiver, it warns in relevant part:

There is a significant risk that I will be seriously injured as a result of my participating in the MECHANICAL BULL RIDING PROGRAM, including permanent paralysis, head injury, broken neck, other broken bones and death, whether or not I am thrown from or fall from the MECHANICAL BULL . . . . I KNOWINGLY AND FREELY ASSUME ALL RISKS ARISING FROM MY PARTICIPATION IN THE MECHANICAL BULL RIDING PROGRAM, including all risks to my life, health, safety and property, both known and unknown.

“Express assumption of risk[‘s] . . . vitality stems from a contractual undertaking that expressly relieves a putative defendant [*8]  from any duty of care to the injured party; such a party has consented to bear the consequences of a voluntary exposure to a known risk.” Mizushima v. Sunset Ranch, Inc., 103 Nev. 259, 262, 737 P.2d 1158, 1159 (1987), overruled on other grounds by Turner v. Mandalay Sports Entm’t, LLC, 124 Nev. 213, 180 P.3d 1172 (2008). Generally, “[a]ssumption of the risk is based on a theory of consent.” Renaud, 102 Nev. at 501, 728 P.2d at 446. For a party to assume the risk there are two requirements. “First, there must have been voluntary exposure to the danger. Second, there must have been actual knowledge of the risk assumed.” Id. Actual knowledge of the danger by the party alleged to have assumed the risk is the essence of the express assumption of risk doctrine. Id. To determine whether the party signing had actual knowledge of the risks assumed, courts must consider “[(1)] the nature and extent of the injuries, [(2)] the haste or lack thereof with which the release was obtained, and [(3)] the understandings and expectations of the parties at the time of signing.” Id. at 502, 728 P.2d at 446 (emphasis added).

Here, Kuchta’s injuries were severe, but were injuries a person would associate with being thrown from a bull. Furthermore, there is nothing in the record to suggest that Kuchta was rushed into signing the exculpatory agreement. However, the third factor weighs heavily in Kuchta’s favor. According [*9]  to Kuchta’s responses to Sheltie Opco’s interrogatories,2 the bull operator was told that they all wanted a slow ride, similar to the ride the operator had while demonstrating the use of the bull.3 Kuchta and former co-plaintiff Rebecca Bodnar both alleged in their responses to Sheltie Opco’s interrogatories that their rides on the bull started gently before the bull operator significantly increased the intensity, leading them to suffer injury. The bull ride operator, in an affidavit, states that she did not “operate the bull in a fashion that was intended to exceed Plaintiffs’ expectations of how intense the bull’s motions would be,” thereby suggesting that expectations had been set for Kuchta’s ride that may have been different than those described in the waiver.4

These conflicting allegations create a genuine dispute of material fact as to the expectations of the parties and as to whether the bull operator’s conduct failed to meet those expectations.5 Because Kuchta and Sheltie Opco each presented consistent and conflicting facts regarding [*10]  both parties’ expectations of the ride, and knowledge of the risks involved in a level two-of-ten or easy ride, a trier of fact should have resolved this issue.6 Thus, the district court erred by granting summary judgment in favor of Sheltie Opco as to Kuchta’s negligence claims.7

The district court erred by granting summary judgment in favor of Sheltie Opco on Kuchta’s battery claim

Kuchta argues that the district court erred in granting summary judgment in favor of Sheltie Opco on his battery claim because the Agreement did not contemplate gross negligence or intentional misconduct. Sheltie Opco contends that uncontroverted facts show that Kuchta consented to any conduct resulting from the bull ride, and thus, summary judgment was appropriate on his battery claim.

“A battery is an intentional and offensive touching of a person who has not consented to the touching . . . .” Humboldt Gen. Hosp. v. Sixth Judicial Dist. Court, 132 Nev. 544, 549, 376 P.3d 167, 171 (2016) (internal quotation marks omitted). “[G]eneral clauses exempting the defendant from all liability for negligence will not be construed to include intentional or reckless misconduct, or extreme and unusual kinds of negligence, unless such intention [*11]  clearly appears.” Restatement (Second) of Torts § 496B cmt. d (1965).

Here, Kuchta consented to a bull ride, but he claims he only consented to a mild ride, and therefore, any contact associated with a mild ride was allowed and could not be a battery. However, if the ride went beyond a mild ride, then there is a material question of fact as to the nature of the ride and to whether Kuchta consented to the resulting physical contact as the result of the unexpectedly rough ride. Further, Kuchta presented facts from two interrogatory responses that the bull rider intentionally increased the intensity of the bull machine, possibly attempting to throw him from the bull despite his understanding that the ride would be of mild intensity.8 Sheltie Opco provided an affidavit from the bull ride operator that stated that she did not intentionally increase the intensity of the bull ride beyond Kuchta’s expectations (which could also imply that she did in fact increase the intensity and understood his expectations). Viewing these assertions in a light most favorable to Kuchta, the nonmoving party, a rational trier of fact could find that the bull operator committed a battery by intentionally increasing the speed of the ride thereby deliberately [*12]  failing to meet the agreed upon expectations.9

Based on the parties’ conflicting factual assertions, it was inappropriate for the district court to grant summary judgment in favor of Sheltie Opco, as the trier of fact should resolve the conflict. Thus, the district court erred in granting summary judgment in favor of Sheltie Opco as to Kuchta’s battery claim. Accordingly, we

ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.10

/s/ Gibbons, C.J.

Gibbons

/s/ Bulla, J.

Bulla

Dissent by: TAO

Dissent

TAO, J., dissenting:

Although ostensibly arising from a personal injury suit, the only question at issue in this appeal is whether Kuchta’s tort claims were contractually waived, which presents a question of contract law. The majority reverses by concluding that a genuine issue of fact exists under NRCP 56. But this can only be true if the scope of the waiver contract isn’t limited to its express words, but rather depends upon Kuchta’s verbal testimony, proffered during a deposition many months after the fact, regarding his intentions — even though those supposed intentions are contained nowhere in the contractual words and actually [*13]  contradict those words. Respectfully, I dissent.

I.

Liability waivers must mean something in Nevada, even if they might be allowed to mean less in other states. What Nevada has always represented is the opportunity to try things that aren’t available anywhere else. One hundred fifty years ago, it was the chance to strike gold and silver ore in the desert. Then it became the chance to strike it rich on a roulette wheel or a slot machine. But more and more nowadays, it’s the chance to experience an adventure that you simply can’t have anywhere else. With an economy now driven largely by tourism, what Nevada offers are things that other states and cities do not. Gambling, of course. Concerts, shows, and world-class restaurants also. Convention space, surely. Quick marriages and no-fault divorces too. But, also, the chance, for some, to engage in derring-do — to fly a fighter plane in aerial combat; to ride a zipline over city streets and steep canyons; to engage in gun battles armed with simunition; to skydive 30,000 feet to the desert; to swim with dolphins in their habitat; to fire a real machine gun or ride in an armored tank; to bungee jump from a tower; to ride a roller-coaster suspended [*14]  500 feet in the air; to race luxury cars around a track at breakneck speed. One could argue that mining and gaming aren’t our real stock in trade, but rather novelty.

But with some novel experiences comes some level of danger. Jumping out of an airplane is an activity fraught with risk no matter how carefully the parachute was packed. There’s no way to entirely eliminate all of the risk from ziplines, bungee jumps, and rafting through whitewater rapids. If Nevada intends to remain the premier tourist destination in a fast-evolving and competitive world, then our law must permit some proprietors to operate businesses that are, at least at some level, inherently risky and dangerous. If we ever lose our reputation for remaining on the cutting edge, then there’ll be no more reason for millions of tourists to visit. And if that day ever comes, Nevada will no longer be what it always has been.

Liability waivers thus serve an important role in a state like ours: they allow proprietors to stay on the cutting edge by allowing them to operate with some level of risk, so long as they take the time to apprise their customers of those risks. Here, Kuchta signed a written liability waiver whose terms [*15]  unambiguously cover the precise injuries he suffered (broken bones) and the precise way he incurred them (being thrown) using the precise apparatus (a mechanical bull) that the waiver precisely addressed. The district court granted summary judgment, concluding that this waiver barred his tort claims.

Let’s briefly summarize the facts and the arguments that Kuchta makes in appealing from the district court’s order. I’ll return to analyze these arguments later in more detail, so for now just a synopsis will do. Viewing the facts in the light most favorable to Kuchta, he contends that he and his friends arrived at Gilley’s, watched a demonstration of the mechanical bull, and then spoke with the ride operator who verbally agreed to provide him with a ride that equated to a difficulty level of 2 out of 10. The majority describes Kuchta’s testimony as follows:

Viewing all factual allegations in a light most favorable to Kuchta, his friends told the employee that each person in their group wanted an easy ride, which based on a difficulty scale of one to ten, they described as a two (with one meaning not moving at all), which the employee said she could provide. The friends indicated that everyone [*16]  in the group was a novice and wanted a ride similar to the ride the employee had demonstrated. Furthermore, they told the employee that everyone should be able to step off the bull once the ride concluded, just as the employee had been able to do earlier that night after her ride. The employee agreed to provide the type of a ride Kuchta’s group requested. (Order, page 2).

Kuchta and his friends then ate dinner. After dinner, they decided to get a ride, and Kuchta signed a written waiver stating as follows:

I AM FULLY INFORMED OF ALL RISKS ARISING FROM MY PARTICIPATION IN THE MECHANICAL BULL RIDING PROGRAM, including the risks described in this paragraph. The mechanical bull jerks and spins violently and unexpectedly. There is a significant risk that I will be seriously injured . . . [i]ncluding permanent paralysis, head injury, broken neck, other broken bones, and death, whether or not I am thrown from or fall.

Note that, by signing this, Kuchta acknowledged that the mechanical bull “jerks and spins violently and unexpectedly” and that riding it created a “significant risk” of injury from being “thrown,” including “broken bones.” Note also that this isn’t a generic catch-all waiver that [*17]  purports to cover the entire panoply of any kind of negligence that could conceivably occur on the premises, such as wet floors, rotten food, or debris falling from the roof. Quite to the contrary, it’s a narrow waiver that specifically covers one thing and one thing only, the mechanical bull and nothing else. After signing the waiver and mounting the bull, Kuchta was thrown from the bull in the very way that the waiver warned might happen, suffering one of the very injuries (broken bones) that the waiver warned might result. The district court granted summary judgment, concluding that the waiver covered Kuchta’s injuries.

On appeal, Kuchta argues that the words of the written waiver do not mean what they seem to so plainly say, not because any words of the waiver actually agree with him, but rather because when the ride operator verbally agreed to provide a level 2 ride, he changed Kuchta’s understanding and expectations” regarding the meaning of the waiver. But as the cliche goes, apples are not oranges, and here the verbal conversation had nothing to do with the waiver. Note what’s omitted from even the majority’s summary of the verbal conversation: any mention of the waiver whatsoever. [*18]  Just because the ride operator verbally agreed to try to provide a level 2 ride does not mean that he legally changed the waiver so that it only covered a level 2 ride and nothing more. Indeed, the truth at the heart of this case is that nobody (not even Kuchta) contends that the verbal discussion between Kuchta and the ride operator constituted a negotiation of the waiver; everyone agrees that it was only a conversation about the kind of ride Kuchta wanted. What Kuchta requested was a particular kind of ride, not a particular kind of waiver.

Kuchta tries to bootstrap the conversation about the ride into the contract about the waiver by arguing that it’s &#