After this decision, I’m not sure you could prove assumption of the risk without a written document and a video or more.

Posted: April 22, 2024 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, Pennsylvania | Tags: assumption of the risk, Balance Beam, Challenge Couse, Corporate Team Building, Low Challenge Course, Team Building, Woodloch Pines Resort | 3 Comments

Plaintiff was part of a team-building group for her school/employer, she fell off the balance beam and sued for her injuries.

Hazen v. Woodloch Pines Resort, Civil Action 3:21-cv-00174 (M.D. Pa. Feb 16, 2024)

State: Pennsylvania, United States District Court, M.D. Pennsylvania

Plaintiff: Erin Hazen

Defendant: Woodloch Pines Resort d/b/a Woodloch Pines, et al

Plaintiff Claims:

Defendant Defenses: Assumption of the Risk

Holding: For the Plaintiff

Year: 2024

Summary

A middle school assistant principal fell off a low rope’s balance beam, 12″ high, into wood chips suffering injuries to her leg, ankle, and foot. However, under the interpretation of the defense of assumption of the risk by this court, she did not assume the risk of her injuries.

This has got to be appealed!

Facts

Woodloch Pines Resort (“Woodloch”) is an all-inclusive family resort located in Pike County, Pennsylvania. Since the 1990s, it has offered corporate team building activities on an outdoor low ropes challenge course. One of the elements of this challenge course was a “balance beam” or “teeter-totter” device made up of a fulcrum with a plank on top of it. The plank or “beam” is 10-feet long and 10%-inches wide. The fulcrum is 12-inches high and, when at its highest point, the end of the plank or beam is 3 feet above the surface below. The area below and around the balance beam device was covered with wooden mulch, presumably to, cushion the fall of any participants.

In June 2019, the plaintiff, Erin Hazen, was an assistant principal at KIPP TEAM Academy, a public charter school in Newark, New Jersey. She had been working there for about a year. On Saturday, June 22, 2019, Hazen and ten of her colleagues from the “leadership team” at KIPP TEAM Academy were on the third day of a leadership retreat at Woodloch. That morning, they participated in the outdoor challenge course activities as a team. After completing several other activities, they attempted the “balance beam” activity, where Hazen was injured.

The team was instructed by Eric Ranner, Woodloch’s corporate activities director, that the goal of the balance beam activity was to get the entire 11-person leadership team onto the plank without breaking either of two eggs that had been placed under each end of the plank. The parties dispute whether Ranner gave any additional verbal instructions or warnings to the participants. Ranner was the only Woodloch employee present at the time.

After two unsuccessful attempts to complete the activity, the team was able to get ten members on the plank at once during its third attempt. When the eleventh team member mounted the plank, it became unbalanced and Hazen fell off, along with other participants. At least one other participant landed on top of Hazen.

As a result of her fall, Hazen suffered a gruesome ankle injury, including left ankle dislocation, a displaced left ankle trimalleolar fracture with transverse medial malleolar fracture, a transverse distal one-third fibula shaft fracture, syndesmotic rupture, and a minimally displaced proximal fracture in the metaphysis. Her medical treatment included three surgeries and ongoing physical therapy. Due to her injuries, resultant physical limitations, and her course of treatment, Hazen was forced to resign from her job at KIPP TEAM Academy.

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

The only defense raised in this motion was Assumption of the Risk. Under Pennsylvania law assumption of the risk is defined as:

…assumption of the risk is established by showing that the injured party fully appreciated the nature of the risk it faced and voluntarily assumed it. In addition, the injured party must not have had a meaningful and reasonable alternative path to avoid the risk.

Pennsylvania has an additional requirement to prove assumption of the risk from the majority of other states. Most states require that the plaintiff understood and knowingly assumed the risk. In Pennsylvania, the defendant must also prove that the plaintiff had a reasonable alternative way to avoid the risk.

This court then went on to define the components of the assumption of the risk under Pennsylvania law.

Voluntary assumption of the risk involves a subjective awareness of the risk inherent in an activity and a willingness – to accept it. A plaintiff has voluntarily assumed the risk where he fully understands it and Voluntarily chooses to encounter it.

If the plaintiff assumes the risk, like many states, this removes from the defendant the duty to protect the plaintiff.

Under the doctrine of assumption of the risk, a defendant is relieved of its duty to protect a plaintiff where the plaintiff has voluntarily and deliberately proceeded to face a known arid obvious risk and therefore is considered to have assumed liability for his own injuries.”

The court then went on to define what a risk, or danger as this court defined it, is:

A danger is deemed “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.” For a danger to be “known,” it must “not only be known to exist, but. . . also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated.”

In all states, the trier of fact, the jury, must determine if the plaintiff assumed the risk. In some states, the court can make that decision in a motion if there is prior case law with similar facts or if the court determines that a jury would find for the defendant.

It is for that reason that Assumption of the Risk as a defense is second to use a release. A properly written release allows the defendant to motion for a summary judgment and the court, the trial judge can decide, there is no need to spend the money to go to trial.

Here the court went further to define the risk working hard to find a definition that would put an increased burden on the defendant, effectively removing the defense of assumption of the risk.

In defining assumption of risk most courts say the plaintiff must knowingly understand the risk. Here the court stated the plaintiff must not only understand the risk but also the “magnitude and its unreasonable character.”

Going deeper into this extensive black hole to support the plaintiff the court stated.

The defendant’s burden to establish assumption of the risk is a tall order, because assumption of the risk requires knowledge of a specific risk, “It is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks. Rather, the plaintiff must be aware of ‘the particular danger’ from which he is subsequently injured in order to voluntarily assume that risk as a matter of law.

The plaintiff under this ruling must not only know the risk, but the defendant must also prove the plaintiff knew of the particular danger that injured him or her.

The judge is requiring the plaintiff to have a crystal ball to understand every possible injury that could come from assuming the risk.

You are standing on a beam, elevated above the ground 12 inches on a beam that is 10″ wide with 11 other people, and not only must you know that you can fall off, but you must know that you will receive a severe leg, ankle, and foot injury.

Hazen suffered a gruesome ankle injury, including left ankle dislocation, a displaced left ankle trimalleolar fracture with transverse medial malleolar fracture, a transverse distal one-third fibula shaft fracture, syndesmotic rupture, and a minimally displaced proximal fracture in the metaphysis

You need to make a mental note when reading a case when the judge describes the injury as gruesome and then specifically identifies each injury the plaintiff suffered.

The court found the plaintiff understood and assumed that she could fall off the beam and suffer an injury. However, the court went on to say “But “awareness of a general risk does not amount to awareness of a specific risk.””

The judge continued on this track:

Awareness of the specific risk presented by the balance beam activity here includes not just an appreciation of the general possibility that she might fall, but also an appreciation of the likelihood of a fall and the potential for serious injury such as the complex multiple ankle fractures and other injuries that our plaintiff, in fact, suffered.

The next issue the court brought up was whether or not the plaintiff had a real choice to participate or not participate in any part of the team-building exercise.

Here, the parties dispute whether Hazen’s participation in the balance beam activity was voluntary. In her affidavit, Hazen has stated that she felt her participation in this team building activity was required rather than voluntary, noting that she had just finished her first year as an assistant principal at the charter school, she was required in that role to lead by example and thus participate fully in team-building activities, and the purpose of this particular activity was to get the entire team of eleven onto the plank at one time.

At what point in life can you not stop and say I don’t want to do this?

The court proceeded to dismiss the motion by the defendants.

Accordingly, based on the facts and evidence of record, viewed in the light most favorable to the non-moving plaintiff, we find that a reasonable jury could conclude that the plaintiff was not subjectively. aware of the specific risk of serious injury posed by her participation in the balance beam activity that resulted in her injuries, or that she did not voluntarily accept that risk.

So Now What?

I have no idea what a trimalleolar fracture is. Nor does Word or Grammarly recognize trimalleolar as a word. Yet, this court expected a middle school assistant principal to understand the word, and the risk associated with it.

Let alone the ability, as a leader in a school, or assistant principal, that she does not want to participate in an activity because of the risk. If you don’t learn that in middle school, where are you going to learn it?

Here the court went out of its way to find requirements for the defense to prove that were outlandish and impossible. The only way to win anything like this in Pennsylvania in the future is to have the participants sit down and watch a video describing all the possible ways to get hurt, record the participants watching the video, and then sign an agreement, assumption of the risk or release which says the know and understand the risks and the particular dangers of each risk and that the person signing watched the video.

This decision is a little shocking.

What do you think? Leave a comment.

Jim Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor

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Hazen v. Woodloch Pines Resort, Civil Action 3:21-cv-00174 (M.D. Pa. Feb 16, 2024)

Posted: April 22, 2024 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, Pennsylvania | Tags: Balance Beam, challenge course, Corporate Team Building, Low Challenge Course, Low Course, Ropes course, Team Building, Woodloch Pines Resort | Leave a comment

To Read an Analysis of this decision see: After this decision, I’m not sure you could prove assumption of the risk without a written document and a video or more.

ERIN HAZEN, Plaintiff,
v.
WOODLOCH PINES RESORT d/b/a WOODLOCH PINES, et al., Defendants.

Civil Action No. 3:21-cv-00174

United States District Court, M.D. Pennsylvania

February 16, 2024

MEMORANDUM

(SAPORITO, M. J.)

Woodloch Pines Resort (“Woodloch”) is an all-inclusive family resort located in Pike County, Pennsylvania. Since the 1990s, it has offered corporate team building activities on an outdoor low ropes challenge course. One of the elements of this challenge course was a “balance beam” or “teeter-totter” device made up of a fulcrum with a plank on top of it. The plank or “beam” is 10-feet long and 10%-inches wide. The fulcrum is 12%-inches high and, when at its highest point, the end of the plank or beam is 3%4eet above the surface below. The area below and around the balance beam device was covered with wooden mulch, presumably to, cushion the fall of any participants.

The team was instructed by Eric Ranner, Woodloch’s corporate activities director, that the goal of the balance beam activity was to get the entire 11-person leadership team onto the plank without breaking either of two eggs that had been placed under each end of the plank.^[1] The parties dispute whether Ranner gave any additional verbal instructions or warnings to the participants. Ranner was the only Woodloch employee present at the time.

After two unsuccessful attempts to complete the activity, the team was able to get ten members on the plank at once during its third attempt. When the eleventh team member mounted the plank, it became unbalanced and Hazen fell off, along with other participants.^[2] At least one other participant landed on top of Hazen.

Hazen brought this federal diversity action asserting state-law negligence claims against each of the defendants. The defendants have answered the complaint, and, following the completion of discovery, they have moved for summary judgment. In support of their motion for summary judgment, the defendants argue that Hazen is barred from all recovery by the doctrine of primary assumption of the risk.

Because this is a diversity action, we must apply Pennsylvania’s substantive law and federal procedural law. See Gasperini v. Cir. for Humans., Inc., 518 U.S. 415, 427 (1996). “Under Pennsylvania law, assumption of the risk is established by showing that the injured party fully appreciated the nature of the risk it faced and voluntarily assumed it. In addition, the injured party must not have had a meaningful and reasonable alternative path to avoid the risk.” Kirschbaum v WRGSB Assocs., 243 F.3d 145, 156-57 (3d Cir. 2001) (citation omitted); see also . Mucowski v Clark, 590 A.2d 348, 350 (Pa. Super. Ct. 1991) (“Voluntary assumption of the risk involves a subjective awareness of the risk inherent in an activity and a willingness – to accept it. A plaintiff has voluntarily assumed the risk where he fully understands it and Voluntarily chooses to encounter it.”) (citation omitted and emphasis added). “Under the doctrine of assumption of the risk, a defendant is relieved of its duty to protect a plaintiff where the plaintiff has voluntarily and deliberately proceeded to face a known arid obvious risk arid therefore is considered to have assumed liability for his own injuries.” Barrett v. FredavidBuilders, Inc., 685 A.2d 129,130 (Pa. Super. Ct. 1996); see also Carrender v. Fitterer, 469 A.2d 120, 125 (Pa. 1983) (holding that, when an invitee assumes the risk of injury from a dangerous condition, the landowner no longer owes the invitee a duty of care).

As the Carrender court explained:

A danger is deemed “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.” For a danger to be “known,” it must “not only be known to exist, but. . . also be recognized that it is dangerous and the probability arid gravity of the threatened harm must be appreciated.”

Carrender, 469 A.2d at 123-24 (quoting Restatement (Second) of Torts § 343Acmt. b (Am. L. Inst. 1965)) (citations omitted, ellipsis in original).

“Whether the plaintiff knows of the existence of the risk, or whether he understands and appreciates its magnitude and its unreasonable character, is a question of fact, usually to be determined by the jury under proper instructions from the court. The court may itself determine the issue only where reasonable men could not differ as to the conclusion.”. Staymates E ITT Holub Indus., 527 A.2d 140, 146 (Pa. Super. Ct. 1987) (quoting Restatement (Second) of Torts §496D cmt.e); see also Kaplan v. Exxon Corp., 126 F.3d 221, 225 (3d Cir. 1997); Mucowski,
_:590.A.2d at 350 (quoting Staymatesf Carrender, 469 A.2d at 124. As this court has previously explained:

Given that its application is a “drastic measure” barring a plaintiffs recovery, to grant summary judgment on assumption of the risk as a matter of law the court must-conclusively and beyond question- find that the plaintiff was subjectively aware of a specific risk, voluntarily accepted it and acted in spite of that risk, and suffered harm contemplated by that specific risk. The defendant’s burden to establish assumption of the risk is a tall order, because . assumption of the risk requires knowledge of a specific risk, “It is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks. Rather, the plaintiff must be aware of ‘the particular danger’ from which he is subsequently injured in order to voluntarily assume that risk as a matter of law.”

Smerdon v. GEICO Cas. Co., 342 F.Supp.3d 582, 587 (M.D. Pa. 2018) (quoting Bullman v Giuntoli, 761 A.2d 566, 569 (Pa. Super. Ct. 2000), _:and Barillari v. Ski Sha wnee, Inc., 986 F.Supp.2d 555, 562-63 (M.D. Pa. 2013)) (footnotes omitted).

Here, it is undisputed that Hazen was generally aware of the risk that she might fall from the balance beam during this activity. But “awareness of a general risk does not amount to awareness of a specific risk.” Smerdon, 342 F.Supp.3d at 588 (citing Barillari, 986 F.Supp.2d at 562-63). Awareness of the specific risk presented by the balance beam activity here includes not just an appreciation of the general possibility that she might fall, but also an appreciation of the likelihood of a fall and the potential for serious injury such as the complex multiple ankle fractures and other injuries that our plaintiff in fact suffered.^[4]
See Kirschbaum, 243 F.3d at 157 (finding evidence sufficient to permit a reasonable jury to conclude that office building tenant, who was aware of a broken handrail and that it would not aid him if he were to trip while on the stairs, lacked the necessary appreciation of the likelihood that he could fall and need to rely on the handrail); Rice v. Skytop Lodge Corp., No. 00-2243, 2002 WL 775484, at *3 (M.D. Pa. Apr. 23, 2002) (finding evidence Sufficient to permit a reasonable jury to conclude that a sledder, who was aware of general risks of sledding and who had observed the placement of a plastic fence at the bottom of the sledding hill, did not understand the specific risk of serious injury that might be caused by colliding with the fence); Mucowski, 590 A.2d at 350 (finding evidence sufficient to permit a reasonable jury to conclude that a senior engineering student, who was familiar with a pool and the depth of the water therein, was not subjectively aware of the specific risk that he could Strike his head on the bottom of the pool when diving into 4 feet of water from a railing around the pool). Hazen’s failure to fully appreciate the specific risk of serious injury posed by the balance beam activity is further underscored by the fact that, between herself and all ten of her leadership team colleagues that day, none believed the balance beam activity was so unsafe that they should decline to participate. See Smerdon, 342 F.Supp.3d at 589. “Under Carrender, this issue goes to the jury unless reasonable minds could not disagree.” Kaplan, 126 F.3d at 225.

In addition, We note that, “[a]mong the circumstances to consider in evaluating the voluntariness of the plaintiff’s action is whether the plaintiff had a real ‘choice.'” Kaplan, 126 F.3d at 226 (quoting Howell E Clyde, 620 A.2d 1107 (Pa. 1993) (plurality opinion)). Here, the parties dispute whether Hazen’s participation in the balance beam activity was voluntary. In her affidavit, Hazen has stated that she felt her participation in this team building activity was required rather than voluntary, noting that she had just finished her first year as an assistant principal at the charter school, she was required in that role to lead by example and thus participate fully in team-building activities, and the purpose of this particular activity was to get the entire team of eleven onto the plank at one time. Hazen Aff., Doc. 36’7.^[5] Thus, this element of the defendants’ assumption of the risk defense is also subject to a genuine dispute of material fact.

Accordingly, based on the facts and evidence of record, viewed in the light most favorable to the non-moving plaintiff, we find that a reasonable jury could conclude that the plaintiff was not subjectively . aware of the specific risk of serious injury posed by her participation in the balance beam activity that resulted in her injuries, or that she did not voluntarily accept that risk. Accordingly, the motion for summary judgment will be denied.

An appropriate order follows.

———

Notes:

^[1] In addition to multiple Woodloch corporate entities, Ranner is a named defendant in this action, along with Robert Filarsky, an assistant social director at Woodloch and Ranner’s supervisor that day.

^[2] The evidence suggests that some of the participants may have jumped off the plank, but it is undisputed that Hazen fell.

^[3] After a period of unemployment, Hazen is currently employed in a lower-paying position as a teacher at a different charter school in Morristown, New Jersey.

^[4] We note that, while Hazen could have visually observed the particular dimensions of the balance beam device and ascertained that it was made of wood, she had no experience performing this or similar activities in the past, and she had no knowledge of the device’s particular construction, including its weight capacity or the fact that the plank was not itself secured to the fulcrum.

^[5] In addition to deposition testimony by the parties themselves, deposition testimony by various nonparty witnesses, documentary and photographic evidence, arid expert witness reports, the plaintiff has relied on her owri testimonial affidavit, which is offered as a supplement to her deposition testimony and the other evidence. In their reply brief, the defendants have objected to consideration of this affidavit, arguing that it should be disregarded by the court under the “sham affidavit” doctrine. See generally Daubert E NRA Grp., LLC, 861 F.3d 382, 391 (3d Cir. 2017) (“When a nonmovant’s affidavit contradicts earlier deposition testiiriony without a satisfactory or plausible explanation, a district court -iriay disregard it at summary judgment in deciding if a genuine, material factual dispute exists. This is the sham-affidavit doctrine. In applying it we adhere to a ‘flexible approach,’ giving due regard to the ‘surrounding circumstances.”‘) (citations omitted); Perma Res. & Dev’p Co. v. Singer Co., 410 F.2d 572, 577-78 (2d Cir. 1969) (seminal case on the sham affidavit doctrine). But “the principle does not apply if the deposition and the later sworn statement are not actually contradictory.” Palazzo ex rel. Deimage v. Corio, 232 F.3d 38, 43 (2d Cir. 2000). “To be covered by the sham affidavit doctrine, the affidavit testimony must actually contradict previous deposition testimony, not merely differ from it or be in tension With it.” Ramirez v. Lora, No. 18-11230, 2022 WL 1539176, at *8 (D.N.J. May 16, 2022). Here, the defendants have characterized the plaintiff’s affidavit as “self-serving and boot strapping” and “incredulous,” but they have failed to identify any contradictory testimony whatsoever. See Defs.’ Reply Br. 5-8, Doc. 37. Thus, we decline to disregard the Hazen affidavit as evidence on summary judgment.

———

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Idaho Supreme Court blows the Idaho Skier Safety Act up.

Posted: January 15, 2024 | Author: Recreation Law | Filed under: Assumption of the Risk, Idaho, Ski Area, Skiing / Snow Boarding | Tags: Idaho Responsibilities and Liabilities of Skiers and Ski Area Operators Act, Idaho Ski Area Liability Act, Idaho Supreme Court, Responsibilities and Liabilities of Skiers and Ski Area Operators Act, Ski Area Liability Act, Sun Valley, Sun Valley ski resort | 3 Comments

Ski Area Liability Act now becomes a road map for plaintiffs to sue ski areas

Milus v. Sun Valley Co., 49693-2022 (Idaho Dec 19, 2023)

State: Idaho; Supreme Court of Idaho

Plaintiff: Laura Milus, in her individual capacity and as Guardian of the Minor Child Plaintiff, D.L.J., Plaintiff-Appellant

Defendant: Sun Valley Company, a Wyoming corporation

Plaintiff Claims: 1. Whether the district court erred in holding that the yellow padding on Snow Gun 16 constituted a warning implement.

2. Whether the district court erred in holding that Sun Valley had no duty to provide a conspicuous notice at the top of Lower River Run because no snow was being actively discharged from the snowmaking equipment.

3. Whether Mr. Milus assumed the risk of his ski accident under Idaho Code section 6-1106.

4. Whether Sun Valley is entitled to attorney fees on appeal.

Defendant Defenses: Responsibilities and Liabilities of Skiers and Ski Area Operators Act, (“Ski Area Liability Act“). See I.C. §§ 6-1101 through 6-1109

Holding: for the Plaintiff

Year: 2023

Summary

The Idaho Supreme Court just turned the Ski Area Liability Act into a plaintiff checklist for winning money from Idaho Resorts.

Facts

On November 30, 2019, Stewart Milus (“Mr. Milus”) was skiing at the Sun Valley Ski Resort when he collided with snowmaking equipment identified as Snow Gun 16, located in the middle of the Lower River Run on Bald Mountain. Mr. Milus died as a result of the collision. Snow Gun 16 was not actively discharging snow at the time of the collision.

Laura Milus (“Ms. Milus”) is the widow of Mr. Milus and D.L.J. is the stepson of Mr. Milus. Ms. Milus filed a wrongful death action on behalf of herself and D.L.J. (collectively referred to as “Milus”) against Sun Valley Company (“Sun Valley”), the operator of the Sun Valley Ski Resort. Milus alleged that Sun Valley breached its duties under Idaho Code section 6-1103(2) and (6). Idaho Code section 6-1103(2) imposes a duty on ski operators to mark with a “visible sign” or “warning implement” the location of snowmaking equipment on ski slopes and trails. Idaho Code section 6-1103(6) imposes a duty to place a conspicuous notice at or near the top of a trail or slope that is open to the public when snowgrooming or snowmaking operations are being undertaken.

Sun Valley filed a motion for summary judgment, arguing that it had satisfied its duty to warn of the snowmaking equipment under Idaho Code section 6-1103(2) because Snow Gun 16 was covered in yellow padding, which constituted a “warning implement.” Additionally, Sun Valley argued that it had no duty under Idaho Code section 6-1103(6) to place a notice at the top of the Lower River Run because no snowmaking was being actively undertaken on the day of the collision. Sun Valley further argued that, even if it did have such a duty, it complied with that duty by placing a sign that read “CAUTION SNOWMAKING IN PROGRESS” near what Sun Valley contends is the unloading area of the Lower River Run ski lift. Lastly, Sun Valley argued that, under Idaho Code section 6-1106, Mr. Milus had assumed the risk of injury while skiing.

The district court granted Sun Valley’s motion for summary judgment in part, holding that the yellow padding on Snow Gun 16 satisfied the duty under section 6-1103(2) to mark snowmaking equipment with a “warning implement.” The district court interpreted section 61103(6) as creating a duty only when snowmaking equipment is actively discharging snow and allowed discovery to take place regarding whether snow was being made on the day of the accident. Following discovery, the district court granted Sun Valley’s renewed motion for summary judgment in full regarding section 6-1103(6), holding that Sun Valley had no duty to place a notice at or near the top of the ski run because no active snowmaking was being undertaken when the accident occurred. The district court held that Milus was unable to establish that Sun Valley breached a duty owed to Mr. Milus and therefore Milus’s claim failed. Having resolved the motion on other grounds, the district court did not rule on Sun Valley’s assumption of risk defense.

Milus timely appealed the final judgment.

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

The Idaho Supreme Court took a very different approach to examining the Ski Area Liability Act. They said the statute creates a list of things a ski resort must do and if they fail to do them they are liable. They also stated that although the Ski Area Liability Act says a skier assumes the risk of skiing, that must mean a jury must examine the risks to see if the risk was assumed. Finally, the court looked at a prior decision and because it was not unanimous it was not valid anymore.

Let’s start with the change in how a prior decision is held by later courts.

Because the majority opinion in Northcutt is only a plurality holding on this issue, it is not binding precedent on this Court.

Stare Decisis —a Latin term that means “let the decision stand” or “to stand by things decided”—is a foundational concept in the American legal system. To put it simply, stare decisis holds that courts and judges should honor “precedent”—or the decisions, rulings, and opinions from prior cases. Respect for precedents gives the law consistency and makes interpretations of the law more predictable—and less seemingly random.

Stare Decisis is accepted and upheld by all courts across the United States, except for the Idaho Supreme Court. Nowhere have I read a decision that states that since the prior decision was less than unanimous it did not count. I would suspect that 90% of the decisions of any court are unanimous.

Stare decisis is the doctrine that courts will adhere to precedent in making their decisions. Stare decisis means “to stand by things decided” in Latin.

When a court faces a legal argument, if a previous court has ruled on the same or a closely related issue, then the court will make their decision in alignment with the previous court’s decision. The previous deciding-court must have binding authority over the court; otherwise, the previous decision is merely persuasive authority. In Kimble v. Marvel Enterprises, the U.S. Supreme Court described the rationale behind stare decisis as “promot[ing] the evenhanded, predictable, and consistent development of legal principles, foster[ing] reliance on judicial decisions, and contribut[ing] to the actual and perceived integrity of the judicial process.”

The doctrine operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent. For example, if the Seventh Circuit Court of Appeals adhered to the ruling of a previous Seventh Circuit Court of Appeals case, that would be horizontal stare decisis. A court engages in vertical stare decisis when it applies precedent from a higher court. For example, if the Seventh Circuit Court of Appeals adhered to a previous ruling from the U.S. Supreme Court, that would be vertical stare decisis. Or, additionally, if the Federal District Court for the Southern District of New York adhered to a previous ruling by the Second Circuit, that would be vertical stare decisis.

Although courts seldom overrule precedent, the U.S. Supreme Court in Seminole Tribe of Florida v. Florida explained that stare decisis is not an “inexorable command.” When prior decisions are “unworkable or are badly reasoned,” then the Supreme Court may not follow precedent, and this is “particularly true in constitutional cases.” For example, in deciding Brown v. Board of Education, the U.S. Supreme Court explicitly renounced Plessy v. Ferguson, thereby refusing to apply the doctrine of stare decisis.

This change by the Idaho Supreme Court is without precedence and will mean that there is no decision from a multi-panel court you can rely on unless that decision is unanimous. This will create havoc in the law in Idaho.

The next issue the court addressed is how sections of the Ski Area Liability Act are to be applied

See I.C. § 6-1103(10) (emphasis added). Rather, a close examination of the language demonstrates that the duties set forth in subsections (1) through (9) and the first clause in subsection (10) are the only duties imposed on operators in section 6-1103, and that ski operators owe no additional duty to eliminate, alter, control, or lessen the risks inherent in skiing. The last clause in subsection (10) simply explains that, to the extent a ski operator undertakes an additional duty (which they are not obligated to), there is no standard of care applicable to the additional duty.

Every other court has interpreted this statute to mean the ski area operator owes no duty to the skier. So, the Idaho Supreme Court interpreted the statute so that it creates a duty.

The plain language of section 6-1103(10) differentiates between the duties enumerated in subsections (1) through (9) and any additional duty to “eliminate, alter, control[,] or lessen such risks[.]” It only eliminates a standard of care for any additional duty not set forth in subsections (1) through (9), which the ski operator voluntarily undertakes. Therefore, we hold that ski area operators are held to a standard of care when acting to fulfill the duties enumerated in section 61103(1) through (9). [emphasize added]

So, what was a safe harbor for ski areas, is now a list of ways they can be sued and stated as such by the court.

The question now becomes what standard of care ski area operators are held to when acting to fulfill their enumerated duties under section 6-1103(1) through (9). “The second element of a negligence cause of action, that of breach of duty by the allegedly negligent party, requires measuring the party’s conduct against that of an ordinarily prudent person acting under all the circumstances and conditions then existing. What circumstances and conditions existed is a factual question to be determined by the trier of fact.” superseded by statute on other grounds as recognized in Therefore, we hold that ski area operators are held to the standard of an “ordinarily prudent person acting under all the circumstances and conditions then existing,” id., when complying with the duties enumerated in subsections (1) through (9). [emphasize added]

From protection to the standard of care of an ordinarily prudent person.

Next, the court looked at the statute affecting snow-making equipment and the definition of snow-making warning: warning implement. I.C. § 6-1103(2). In this case, Sun Valley had placed yellow padding around the snow-making equipment. As defined by the statute the lower court held that yellow padding was a warning implement. The Supreme Court did not see it that way and held that whether or not yellow padding constituted a warning implement is a question for the jury.

We hold that the district court erred because the question of whether the yellow padding around Snow Gun 16 constitutes a warning implement is a question of fact for the jury.

Now based on a broad definition in the statute, warning implement, every case must go to trial so the jury can decide what is a warning implement. This means the cost of insurance for ski areas is going to skyrocket because there is no way to win without a trial. That means larger settlements.

The next two issues were whether Sun Valley placed a warning notice concerning the snow-making equipment where a skier could see it. The court first held that the statute required a warning whether snow-making was going or not.

Then the court looked at whether or not Sun Valley had placed a warning and found it had not. Sun Valley supplied affidavits, pictures, and statements showing that the warning was there. The plaintiff supplied an affidavit stating there was no sign. The court went with the plaintiff.

As screwy as the prior decisions of the court have been, this one is over the top.

Sun Valley argues that, under the plain language of Idaho Code section 6-1106, Mr. Milus expressly assumed the risk and legal responsibility of an injury that occurred from his participation in the sport of skiing at Sun Valley Ski Resort, including any injury caused by snowmaking equipment. In response, Milus argues that the issue is not appropriately before this Court because it was not sufficiently addressed by the district court. Because the district court determined that Sun Valley had no duty or had fulfilled its duties under section 6-1103(2) and (6), the district court did not rule on the applicability of Idaho Code section 6-1106.

The court took the assumption of the risk defense off the table and stated a skier, skiing in Idaho only assumes the risk IF the ski area has met all of its requirements under the act.

For the reasons discussed previously in this opinion, there is a genuine issue of material fact concerning whether the snowmaking equipment was plainly visible or plainly marked in accordance with section 6-1103(2). Because the defense is only available if the equipment was marked in accordance with section 6-1103(2), a jury will have to determine whether the snowmaking equipment met the requirements of that section before Sun Valley may avail itself of this defense. Therefore, Sun Valley is not entitled to summary judgment under section 6-1106.

Again, every ski injury lawsuit is not going to trial. Only the trier of fact, the jury in most cases can determine if a skier assumed the risk causing his injuries.

So Now What?

Either the Idaho legislature has to re-write the Ski Area Liability Act or Idaho ski areas are going to pay. Once moderately priced lift tickets in Idaho are going to climb to cover the increased cost of signage and insurance.

Look for signs, permanent signs, at the tops of all lists and runs stating that skiers might encounter snow-making on a run. Look for larger warning signs and notices around all snow-making equipment, wherever it may be located. Sitting in the maintenance yard I would still pad it now.

Even more interesting, there are five justices on the Idaho Supreme Court and only four justices agreed with this decision. Does that mean it is non-binding?

Chief Justice BEVAN, and Justices BRODY, STEGNER, and MOELLER CONCUR.

What a mess.

G-YQ06K3L262

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

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Milus v. Sun Valley Co., 49693-2022 (Idaho Dec 19, 2023)

Posted: January 15, 2024 | Author: Recreation Law | Filed under: Assumption of the Risk, Idaho, Ski Area, Skiing / Snow Boarding | Tags: Idaho, Idaho Ski Safety Act, Idaho Supreme Court, Sun Valley, Sun Valley ski resort, Supreme Court | Leave a comment

LAURA MILUS, in her individual capacity and as Guardian of the Minor Child Plaintiff, D.L.J., Plaintiff-Appellant,
v.
SUN VALLEY COMPANY, a Wyoming corporation, Defendant-Respondent.

No. 49693-2022

Supreme Court of Idaho, Boise

December 19, 2023

Appeal from the District Court of the Fifth Judicial District of the State of Idaho, Blaine County. Ned C. Williamson, District Judge.

The decision of the district court is reversed.

Rossman Law Group, PLLC, Boise, for Appellant.

Mathew G. Gunn argued.

Lake City Law Group PLLC, Coeur d’Alene, for Respondent.

Katharine B. Brereton argued.

ZAHN, JUSTICE

This case concerns the interpretation of the Responsibilities and Liabilities of Skiers and Ski Area Operators Act. Appellant Laura Milus brought a wrongful death action on behalf of herself and her minor child against Respondent Sun Valley Company after her husband’s death following his collision with snowmaking equipment while skiing at Sun Valley Ski Resort.

Milus alleged that Sun Valley Company had breached a duty arising under Idaho Code section 6-1103(2) and (6). The district court granted Sun Valley’s summary judgment motion, holding that Sun Valley (1) fulfilled its duty under Idaho Code section 6-1103(2) to mark snowmaking equipment by surrounding the snowmaking equipment with yellow padding, and (2) did not have a duty under Idaho Code section 6-1103(6) to place a conspicuous notice at the top of the ski trail because the snowmaking equipment was not actively discharging snow. We reverse the district court’s grant of summary judgment and remand for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Milus timely appealed the final judgment.

II. ISSUES ON APPEAL

1. Whether the district court erred in holding that the yellow padding on Snow Gun 16 constituted a warning implement.

3. Whether Mr. Milus assumed the risk of his ski accident under Idaho Code section 6-1106.

4. Whether Sun Valley is entitled to attorney fees on appeal.

III. STANDARD OF REVIEW

“The standard of review on appeal from an order granting summary judgment is the same standard that is used by the district court in ruling on the summary judgment motion.” Berglund v. Dix, 170 Idaho 378, 384, 511 P.3d 260, 266 (2022) (quoting Hoke v. Neyada, Inc., 161 Idaho 450, 453, 387 P.3d 118, 121 (2016)). The trial court “must grant summary judgment 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.” I.R.C.P. 56(a). “All disputed facts are to be construed liberally in favor of the non-moving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the non-moving party.” Manning v. Micron Tech., Inc., 170 Idaho 8, 12, 506 P.3d 244, 248 (2022). “A mere scintilla of evidence or only slight doubt as to the facts is not sufficient to create a genuine issue of material fact for the purposes of summary judgment.” Finholt v. Cresto, 143 Idaho 894, 897, 155 P.3d 695, 698 (2007) (quoting Jenkins v. Boise Cascade Corp., 141 Idaho 233, 238, 108 P.3d 380, 385 (2005)). “If the evidence reveals no disputed issues of material fact, then only a question of law remains, over which this Court exercises free review.” Arambarri v. Armstrong, 152 Idaho 734, 738, 274 P.3d 1249, 1253 (2012).

IV. ANALYSIS

A. Ski area operators are held to an ordinarily prudent person standard of care when undertaking the duties enumerated in Idaho Code section 6-1103(1) through (9).

Before addressing the district court’s order dismissing Milus’s claim, we must first discuss the duties in tort and the corresponding standards of care encompassed by Milus’s claim. Milus’s negligence claim is premised on duties arising under the Responsibilities and Liabilities of Skiers and Ski Area Operators Act (“Ski Area Liability Act”). See I.C. §§ 6-1101 through 6-1109.

Idaho Code section 6-1103 is titled, “Duties of ski area operators with respect to ski areas,” and contains ten subsections. Subsections (1) through (9) each state a specific duty that a ski area operator has with respect to its operation of the ski area. Subsection (10) differs from the first nine because, after stating a duty, it then describes exceptions to that duty:

Every ski area operator shall have the following duties with respect to their operation of a skiing area:

….

(10) Not to intentionally or negligently cause injury to any person; provided, that except for the duties of the operator set forth in subsections (1) through (9) of this section and in section 6-1104, Idaho Code, the operator shall have no duty to eliminate, alter, control or lessen the risks inherent in the sport of skiing, which risks include, but are not limited to, those described in section 6-1106, Idaho Code; and, that no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen such risks shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.

I.C. § 6-1103(10).

This Court interpreted section 6-1103(10) in Northcutt v. Sun Valley Company, 117 Idaho 351, 787 P.2d 1159 (1990). We held that the Ski Area Liability Act limits the liability of ski operators to only the enumerated duties in section 6-1103(1) through (9) when acting to eliminate, alter, control or lessen the inherent risks of skiing. See id. at 354-55, 787 P.2d at 1162-63. Significantly, we also held that the Act eliminates any standard of care for a ski operator when undertaking any of the duties found in subsections (1) through (9). See id. (“We construe the last clause of this portion of [Idaho Code section] 6-1103(10) to eliminate any standard of care for a ski area operator in carrying out any of the duties described in [Idaho Code sections] 6-1103 and 6-1104.”). In other words, even though ski operators owe a duty to perform certain tasks, there is no standard of care applicable to how they perform those tasks.

Sun Valley argues that, under this Court’s holding in Northcutt, if a ski area operator takes any step to fulfill the duties enumerated under Idaho Code section 6-1103(1) through (9), any potential plaintiffs are barred from recovery. Milus argues that this Court’s interpretation in Northcutt makes it nearly impossible to hold a ski area operator liable, in contradiction with the legislature’s intent to “define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury ….” I.C. § 6-1101. We agree with Milus and hold that the ordinarily prudent person standard applies to the duties set forth in Idaho Code section 6-1103(1) through (9).

A careful reading of Northcutt reveals that the standard of care portion of the decision failed to draw a majority of votes and therefore is only a plurality holding. Justice Bakes’s special concurrence in Part II of the Northcutt opinion explains his disagreement with the plurality’s holding eliminating any standard of care for the duties enumerated in subsections (1) through (9):

Had appellant Northcutt’s injury been proximately caused by an inaccurate description of the relative degree of difficulty of the slope, or had the sign not been sufficiently “conspicuous” so that it could not reasonably have been observed, and as a result Northcutt descended a slope which exceeded his ability to negotiate, then in my view there would have been a violation of the duty provided in [section] 61103(3) for which liability would be imposed under [Idaho Code section] 6-1107, and which would not have been excused by [Idaho Code section] 6-1103(10).

117 Idaho at 358, 787 P.2d at 1166 (Bakes, J., specially concurring) (emphasis added). Because the majority opinion in Northcutt is only a plurality holding on this issue, it is not binding precedent on this Court.

A close reading of the separate clauses contained in section 6-1103(10) demonstrates that it does not eliminate any standard of care for the duties set forth in subsections (1) through (9):

Every ski area operator shall have the following duties with respect to their operation of a skiing area:

….

(10) Not to intentionally or negligently cause injury to any person;

• provided, that except for the duties of the operator set forth in subsections (1) through (9) of this section and in section 6-1104, Idaho Code,

• the operator shall have no duty to eliminate, alter, control or lessen the risks inherent in the sport of skiing, which risks include, but are not limited to, those described in section 6-1106, Idaho Code; and,

• that no activities undertaken by the operator in an attempt to eliminate, alter, control or lessen such risks shall be deemed to impose on the operator any duty to accomplish such activities to any standard of care.

See I.C. § 6-1103(10) (emphasis added). Rather, a close examination of the language demonstrates that the duties set forth in subsections (1) through (9) and the first clause in subsection (10) are the only duties imposed on operators in section 6-1103, and that ski operators owe no additional duty to eliminate, alter, control, or lessen the risks inherent in skiing. The last clause in subsection (10) simply explains that, to the extent a ski operator undertakes an additional duty (which they are not obligated to), there is no standard of care applicable to the additional duty.

The plain language of section 6-1103(10) differentiates between the duties enumerated in subsections (1) through (9) and any additional duty to “eliminate, alter, control[,] or lessen such risks[.]” It only eliminates a standard of care for any additional duty not set forth in subsections (1) through (9), which the ski operator voluntarily undertakes. Therefore, we hold that ski area operators are held to a standard of care when acting to fulfill the duties enumerated in section 61103(1) through (9).

The question now becomes what standard of care ski area operators are held to when acting to fulfill their enumerated duties under section 6-1103(1) through (9). “The second element of a negligence cause of action, that of breach of duty by the allegedly negligent party, requires measuring the party’s conduct against that of an ordinarily prudent person acting under all the circumstances and conditions then existing. What circumstances and conditions existed is a factual question to be determined by the trier of fact.” Brooks v. Logan, 127 Idaho 484, 490-91, 903 P.2d 73, 79-80 (1995) (citations omitted), superseded by statute on other grounds as recognized in Stoddart v. Pocatello Sch. Dist. #25, 149 Idaho 679, 239 P.3d 784 (2010). Therefore, we hold that ski area operators are held to the standard of an “ordinarily prudent person acting under all the circumstances and conditions then existing,” id., when complying with the duties enumerated in subsections (1) through (9).

B. Whether the yellow padding surrounding Snow Gun 16 constitutes a “warning implement” under Idaho Code section 6-1103(2) is a question of fact for the jury.

Having determined the applicable standard of care, we turn to the merits of Milus’s appeal. Milus filed a wrongful death action alleging Sun Valley breached its duty arising under Idaho Code section 6-1103(2). That section requires that ski area operators mark snowmaking equipment located on ski slopes and trails with a visible sign or warning implement. I.C. § 6-1103(2).

Sun Valley concedes that it did not mark Snow Gun 16 with a visible sign. Sun Valley argues that the yellow padding that surrounded Snow Gun 16 constitutes a warning implement under Idaho Code section 6-1103(2) Milus argued that whether the yellow padding constituted a warning implement was a question for the jury. The district court held that interpreting the phrase “warning implement” and whether it included the yellow padding was a question of statutory interpretation for the court and concluded that the yellow padding around Snow Gun 16 met the statutory requirement. We hold that the district court erred because the question of whether the yellow padding around Snow Gun 16 constitutes a warning implement is a question of fact for the jury.

The elements of a negligence action are “(1) a duty, recognized by law, requiring the defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual loss or damage.” Black Canyon Racquetball Club, Inc. v. Idaho First Nat’l Bank, N.A., 119 Idaho 171, 175-76, 804 P.2d 900, 904-05 (1991). The district court treated the question of whether the yellow padding constitutes a warning implement as an issue of duty. “The existence of a duty is a question of law for this Court.” Harrigfeld v. Hancock, 140 Idaho 134, 138, 90 P.3d 884, 888 (2004); see Udy v. Custer County, 136 Idaho 386, 389, 34 P.3d 1069, 1072 (2001).

However, whether the yellow padding effectively constitutes a “warning implement” is not an issue of duty, but rather one of breach. By enacting section 6-1103(2), the legislature imposed on Sun Valley a duty “[t]o mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snowmaking operations ….” In light of our holding that ski area operators are held to an “ordinarily prudent person” standard of care when performing the duties enumerated in subsections (1) through (9), it is a question of fact for the jury whether the yellow padding met the ordinarily prudent person standard of care to mark the gun with a visible sign or other warning implement. In this instance, breach is a question of fact for the jury. See Stephens v. Stearns, 106 Idaho 249, 256, 678 P.2d 41, 48 (1984) (holding that “it is a jury question as to whether [a] duty was breached”); Freeman v. Juker, 119 Idaho 555, 557, 808 P.2d 1300, 1302 (1991) (reversing the district court’s grant of summary judgment because whether the highway district had breached its duty by not maintaining the runaway escape ramp was a disputed question of fact); Thomson v. Idaho Ins. Agency, Inc., 126 Idaho 527, 530, 887 P.2d 1034, 1037 (1994) (concluding that summary judgment should have been denied solely because triable disputed factual issues existed whether a duty was breached).

“[I]f the evidence reveals no disputed issues of material fact, the trial court should grant the motion for summary judgment.” Duncan v. Long, 167 Idaho 853, 856, 477 P.3d 907, 910 (2020). Sun Valley put forth an Incident Report describing the accident and an Incident Photo Log with pictures of the yellow padding on Snow Gun 16 as evidence that the yellow padding constituted a warning implement. Milus presented a declaration by a ski area safety expert that snowmaking equipment should not be placed in the middle of a beginner level trail such as Lower River Run. There is a genuine issue of material fact whether Sun Valley breached its duty under section 6-1103(2) by wrapping Snow Gun 16 with yellow padding, and this question should go to a jury. Therefore, the district court’s grant of summary judgment is reversed.

C. Idaho Code section 6-1103(6) imposes a duty on ski area operators to place a conspicuous notice at or near the top of the trail or slope when snowmaking equipment is placed on the ski run or slope.

Milus claims Sun Valley also breached its duty under Idaho Code section 6-1103(6), which requires ski operators to place a “conspicuous notice” at or near the top of a ski trail or slope under certain circumstances:

Every ski area operator shall have the following duties with respect to their operation of a skiing area:

….

(6) To place, or cause to be placed, whenever snowgrooming or snowmaking operations are being undertaken upon any trail or slope while such trail or slope is open to the public, a conspicuous notice to that effect at or near the top of such trail or slope[.]

(Emphasis added.)

The district court held that the statutory language “snowmaking operations are being undertaken” is unambiguous and means “when snow is being made.” The district court concluded that the purpose of subsection (6) is to warn skiers of changed snow conditions or reduced visibility due to active snowmaking operations. Because no snow was actively being discharged from Snow Gun 16 on the day of Mr. Milus’s collision, the district court held that Sun Valley had no duty under section 6-1103(6) to place a notice at or near the top of the Lower River Run. Milus argues that the district court’s interpretation is too narrow because snowmaking equipment is dangerous both when actively shooting snow and when not actively shooting snow if the snowmaking equipment is in the middle of a beginner ski run.

“Statutory interpretation is a question of law over which this Court exercises free review.” Est. of Stahl v. Idaho State Tax Comm’n, 162 Idaho 558, 562, 401 P.3d 136, 140 (2017) (quoting Carrillo v. Boise Tire Co., 152 Idaho 741, 748, 274 P.3d 1256, 1263 (2012)). “Statutory interpretation begins with the literal language of the statute. If the statutory language is unambiguous, we need not engage in statutory construction and are free to apply the statute’s plain meaning.” Nordgaarden v. Kiebert, 171 Idaho 883, 890, 527 P.3d 486, 493 (2023) (alteration omitted) (quoting Callies v. O’Neal, 147 Idaho 841, 847, 216 P.3d 130, 136 (2009)). However, if the statutory language is ambiguous, this Court must “look to rules of construction for guidance and consider the reasonableness of proposed interpretations.” Id. (quoting City of Idaho Falls v. H-K Contractors, Inc., 163 Idaho 579, 582, 416 P.3d 951, 954 (2018)). “Statutory language is ambiguous where reasonable minds might differ or be uncertain as to its meaning.” Id. (alteration omitted) (quoting H-K Contractors, Inc., 163 Idaho at 582, 416 P.3d at 954).

The phrase “snowmaking operations are being undertaken” is ambiguous. The phrase “snowmaking operations” is broad and encompasses more than the discharge or production of snow. Interpreting subsection (6) as only applying when the snow was being actively discharged would effectively eliminate the word “operations” from the statute. But the statute does not impose the duty when “snowmaking is being undertaken,” rather the duty applies when “snowmaking operations are being undertaken.” When interpreting a statute, this Court has an obligation to give effect to all the words and provisions so that none are rendered superfluous. Moser v. Rosauers Supermarkets, Inc., 165 Idaho 133, 136, 443 P.3d 147, 150 (2019).

We are persuaded by Milus’s argument that subsection (6) creates a duty to warn skiers at the top of a ski slope or run of snowmaking equipment located further down the slope. Warning skiers of dangerous obstacles on the ski run or slope gives a skier the opportunity to choose a different ski run or to ski in a more cautious manner. The district court reasoned that this interpretation of section 6-1103(6) would be redundant because it would require two warnings for snowmaking equipment-one on the equipment itself, as required by subsection (2), and one at the top of the ski run, as required by our interpretation of subsection (6). This is not redundant- both warnings serve a purpose. Providing a warning at or near the top of the ski run or trail gives a skier the opportunity to choose a different ski run or to ski more cautiously, while a warning on or near the snowmaking equipment itself informs and warns the skier of the actual location of the snowmaking equipment on the ski run.

D. There is a genuine issue of material fact whether Sun Valley placed a conspicuous notice at or near the top of the Lower River Run trail on the day of the accident.

In light of our holding that the duty to place a notice at or near the top of the ski run or trail under section 6-1103(6) applies even when snow is not being actively discharged from snowmaking equipment, the question now becomes whether there is a genuine issue of material fact as to whether Sun Valley complied with that duty.

In support of its motion for summary judgment, Sun Valley submitted evidence that it placed a sign that read “CAUTION SNOWMAKING IN PROGRESS” at what it claims was the top of the River Run lift on the day of the accident. Sun Valley also submitted a declaration by Peter Stearns, the Director of Mountain Operations of Sun Valley Ski Resort, stating that, at all times during the ski season, the CAUTION SNOWMAKING IN PROGRESS sign is posted at the top of each ski lift. Additionally, Sun Valley presented a photograph showing the sign located at what it claims is the unloading area of the Lower River Run lift and a ski trail map showing the location of the sign relative to the top of Lower River Run.

In opposition to the motion, Ms. Milus submitted a declaration stating she did not see the sign on the day the accident occurred. Milus argued that it was possible the sign had been knocked down on the day of the accident. Milus additionally argued that the picture of the sign presented by Sun Valley does not show that the sign was “at or near the top” of Lower River Run.

The district court concluded that Ms. Milus’s statement that she did not personally observe a sign against Mr. Stearns’s declaration that a sign was posted at the top of every ski lift all season at Sun Valley only created a scintilla of evidence that would not preclude summary judgment.

On appeal, Milus argues that the district court erred because the evidence submitted was sufficient to establish a genuine issue of material fact concerning whether Sun Valley breached its duty under section 6-1103(6). We agree with Milus and reverse the district court’s grant of summary judgment on this claim.

For the reasons previously discussed, Sun Valley is held to the standard of care of an ordinarily prudent person when complying with subsection (6). We hold there is a genuine issue of material fact as to whether the “CAUTION SNOWMAKING IN PROGRESS” sign met the applicable standard of care. Sun Valley did not present sufficient evidence that its sign is at or near the top of the Lower River Run. The picture presented by Sun Valley shows the loading area of the Lookout Express lift, not the top of the Lower River Run. The trail map presented by Sun Valley does not show the location of the sign or an accurate distance between the River Run ski lift unloading area and the top of the Lower River Run. Moreover, Ms. Milus testified in her deposition that she did not see the sign on the day of the accident. As a result, there is a genuine issue of material fact whether Sun Valley’s sign complied with the requirements of subsection (6). We reverse the district court’s grant of summary judgment on this issue.

E. There is a genuine issue of material fact whether Sun Valley may avail itself of the assumption of the risk defense provided in Idaho Code section 6-1106.

However, the district court’s failure to address the argument does not prevent us from considering it in this instance.

Idaho formerly required an appealing party to obtain an adverse ruling on an issue to preserve the issue for appeal. However, we have now rejected the adverse ruling requirement in favor of a broader standard where “[i]t is not mandatory for a party-appellant to obtain an adverse ruling from the trial court to preserve an issue for appellate review, so long as the party’s position on that issue was presented to the trial court with argument and authority and noticed for hearing.”

Rich v. Hepworth Holzer, LLP, 172 Idaho 696, 703 n.4, 535 P.3d 1069, 1076 n.4 (2023) (internal citations omitted). Both parties presented their positions to the district court with argument and authority. Therefore, Sun Valley’s assumption of risk argument was preserved for appeal. Additionally, because we apply the same standard as the district court on a motion for summary judgment, we can consider this argument in the first instance because “[w]e review a district court’s grant of summary judgment de novo, and apply the same standard used by the district court in ruling on the motion.” Mattson v. Idaho Dep’t of Health &Welfare, 172 Idaho 66, 529 P.3d 731, 737 (2023) (quoting Marek v. Hecla, Ltd., 161 Idaho 211, 214, 384 P.3d 975, 978 (2016)).

Sun Valley contends that, even if we reverse the district court’s grant of summary judgment on its duties under section 6-1103, it is still entitled to summary judgment under section 6-1106, which describes the duties of skiers and provides that Mr. Milus expressly assumed the risk of injury resulting from skiing, and specifically the risk of injury from snowmaking equipment that was clearly marked in accordance with the provisions of section 6-1103:

Each skier expressly assumes the risk of and legal responsibility for any injury to person or property that results from participation in the sport of skiing including any injury caused by the following, all whether above or below snow surface: variations in terrain; any movement of snow including, but not limited to, slides, sloughs or avalanches; any depths of snow, including tree wells, or any accumulations of snow, whether natural or man made, including snowmaking mounds; freestyle terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris, lift towers and components thereof; utility poles, and snowmaking and snowgrooming equipment which is plainly visible or plainly marked in accordance with the provisions of section 61103, Idaho Code. Therefore, each skier shall have the sole individual responsibility for knowing the range of his own ability to negotiate any slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner which may cause or contribute to the injury of anyone.

I.C. § 6-1106 (emphasis added). Sun Valley argues that the plain language of section 6-1106 bars recovery by Milus as a matter of law because the snowmaking equipment that Mr. Milus collided with was plainly visible or plainly marked in accordance with Idaho Code section 6-1103.

F. Sun Valley is not entitled to attorney fees.

Sun Valley requests attorney fees on appeal pursuant to Idaho Code section 12-121, which permits the prevailing party to recover its reasonable attorney fees if the Court finds that the nonprevailing party brought, defended, or pursued the case frivolously, unreasonably, or without foundation. However, Sun Valley is not the prevailing party on appeal and, therefore, is not entitled to an award of attorney fees under the statute.

V. CONCLUSION

We reverse the district court’s grant of summary judgment in favor of Sun Valley and remand for further proceedings consistent with this opinion. As the prevailing party, Milus is awarded costs on appeal pursuant to Idaho Appellate Rule 40.

Chief Justice BEVAN, and Justices BRODY, STEGNER, and MOELLER CONCUR.

Interesting case where a release stopped claims for poor rescue at an underground amusement park in Kentucky.

Posted: October 2, 2023 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, Indoor Recreation Center, Kentucky, Release (pre-injury contract not to sue) | Tags: Aerial Adventure, assumption of the risk, Louisville Mega Cavern, Mega Quest, Mega Quest Adventure, Release, Ropes course, Suspension Trauma, Waiver | Leave a comment

Most of the decision centers around the instructions given by the court; however, there are great nuggets of help for the industry.

Bradley v. Louisville Mega Cavern, LLC, 2022-CA-0828-MR (Ky. Ct. App. May 19, 2023)

State: Kentucky; Court of Appeals of Kentucky

Plaintiff: Anthony Bradley, Individually and as Administrator of the Estate of Mitzi Westover

Defendant: Louisville Mega Cavern, LLC

Plaintiff Claims: failure to exercise ordinary care in the operation of the Mega Quest course and LMC’s failure to properly train its staff to respond to emergencies

Defendant Defenses: pre-existing health conditions and her own failure to exercise ordinary care and Release

Holding: For Defendant

Year: 2023

Summary

The deceased died at an underground amusement park after failing to maneuver an obstacle. The release she signed was ineffective as a release but was used to prove she assumed the risk of her injuries.

Facts

LMC operates an underground adventure park on the site of a former limestone mine in Louisville, Kentucky.[1] LMC operates several attractions on the site, including an underground, aerial adventure ropes course called Mega Quest. On August 17, 2017, Mitzi Westover, her husband Anthony Bradley, and her niece, Hanna Folk, purchased tickets for Mega Quest. Prior to taking part in any activity at LMC, they were required to read and execute a “Participant Agreement” (“the Agreement”).

As required, Westover, Bradley, and Folk electronically signed the Agreement. They then checked in at the front desk and were provided with equipment for the course. LMC provided a safety briefing and training on the course and use of the equipment. Shortly thereafter, the party began the Mega Quest course. Westover started an element that consisted of two horizontal ladders suspended from overhead wire ropes. Westover fell on the first ladder and was assisted by an LMC employee.

She fell again on the second ladder and was unable to get back on the ladder. The LMC employee called for a rescue via a lower-line kit. Westover was suspended on the harness for between five to eight minutes. Westover was responsive for most of this time. But as she was being lowered, Westover lost consciousness and became unresponsive. LMC called 911, which did not arrive on the scene for another nine minutes. Westover was transported to the hospital, where she died on August 22, 2017.

At trial, the Estate presented evidence that Westover’s death was caused by suspension trauma resulting from her extended time hanging unsupported on the harness. The Estate argued that this suspension trauma was caused by LMC’s failure to exercise ordinary care in the operation of the Mega Quest course and LMC’s failure to properly train its staff to respond to emergencies. In response, LMC argued that Westover’s death was caused by her pre-existing health conditions and her own failure to exercise ordinary care. Following the close of proof, the jury found that the Estate failed to prove that LMC failed to exercise ordinary care in the operation of the Mega Quest course and that such failure was a substantial factor in causing Westover’s death.

Following the close of proof, [trial] the jury found that the Estate failed to prove that LMC failed to exercise ordinary care in the operation of the Mega Quest course and that such failure was a substantial factor in causing Westover’s death.

This appeal followed.

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

The case had some very interesting actions and rulings. The trial judge ruled the release was not valid under Kentucky law and excluded it from the trial for that reason. The court also found that the immunity provided by the Kentucky agritourism-immunity statutes, in the release, were also not applicable and prevented the defendant from using those as a defense.

The trial court then ruled:

The Trial Court concluded that, even though the Release and agritourism-immunity provisions of the Agreement were unenforceable, the Agreement itself was still relevant to the disputed issues of negligence. The Trial Court redacted the bolded agritourism warning at the end of the Agreement, except for the line, “You are assuming the risk of participating in this . . . activity.”

The defendant then moved for a limiting instruction saying that the release could not be viewed as a release, but could prove the risks the deceased assumed. Stated another way, the release was used to prove the deceased assumed the risks of her injuries. The court granted this motion.

The Estate extensively argues that the Release provisions in the Agreement were not enforceable. However, the Trial Court agreed, finding that the release was not enforceable as a waiver or release of LMC’s liability for negligence. LMC does not appeal this ruling. Rather, the question on appeal is whether the Agreement was otherwise relevant to the factual matters in dispute; the question is whether the evidence was relevant, or if the prejudicial effect of the evidence substantially outweighed its probative value.

On appeal, the plaintiff argued the release should not have been used to prove assumption of the risk. The defense fought this argument but did not fight the issue of whether the release was valid under Kentucky law. This was so “weird,” even the appellate court pointed it out.

The issue on appeal then revolved around whether the release, as an assumption of the risk document, was “relevant” under the Kentucky rules of evidence.

All evidence is relevant and should be admitted unless it is specifically excluded under another rule of evidence or a law. However, the first hurdle is the evidence must be relevant.

Under KRE[4] 401, relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Under KRE 402, “[a]ll relevant evidence is admissible” unless otherwise excluded by the law or rules of evidence. “Evidence which is not relevant is not admissible.” KRE 402. Relevance is established by any showing of probativeness, however slight.

The appellate court ruled the trial court was correct. The “agreement” since it was no longer legally a release, was properly admitted to show the deceased assumed the risk which caused her death.

Another way that evidence can be excluded is if the value the evidence offered is outweighed by any negative value it may have. This legal argument is stated as “whether the Agreement’s probative value was substantially outweighed by its prejudicial effect.”

Under Kentucky law that is a three-step test.

To make sure a piece of evidence is admitted in a way that the jury understands the narrow reasons for its introduction and how it can be interpreted a jury instruction can be given with those limitations. Here the plaintiff failed to ask, at the right time, for that limiting instruction. By failing to ask the issue was waived.

The appellate court sided with the plaintiff on the value of the release or agreement as proof of assumption of the risk. But found that the level of damage to the plaintiff’s case was not so great that the case should be reversed on that point.

We agree with the Estate that the introduction of the Release and Indemnity portions of the Agreement posed a risk of confusing the jury. Without a limiting instruction, the jury had no guidance from the Court to determine how that language was to be read. The jury may have also been led to believe that it was to consider the legal issue regarding the enforceability of the Agreement. Under these circumstances, we believe that the Trial Court would have been justified in giving the Estate’s proposed instruction even though the issue was not raised by a contemporaneous objection.

This is great proof that a release can have a second life if properly written.

The next issue was the duties, the legal responsibility; the defendant has to the deceased. These duties are presented to the jury in a jury instruction and as such give the jury the definition they must follow in making their decision.

Here the plaintiffs wanted instructions that stated the defendant had to make the amusement park safe.

However, the trial court and appellate court rejected these instructions. The deceased was a business invitee, and the duties owed to a business invitee were adequately covered in other instructions in this case.

Another relevant issue argued by the plaintiff was whether or not a jury instruction and arguments made should have included the OSHA requirements for the operation of the amusement park. There was testimony that the staff was not trained in first aid or rescue, and OSHA requires both. However, OSHA only applies to employees, and the deceased was a patron of the park, not an employee.

Because OSHA standards only apply to employees, the plaintiff was correctly prohibited from giving these arguments.

The court upheld the ruling for the defendant in this case. Although mistakes were made, as there are in most trials, those mistakes were discretionary on the part of the court and did not rise to the level to change the outcome of the trial.

We conclude that the Trial Court’s evidentiary rulings and jury instructions did not amount to an abuse of discretion. Although the Agreement was not relevant to prove that Westover or her Estate waived any claim to liability based on LMC’s negligence, it was relevant and admissible as to the other disputed issues of negligence. Furthermore, the prejudicial effect of the Agreement did not substantially outweigh its probative value on these matters. The Release and Indemnity language in the Agreement was potentially misleading. However, the Estate did not make a contemporaneous request for an admonition. Therefore, the Trial Court’s failure to grant a limiting instruction did not amount to palpable error.

This decision is difficult to read because the arguments are couched in procedural and evidentiary issues rather than interpretation of the facts. However, that is how most cases are overturned at the appellate level, because of evidence or procedure, rather than what law is applied to the facts of the case.

So Now What?

Here is proof that writing your release to cover the risks associated with the activity or sport you are offering to the public has additional value. Granted, having the release written correctly to begin with might have saved a lot of this argument, but in any case, where your release is thrown out as a legal argument, assumption of the risk is a valid defense. Having your release written to cover the legal and knowledge issues, as in this case, may save your business.

What do you think? Leave a comment.

Jim Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor

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Bradley v. Louisville Mega Cavern, LLC, 2022-CA-0828-MR (Ky. Ct. App. May 19, 2023)

Posted: October 2, 2023 | Author: Recreation Law | Filed under: Assumption of the Risk, Challenge or Ropes Course, Indoor Recreation Center, Kentucky, Release (pre-injury contract not to sue) | Tags: Agritourism, Amusement Park, assumption of the risk, Kentucky, Mega Quest, Mega Quest Aerial Challenge, OSHA, Release, Underground Amusement Park, Waiver | Leave a comment

To Read an Analysis of this decision see:

Interesting case where a release stopped claims for poor rescue at an underground amusement park in Kentucky.

Bradley v. Louisville Mega Cavern, LLC, 2022-CA-0828-MR (Ky. Ct. App. May 19, 2023)

ANTHONY BRADLEY, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF MITZI WESTOVER APPELLANTS
v.
LOUISVILLE MEGA CAVERN, LLC APPELLEE

No. 2022-CA-0828-MR

Court of Appeals of Kentucky

May 19, 2023

NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE ANNIE O’CONNELL, JUDGE ACTION NO. 18-CI-004436

BRIEF FOR APPELLANTS:

Brenton D. Stanley

Jason Swinney

Louisville, Kentucky

Molly B. Stanley

Louisville, Kentucky

Kevin C. Burke

Jamie K. Neal

Louisville, Kentucky

BRIEF FOR APPELLEE:

Maxwell D. Smith

Ashley K. Brown

Betsy R. Catron

William J. Barker II

Lexington, Kentucky

BEFORE: CALDWELL, DIXON, AND ECKERLE, JUDGES.

OPINION

ECKERLE, JUDGE:

Anthony Bradley, Individually and as Administrator of the Estate of Mitzi Westover (collectively, “the Estate”) appeals from a judgment of the Jefferson Circuit Court that confirmed a jury verdict in favor of Louisville Mega Cavern, L.L.C. (“LMC”). The Estate argues that the trial court abused its discretion in its evidentiary rulings and in its instructions to the jury. Finding no abuse of discretion, we affirm.

I.
Facts and Procedural History

LMC operates an underground adventure park on the site of a former limestone mine in Louisville, Kentucky.^[1] LMC operates several attractions on the site, including an underground, aerial adventure ropes course called Mega Quest. On August 17, 2017, Mitzi Westover, her husband Anthony Bradley, and her niece, Hanna Folk, purchased tickets for Mega Quest. Prior to taking part in any activity at LMC, they were required to read and execute a “Participant Agreement” (“the Agreement”). The Agreement describes the course as follows:

The Mega Quest aerial challenge course is self-guided and includes short ziplines, sky bridges and walkways, (some inclined), located high in the cavern and some consisting of planking supported by steel cables and cable handrails. Mega Quest Participants are responsible for making all Equipment Transfers on their own after watching a training video, the careful viewing of which is extremely important and receiving instructions and training from tour guides using special equipment. The age limit for the Mega Quest challenge course is five years old. Participants must be able to reach a height of 50 inches with the palm of the hand with an outstretched arm while standing flatfooted on the floor, and weigh less than 310 pounds.

In addition, the Agreement addressed medical and safety concerns, stating:

The activities are designed for Participants of average mobility and strength who are in reasonably good health. Underlying medical problems including for example obesity, high blood pressure, cardiac and coronary artery disease, pulmonary problems, pregnancy, arthritis, tendonitis, other joint and muscular skeletal problems, or other medical, physical, psychological and psychiatric problems, may impair the safety and wellbeing of Participants on the course. All such conditions may increase the inherent risks of the experience and cause Participants to be a danger to themselves or others and Participants therefore must carefully consider those risks before choosing to participate, and they must fully inform the Provider or its staff of any issues, in writing, prior to using the Facilities. Provider reserves the right to exclude anyone from participating because of medical, safety, or other reasons it deems appropriate. Participant . . .: (1) represents that each Participant or Minor Participant is physically able to participate in the activities without being a danger to themselves or to others; (2) acknowledges that participation is purely voluntary, and done so in spite of the risks (3) is not pregnant, nor under the influence of alcohol, illegal drugs, or impairing legal drugs; (4) agrees to abide by all instructions provided by the Provider or the Provider’s staff; (5) will not make any adjustments to zipline or challenge course equipment but, instead, will allow all adjustments to be made only by or with the assistance of Provider or Provider’s staff; (6) will not intentionally flip over or invert while riding on the ziplines.

The Agreement goes on to identify “inherent” risks in the Mega Cavern:

Serious injuries can occur in zipline courses, challenge course tours, and bike park activities including the risk of injury or death. Risks include among others the following: falls, contact with other participants and fixed or falling objects, and moving about or being transported over the sometimes uneven terrain and grounds on which the activities are initiated and conducted[.] . . . The physical risks range from small scrapes and bruises to bites and stings, broken bones, sprains, neurological damage, and in extraordinary cases, even death. These risks, and others, are inherent to the activities that is, they cannot be eliminated without changing the essential nature, educational and other values of the experience. In all cases, these inherent risks, and other risks which may not be inherent, whether or not described above must be accepted by those who choose to participate.

Following these disclosures, the Agreement states that the participant understands the nature of the activities and voluntarily assumes the risks involved. This provision also states that LMC “has no duty to protect against the risks of illness, injury and death associated with these activities inherent and otherwise, and whether or not described above, including those which may result from negligent acts or omissions of other participants or staff.”

The Agreement also included a “Release and Indemnity” provision, stating that each participant will release, hold harmless, and indemnify LMC for any injuries caused by the activity, including claims of negligence and gross negligence. This section further states that the participant agrees as follows:

not to sue [Provider] for any liability for causes of action, claims and demands of any kind and nature whatsoever, including personal injury and death, products and premises liability and otherwise, that may arise out of or relate in any way to my . . . enrollment or participation in Provider’s programs. The claims hereby indemnified against include, among others, claims of participants and members of my . . . family, arising out of losses caused by, or suffered by me . . . . The agreements of release and indemnity include claims of negligence of a Released Party including without limitation claims of gross negligence, but not claims of willful injury.

The Agreement concluded with bolded language stating:

WARNING

Under Kentucky law, there is no liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism location if injury or death results exclusively from the inherent risks of the agritourism activity and in the absence of negligence. You are assuming the risk of participating in this agritourism activity. KRS^[2] 247.800-247.8010.

On July 31, 2018, Bradley, individually and as administrator of Westover’s Estate, brought this action against LMC asserting claims of personal injury and wrongful death. Bradley separately asserted a claim for loss of spousal consortium. LMC moved for summary judgment based on the “Release and Indemnity” provisions in the Agreement. LMC also argued that it was entitled to agritourism immunity under KRS 247.809. The Trial Court denied the motion for summary judgment, concluding that the pre-injury release was not enforceable. The Court also determined that LMC was not entitled to immunity under KRS 247.809.

Prior to trial, the Estate moved to exclude any reference to the Agreement, arguing that it was not relevant based on the Court’s finding it was unenforceable. LMC responded that the Agreement was relevant to show she had been informed of the risks of the activity, and that she had agreed she was able to participate without being a danger to herself or others. The Trial Court agreed with LMC and allowed introduction of the Agreement.

The Estate filed a motion for a new trial pursuant to CR^[3] 59.01. The Trial Court denied the motion and entered a judgment dismissing based upon the jury’s verdict. The Estate now appeals. Additional facts will be set forth below as necessary.

II.
Standard of Review

A trial court is vested with broad discretion in granting or denying a new trial, and its decision will not be reversed unless it was “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Since the Trial Court had the direct opportunity to consider the evidence and the conduct of the parties, any doubts must be resolved in favor of the Trial Court. CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 73 (Ky. 2010).

In this case, the Estate first argues that it was entitled to a new trial because the Trial Court erroneously admitted certain evidence. We review the Trial Court’s evidentiary rulings for abuse of discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id. at 581. More specifically, a court abuses the discretion afforded it when “(1) its decision rests on an error of law . . . or a clearly erroneous factual finding, or (2) its decision . . . cannot be located within the range of permissible decisions.” Miller v. Eldridge, 146 S.W.3d 909, 915 n.11 (Ky. 2004) (cleaned up).

III. Admission of the Agreement into Evidence

The Estate first raises several issues relating to the Trial Court’s admission of the Agreement into evidence. Based on the Trial Court’s finding that the Release and agritourism-immunity provisions in the Agreement were unenforceable, the Estate filed a motion in limine to exclude the Agreement or any reference to it at trial. The Estate argued that the Release provisions were irrelevant and likely to confuse the jury with matters not at issue.

In response, LMC noted that the Agreement set out the risks of the activity, including to persons with health issues. By signing the Agreement, Westover stated that she was aware of the risks, she was physically capable of performing the Mega Quest course, and that she was not under the influence of any illegal or legal intoxicating drugs. LMC argued that the disclosures in the Agreement were relevant to show that Westover failed to exercise ordinary care in undertaking the Mega Quest course. LMC further argued that the Agreement was relevant to show that Westover failed to inform LMC of her medical conditions or her medications.

Subsequently, the Estate requested a limiting instruction advising the jury that the Release was unenforceable, but “you may consider the ‘Participant Agreement’ for the purpose of determining whether Mitzi Westover was aware of the risks associated with the ‘Mega Quest’ ropes course.” The Trial Court declined to provide this instruction to the jury.

Under KRE^[4] 401, relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Under KRE 402, “[a]ll relevant evidence is admissible” unless otherwise excluded by the law or rules of evidence. “Evidence which is not relevant is not admissible.” KRE 402. Relevance is established by any showing of probativeness, however slight. Springer v. Commonwealth, 998 S.W.2d 439, 449 (Ky. 1999). However, under KRE 403, even relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”

The Estate cites two out-of-state cases holding that it is prejudicial error to admit an unenforceable liability-limiting agreement. Matador Production Co. v. Weatherford Artificial Lift Systems, Inc., 450 S.W.3d 580, 594 (Tex. App. 2014); and Blue Valley Co-op v. National Farmers Organization, 600 N.W.2d 786, 793-96 (Neb. 1999), overruled on other grounds by Weyh v. Gottsch, 303 Neb. 280, 929 N.W.2d 40 (2019). However, in both cases there were no claims that the agreements were relevant for any reason except as a waiver of liability. Matador, 450 S.W.3d at 595; Blue Valley, 600 N.W.2d at 794. In this case, the Trial Court expressly found that the Agreement was relevant to the disputed issues of negligence. Those issues included whether LMC notified Westover of the inherent risks of the activity, as well as any risks that the activity may have posed to individuals with limited mobility or medical conditions.

LMC further argued that the Agreement was relevant to determine the adequacy of its warnings. The Trial Court also concluded that the Agreement was a party admission by Westover under KRE 801A(b). By signing the Agreement, the Trial Court found that Westover manifested her assent to and adoption of the disclosures in the Agreement, as well as her own representations that she was physically capable of performing the activity. Obviously, the Estate raised other disputed issues of negligence, including whether LMC staff was adequately trained and had access to proper equipment in the event of an emergency.

While the Agreement may not have been admissible to prove that Westover waived or released LMC from liability for its own negligence, it was otherwise relevant to show whether Westover was informed of the risks of the Mega Quest course, as well as whether she properly informed LMC of any physical or medical conditions and medications that may have affected her safety on the course. Because these issues were relevant to the disputed issues of negligence, we conclude that the Trial Court did not abuse its discretion by allowing LMC to introduce the Agreement into evidence.

The more significant question is whether the Agreement’s probative value was substantially outweighed by its prejudicial effect. The Estate contends that the Release and Indemnity language was likely to confuse the jury about the ultimate issue of liability. Specifically, the Estate argues that the language may have misled the jury into believing that Westover had waived her right to claim negligence by LMC.

The Trial Court must make three basic inquiries when making a determination under KRE 403: (1) assessment of the probative worth of the evidence whose exclusion is sought; (2) consideration of the probable impact of specified, undesirable consequences likely to flow from its admission (i.e., “undue prejudice, confusion of the issues, or misleading the jury, . . . undue delay, or needless presentation of cumulative evidence”); and (3) a determination of whether the harmful effects from admission exceeds the probative worth of evidence. Webb v. Commonwealth, 387 S.W.3d 319, 326 (Ky. 2012) (citing Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky. 1996), overruled on other grounds by Chestnut v. Commonwealth, 250 S.W.3d 288 (Ky. 2008)). The task of weighing the probative value and undue prejudice of proffered evidence is inherently factual and, therefore, within the discretion of the Trial Court. Ross v. Commonwealth, 455 S.W.3d 899, 910 (Ky. 2015).

Here, the Estate asserts the jury was likely to be confused or misled by the Release and Indemnity language in the Agreement. But the Estate does not point to any testimony, evidence, or argument that emphasized the language or suggested that it was controlling as to LMC’s liability. Furthermore, the Trial Court redacted the bolded language excluding liability for injury or death arising from an agritourism activity, except for the assumption-of-risk language, but the Trial Court did not redact the Release and Indemnity provision at the Estate’s request. Under the circumstances, the Estate has not shown the prejudicial effect of the Agreement substantially outweighed its probative value.

Along similar lines, the Estate requested an instruction advising the jury that the Agreement’s Release and Indemnity language was unenforceable. The proposed instruction stated that “you may not determine that [LMC] is immune from lawsuit. However, you may consider the ‘Participant Agreement’ for the purpose of determining whether Mitzi Westover was aware of the risks associated with participation in the ‘Mega Quest’ ropes course.” The Estate takes the position that it was entitled to this limiting instruction under KRE 105(a), which provides as follows:

When evidence which is admissible as to one (1) party or for one (1) purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly. In the absence of such a request, the admission of the evidence by the trial judge without limitation shall not be a ground for complaint on appeal, except under the palpable error rule.

As discussed above, the Agreement was relevant and admissible as it related to the disputed issues of negligence and as a party admission. But the Agreement was not admissible for LMC to avoid liability under its waiver and release provisions. Indeed, the construction and enforceability of a written instrument are matters of law for the Trial Court to decide, not the jury. See
Morganfield National Bank v. Damien Elder & Sons, 836 S.W.2d 893 (Ky. 1992), and Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998). The Estate points out that KRE 105 required the Trial Court to give the instruction “upon request.” Consequently, the Estate argues that the Trial Court’s failure to give the instruction constitutes reversible error.

In denying the request, the Trial Court took the position that KRE 105 required the Estate to move for an admonition to the jury at the time the Agreement was introduced, and it was not a proper matter for jury instructions. The Kentucky Supreme Court addressed this issue in St. Clair v. Commonwealth, 140 S.W.3d 510 (Ky. 2004). In that case, a defendant waited until the close of evidence to request a limiting instruction as to the appropriate purpose of certain evidence pursuant to KRE 105. The Court held that

[a]lthough the substantive distinction between admonitions and instructions is not always clear or closely hewn to, we interpret the first word of KRE 105(a), i.e., “when,” to mean that the request for a “limited purpose” admonition must be made at the time that the evidence in question is admitted and no later than after the direct examination at which the evidence is introduced.

Id. at 559 (emphasis in original) (internal quotation marks and citations omitted). More recently, our Supreme Court reiterated this point, holding that, “[a]lthough it is within the trial court’s discretion to determine when the admonition should be given, it must be requested ‘no later than after the direct examination’ where the evidence is introduced.” Posey v. Commonwealth, 595 S.W.3d 81, 87 (Ky. 2019) (quoting St. Clair, 140 S.W.3d at 559). Because the Estate failed to request an admonition at the time the Agreement was introduced, we may only review the Trial Court’s denial of an instruction for palpable error.

In the civil context, CR 61.02 defines “palpable error” as an error that affects the substantial rights of a party. An appellate court may review an error and grant appropriate relief, even though the issue is insufficiently raised or preserved for review, “upon a determination that manifest injustice has resulted from the error.” “Manifest injustice” means that “if, upon consideration of the whole case, a substantial possibility does not exist that the result would have been different, the error will be deemed nonprejudicial.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006) (interpreting language in RCr^[5] 10.26, which has been construed “identically” to CR 61.02. See Nami Resources Company, L.L.C. v. Asher Land and Mineral, Ltd., 554 S.W.3d 323, 338 (Ky. 2018)) (citing Graves v. Commonwealth, 17 S.W.3d 858, 864 (Ky. 2000)).

Having said this, the mere possibility of prejudice is not enough to show manifest injustice. The Estate must show a likelihood – “a reasonable possibility” – that, but for the failure to give the instruction, a different result would have occurred. Parker v. Commonwealth, 482 S.W.3d 394, 407-08 (Ky. 2016). “Implicit in the concept of palpable error correction is that the error is so obvious that the trial court was remiss in failing to act upon it sua sponte.” Nami Res., 554 S.W.3d at 338 (Ky. 2018) (quoting Lamb v. Commonwealth, 510 S.W.3d 316, 325 (Ky. 2017)).

Prior to trial, the Estate sought to exclude introduction of the Agreement as irrelevant. The parties extensively litigated this matter, resulting in the Trial Court’s ruling that the Release portions of the Agreement were unenforceable, but that the Agreement was admissible for other purposes. Prior to introduction of the Agreement, the parties also discussed whether portions of the Agreement should be redacted. Based on these discussions, the Trial Court redacted a significant portion of the emphasized language. The Trial Court may well have concluded that the Estate’s decision not to request an admonition was a strategic choice to avoid emphasizing the remaining language in the Agreement.

At trial, LMC emphasized the language in the Agreement describing the risks of the activity and addressing the health and safety concerns. But as noted above, LMC neither argued that the Agreement was controlling as to liability, nor did it suggest that Westover waived her right to recover for any negligence on its part. Therefore, we must conclude that the Estate failed to establish that the Trial Court’s declination to give the limiting instruction amounted to palpable error.

IV. Instructions on LMC’s duties

The Estate also argues that the Trial Court erred by failing to give complete jury instructions on the issue of LMC’s duties. The Trial Court’s instruction advised the jury that LMC had the following duty:

to exercise ordinary care for the safety of its patrons. “Ordinary Care,” as applied to [LMC], means such care as you would expect an ordinarily prudent company engage[d] in the same type of business to exercise under similar circumstances.

The Estate’s proposed instruction included the “ordinary care” language, but also stated LMC’s general duty included the following specific duties:

to make the condition of the “Mega Quest” ropes course reasonably safe; and

(1) to discover unreasonable risks of harm associated with the “Mega Quest” ropes course; and either

(a) take active steps to make the risks safe; or

(b) give adequate warning of those risks.

The Estate’s proposed instruction further defined “unreasonable risk” as:

one that is recognized by a reasonable company in similar circumstances as one that should be avoided or minimized, or one that is in fact recognized by [LMC]. Even if you find that [LMC] adequately warned of the risks associated with participation in the “Mega Quest” ropes course, you may find that [LMC] failed to exercise ordinary care by failing to adopt further precautions against those risks, if it was foreseeable that, despite the warning, some risk of harm remained.

The Estate argues that it was entitled to instructions on the specific duties supporting its cause of action against LMC. A party plaintiff is entitled to have its theory of the case submitted to the jury if there is any evidence to sustain it. Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 250 (Ky. 1995), overruled on other
grounds by Martin v. Ohio Cnty. Hosp. Corp., 295 S.W.3d 104 (Ky. 2009). However, Kentucky law generally requires the use of “bare bones” instructions. Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 229 (Ky. 2005) (citing Lumpkins v. City of
Louisville, 157 S.W.3d 601, 605 (Ky. 2005)). “Bare bones” instructions are proper if they correctly advise the jury about “what [it] must believe from the evidence in order to return a verdict in favor of the party who bears the burden of proof” on that issue. Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 824 (Ky. 1992). The question on appeal is whether the allegedly erroneous instruction misstated the law. Id. at 823.

In Smith v. Smith, 563 S.W.3d 14, 18 (Ky. 2018), our Supreme Court held that a single, “ordinary care” jury instruction does not properly instruct the jury when liability is based upon land classifications or the possessor’s duty based upon those classifications. Id. But in that case, there was a factual issue as to whether the plaintiff was a licensee, a public invitee, or a business invitee. Id. at 17-18. Thus, the separate instruction was necessary for the jury to determine the applicable standard of ordinary care.

In this case, the Estate argued that LMC’s duties of ordinary care included duties to make the premises reasonably safe, to discover unreasonable risks of harm associated with the ropes course, and to take active steps to make those risks safe or to give adequate warning of those risks. Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 913-14 (Ky. 2013). But as noted in Shelton, the issue of duty is a purely legal one, while the standard of care is a factual question. Id. at 914. Here, there was no question that Westover was a business invitee.

Although the Estate asserts that LMC breached its duties to discover unreasonable risks of harm associated with the ropes course, its claims at trial were that LMC failed to use ordinary care in the operation of the ropes course and failed to give Westover adequate warning of the potential risks arising from negligence by either LMC or Westover. Any additional duties could be further explained during closing argument. Olfice, Inc., 173 S.W.3d at 230. Since these duties are adequately covered by the duty of ordinary care, the Trial Court did not abuse its discretion by denying the Estate’s proffered instruction.

V.
Admission of Evidence of Hydrocodone in Westover’s urine

The Estate additionally argues that the Trial Court abused its discretion by admitting evidence of hydrocodone in Westover’s urine. Prior to trial, the Estate filed a motion in limine to exclude a toxicology report showing that Westover had oxycodone and oxymorphone in her blood and hydrocodone in her urine when she was admitted to the hospital. Based on the toxicology report, LMC’s expert witness, Dr. William Smock, was prepared to testify that Westover had levels of oxycodone and hydrocodone in her system, but he was not able to definitively state that these levels caused any impairment or intoxication. Dr. Smock stated that Westover had a prescription for oxycodone, and that oxymorphone is a metabolite of oxycodone. But he could not locate her prescription for hydrocodone. LMC’s other medical expert, Dr. Greg Davis, provided similar testimony.

The Estate argues that the evidence and testimony should be excluded because neither physician could state with any reasonable certainty that Westover was impaired or intoxicated when she undertook the Mega Quest course. The Estate also contends that LMC sought to use the testimony as improper character evidence, branding Westover as an illicit drug user. But, as previously noted, LMC responded that the evidence was relevant because Westover represented that she was not under the influence of any impairing drugs. The Trial Court agreed with LMC and denied the Estate’s motion.

Generally, an expert’s opinion must be couched in terms of probability or reasonable certainty, and opinions which are expressed using language such as “possibility” may be properly excluded as speculative. Combs v. Stortz, 276 S.W.3d 282, 296 (Ky. App. 2009) (citing Schulz v. Celotex Corp., 942 F.2d 204, 208-09 (3d Cir. 1991)). But unlike in Calhoun v. CSX Transp., Inc., No. 2007-CA-001651-MR, 2009 WL 152970, at *13 (Ky. App. Jan. 23, 2009), aff’d in part, rev’d in part, 331 S.W.3d 236 (Ky. 2011), Drs. Smock and Davis were not testifying that Westover’s use of opiates caused her to be impaired or contributed to her injury. They merely testified as to the presence of those substances in her blood and urine at the time of her death.

While KRE 404(b) protects against the introduction of extrinsic act evidence when the evidence is offered solely to prove character, it allows such evidence to be introduced for a proper purpose. Burton v. Commonwealth, 300 S.W.3d 126, 136 (Ky. 2009). This evidence was relevant to show that Westover failed to disclose her use of these substances when she executed the Agreement. Furthermore, the testimony of Drs. Smock and Davis was subject to vigorous cross-examination, during which both admitted that there was no evidence that Westover was impaired.

The Estate maintains that LMC sought to portray Westover as an illicit user of hydrocodone. However, Dr. Davis conceded that Westover may have had a prescription for hydrocodone even though the prescription could not be located at the time of trial. The Estate also presented evidence that trace amounts of hydrocodone may have been found in Westover’s prescription for oxycodone. In addition, the Estate does not point to any evidence, testimony, or argument at trial suggesting that Westover should be denied relief because of her use of these drugs. Because the evidence was relevant and not unduly prejudicial, we cannot find that the Trial Court abused its discretion by allowing evidence and testimony concerning the presence of hydrocodone in Westover’s urine.

VI. Limitation on Cross-Examination

The Estate also argues that the Trial Court abused its discretion by limiting its ability to cross-examine LMC witnesses regarding standards and literature published by the Occupational Health and Safety Administration (“OSHA”). At trial, LMC’s owner, Jim Lowry, testified that LMC was not required to train its staff in first aid or CPR. LMC’s former safety manager, Kimberly Coleman, also testified that it was her understanding that LMC was not required to train its employees to the standards set out by OSHA and the Association for Challenge Course Technology (“ACCT”). When the Estate sought to cross-examine these witnesses about these standards, LMC responded that the OSHA standards were only applicable to employees and not participants in the activity. The Trial Court agreed and precluded the Estate from cross-examining the witness on this matter.

The Estate contends that the OSHA standards and literature were relevant to determine the standard of care expected of an operator of a ropes course and zip line such as LMC. But while industry standards or manuals can inform the standard of care that will satisfy a duty, neither establishes the duty itself. Spencer v. Arnold, No. 2018-CA-000479-MR, 2020 WL 4500588, at *7 (Ky. App. Jul. 24, 2020) (citing Carman v. Dunaway Timber Co., Inc., 949 S.W.2d 569, 571 (Ky. 1997)). As the Trial Court noted, the OSHA regulations and literature specifically referred to the duties owed to employees, not participants. Furthermore, Kentucky had not adopted the ACCT standards at the time of Westover’s injuries. Given the limited relevance of these materials, the Trial Court did not abuse its discretion by restricting the Estate’s cross-examination on these matters.

VII. Exclusion of portions of deposition testimony by LMC’s CR 30.02(b) representative

Finally, LMC designated General Manager Jeremiah Heath as its corporate representative pursuant to CR 30.02(6). Following Heath’s testimony at trial, the Estate sought to read two portions of Heath’s deposition into the record. Specifically, the Estate wanted to introduce deposition testimony in which Heath stated that he had informed LMC employees that they were not allowed to perform CPR. LMC objected, noting that the Estate had an opportunity to cross-examine Heath with his deposition testimony. The Trial Court agreed and sustained LMC’s objection.

The Estate notes that CR 32.01(b) permits the deposition of a corporate representative to be “used by an adverse party for any purpose.” The Estate further notes that the rule permits testimony to be read to the jury even though the designee is available to testify in person. Lambert v. Franklin Real Est. Co., 37 S.W.3d 770, 779 (Ky. App. 2000)(citing Kurt A. Philipps, Jr., 6 Kentucky Practice, CR 32.01 (5th ed. 1995)). However, that language is limited to use of testimony “admissible under the rules of evidence as though the witness were then present and testifying.” Hashmi v. Kelly, 379 S.W.3d 108, 112 (Ky. 2012) (quoting CR 32.01).

While the rule clearly permitted the Estate to cross-examine Heath with his prior deposition testimony, we agree with the Trial Court that his deposition testimony was not separately admissible after he testified. Use of the deposition in this manner would have been substantially prejudicial because LMC would have lacked the opportunity to rebut or explain the testimony without recalling Heath. See Graves by & Through Graves v. Jones, No. 2019-CA-0880-MR, 2021 WL 1431851, at *8 (Ky. App. Apr. 16, 2021). Furthermore, the Trial Court noted that it had sustained several of LMC’s objections during those portions of Heath’s deposition. Those sustained objections would have further limited the admissibility of those portions of the deposition. Given these considerations, we cannot find that the Trial Court abused its discretion by denying the Estate’s untimely request to read these portions of Heath’s deposition testimony to the jury.

VIII. Conclusion

The Trial Court’s instructions accurately stated the applicable law and correctly advised the jury about what it needed to believe from the evidence to return a verdict in favor of the Estate. We also conclude that the medical evidence concerning the presence of hydrocodone in Westover’s urine was relevant and not unfairly prejudicial. Finally, the Trial Court did not abuse its discretion by limiting the Estate’s cross-examination on OSHA standards or by declining to read Heath’s deposition into the record after he had testified. Consequently, we find no basis to disturb the jury’s verdict.

Accordingly, we affirm the judgment of the Jefferson Circuit Court.

ALL CONCUR.

———

Notes:

^[1] The property comprising the former limestone mine is owned by Louisville Underground, L.L.C. The Estate named that entity as a party defendant in its complaint. However, it was dismissed by agreed order prior to trial and is not a party to this appeal.

^[2] Kentucky Revised Statutes.

^[3] Kentucky Rules of Civil Procedure.

^[4] Kentucky Rules of Evidence.

^[5] Kentucky Rules of Criminal Procedure.

———

Snowmobiles are an inherent risk on ski slopes in California.

Posted: September 25, 2023 | Author: Recreation Law | Filed under: Assumption of the Risk, California, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: assumption of the risk, Collision, Inherent Risk, LLC., Mammoth Mountain Ski Area, Release, Snowmobile, Waiver | Leave a comment

Appellate court decision finds release stopped claims & plaintiff assumed the risk of hitting a stopped snowmobile on the slope.

Citation: Valter v. Mammoth Mountain Ski Area, LLC (Cal. App. 2023)

State: California, California Court of Appeals, Third District, Mono

Plaintiff: JOHN VALTER

Defendant: MAMMOTH MOUNTAIN SKI AREA, LLC

Plaintiff Claims: improperly drove the snowmobile up the mountain & defendant was grossly negligent

Defendant Defenses: doctrine of primary assumption of risk, and assumed the risk of colliding with a snowmobile when he signed Mammoth’s liability waiver.

Holding: For Defendant

Year: 2023

Summary

A season pass holder at Mammoth ski area was injured when he hit a snowmobile that was parked on the slopes. The California appellate court held the season pass stopped the plaintiff’s claims and also found that a snowmobile on the slopes is an inherent risk of skiing.

Facts

Mammoth is a ski resort in Mammoth Lakes. As is common in the ski industry, it uses snowmobiles in its operations and has taken certain steps to reduce the chance of collisions with guests. It has, for instance, created a snowmobile training program and developed training materials that, among other things, require its snowmobile drivers to limit their speed in congested areas, to ride on the side of the run providing the best visibility, to yield to guests, and to use flags and headlights when driving in public areas. It has additionally posted signs at the top of ski lifts warning that snowmobiles “may be encountered at any time,” included the same warning in its trail map, and, in its liability waiver for season-pass holders, required season-pass holders to acknowledge that “Skiing and Snowboarding involve risks posed by . . . collisions with . . . snowmobiles and other over-snow vehicles.”

Mammoth has also established preferred routes for its snowmobile drivers with the intent to limit collision risks. One of these routes formerly covered two ski runs called St. Moritz and Stump Alley. Stump Alley is a larger, popular run that ends at the base of the resort; St. Moritz is a smaller run that branches off Stump Alley. To provide a rough visualization of these runs, think of a rotated lowercase y-as in, A-with the longer line representing Stump Alley and the shorter line representing St. Moritz. For the designated route covering these runs, snowmobile drivers were instructed to stay to their left when going up St. Moritz; then, where St. Moritz meets Stump Alley, to make a slight right turn onto Stump Alley to avoid a steep area that is difficult for snowmobiles; and then, after passing this area, to travel across Stump Alley and then stay to their left when going up Stump Alley. A map of Mammoth’s preferred snowmobile routes shows the St. Moritz-to-Stump Alley route. As depicted in the map, the route crosses Stump Alley at an upward diagonal from right to left and then goes up the left of Stump Alley. Mammoth began developing this route at some time before 1989 and used it until late 2016.

In early 2016, one of Mammoth’s lift maintenance employees, Joshua Peters, drove his snowmobile up St. Moritz on his way to a lift maintenance station. Peters- who had completed Mammoth’s snowmobile safety training-drove up St. Moritz at about 15 miles per hour, slowed to about five miles per hour before exiting St. Moritz, and then continued at this speed on Stump Alley as he looked to cut across the run. Valter, an expert skier, was skiing down the left side of Stump Alley at the same time and began decelerating from about 30 miles per hour to make a left turn onto St. Moritz. Peters said he saw Valter from a distance of about 80 to 120 feet, slowed further, and then stopped. But Valter never saw Peters. Valter made three or four controlled turns a after Peters first saw him, and he then collided with Peters’s snowmobile on Stump Alley. Valter suffered significant injuries as a result.

Two other witnesses saw the accident. One was another Mammoth employee who was driving a snowmobile behind Peters. He afterward told an officer that Peters had stopped and that Valter was looking over his left shoulder just before the collision- though Valter told the same officer that he never looked over his shoulder. Another witness saw the accident from above on a ski lift. In a written statement, he said the snowmobile was driving slowly up Stump Alley diagonally from “skier[‘]s left to right”-as in, from the left side to the right side of the run from the perspective of a skier going downhill. He added that the snowmobile had slowed almost to a stop at the time of impact. But, he wrote, it was “almost as though [the] skier never saw [the] snow mobile”; the skier traveled in a “controlled line but it was directly into [the] snow mobile.”

Several photographs taken immediately after the collision show the snowmobile’s appearance and position at the time of the accident. The snowmobile is dark blue and flies an orange flag at its back. It is not obstructed by any apparent obstacles. Another photograph taken after the accident, which the parties marked up during Peters’s deposition, shows Peters’s path from St. Moritz to Stump Alley. Both parties accept that the photograph accurately depicts his path. The photograph (together with other photographs of the scene) shows Peters entered Stump Alley from the far left of St. Moritz near a sign describing different runs and then headed up Stump Alley at a sharp diagonal. According to a diagram that Mammoth personnel made after the accident, the distance between this sign and Peters’s snowmobile at the place of the collision was 44 feet.

Before the accident, and as a condition of holding a season pass, Valter signed a liability waiver. In the waiver, Valter agreed he “underst[oo]d Skiing and Snowboarding involve risks posed by . . . collisions with . . . snowmobiles and other over-snow vehicles,” “agree[d] that these risks and dangers are necessary to the sports of Skiing and Snowboarding,” “AGREE[D] TO EXPRESSLY ASSUME ANY AND ALL RISK OF INJURY OR DEATH which might be associated with [his] participation in the SPORTS,” and “AGREE[D] NEVER TO SUE, AND TO RELEASE FROM LIABILITY, Mammoth . . . for any . . . injury . . . which arises in whole or in part out of [his] . . . participation in the SPORTS . . ., including without limitation those claims based on MAMMOTH’S alleged or actual NEGLIGENCE ….”

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

The defendant was a season pass holder at Mammoth Mountain ski area. In obtaining the season pass, the plaintiff signed a release.

Releases in California stop all claims for ordinary or simple negligence. In order to defeat a release, the plaintiff must prove that the defendant was grossly negligent.

… Valter’s signing of the liability waiver bars him from suing Mammoth for ordinary negligence-which Valter does not dispute. We further conclude Valter cannot show Mammoth’s conduct rose to the level of gross negligence. The undisputed facts show, among other things, that snowmobiles are common at ski resorts, that Mammoth posted signs warning guests that snowmobiles could be encountered at any time, that Valter expressly acknowledged the risk of colliding with a snowmobile and agreed to assume the risk of Mammoth’s negligence, that Mammoth trained Peters on snowmobile safety, that Peters drove his snowmobile slowly and stopped or almost stopped before the collision, that his snowmobile flew an orange flag, and that, in the photographs taken immediately after the accident, no obstacles are shown obstructing a downhill skier’s ability to see Peters and his snowmobile in the area of the collision.

The plaintiff attempted to argue that several of the actions that Mammoth did were gross negligence, however, the court did not accept any of those arguments.

Although Valter argues Mammoth’s conduct here could be found grossly negligent for several reasons, we find none of his arguments persuasive. He first contends Mammoth could be found grossly negligent because the presence of snowmobiles is not an inherent part of skiing. But whether or not the presence of snowmobiles is an inherent part of skiing, we are at least satisfied that no reasonable person could find Mammoth grossly negligent simply because it used snowmobiles. The undisputed facts, again, show that snowmobiles are common at ski resorts. Mammoth’s former health and safety manager, for instance, explained that in the ski industry, snowmobiles are used “on a daily basis for lift maintenance, lift operations, and for ski patrol emergency transport.” Valter, who said he had skied about a 1,000 days in his lifetime on various mountains, never alleged differently. He instead acknowledged he commonly saw snowmobiles on ski runs that were open to the public. The undisputed facts, moreover, show that a ski resort’s use of snowmobiles can improve safety. Snowmobiles, for example, allow lift maintenance technicians (like Peters) to respond quickly when a chair lift maintenance safety issue arises that requires an immediate response. Again, Valter never alleged differently and, on appeal, states he does not disagree “that snowmobiles are very useful and efficient in the operation of a ski resort.” On these undisputed facts, we cannot say that Mammoth’s decision to use snowmobiles evidenced “either a ‘” ‘want of even scant care'”‘ or ‘” ‘an extreme departure from the ordinary standard of conduct,'” ‘” even though, as Valter asserts elsewhere in his brief, snowmobiles (like most, if not all, snow equipment) pose some potential risk to skiers.

What is significant here is another court, based on the plaintiff’s facts has held that the plaintiff failed to prove enough issues to prove gross negligence. In the past, the plaintiff simply had to claim gross negligence, and the courts would throw out the release and proceed to trial. Nowadays, the courts are tired of every claim arguing gross negligence and taking it upon themselves to find the facts the plaintiff is arguing cannot rise to the level of gross negligence.

On top of that, the arguments set forth by the court can now be used by other defendants to prove they were not grossly negligent. Those arguments are:

The presence of snowmobiles is not an inherent part of skiing.
no reasonable person could find Mammoth grossly negligent simply because it used snowmobiles
undisputed facts, again, show that snowmobiles are common at ski resorts
undisputed facts, moreover, show that a ski resort’s use of snowmobiles can improve safety
Snowmobiles, for example, allow lift maintenance technicians (like Peters) to respond quickly when a chair lift maintenance safety issue arises that requires an immediate response

The next section of the decision is where the plaintiff stretched the facts to far. The plaintiff argued that Mammoth never told skiers where the designated snowmobile routes were. However, the court found the routes were not as important as all the warnings that Mammoth put in front of its guests about snowmobiles.

And failing to share the routes with the skiers at Mammoth did not rise to the level of gross negligence.

But we conclude no reasonable person could find Mammoth grossly negligent simply because it failed to share these maps-a practice that no ski resort, as far as Valter has shown, has adopted.

The arguments then descended into arguments about distance. Was the snowmobile, which was stopped at the time, off the route, not known by the plaintiff and if so by inches or yards.

Third, Valter argues Mammoth could be found grossly negligent because Peters failed to follow Mammoth’s preferred snowmobile route for St. Moritz. According to the preferred snowmobile route, again, Peters should have stayed to his left when going up St. Moritz; then, where St. Moritz meets Stump Alley, made a slight right onto Stump Alley to avoid a steep area that is difficult for snowmobiles; and then, after passing this area, traveled across Stump Alley and up the left side of Stump Alley. But according to Valter, Peters instead “drove up near the middle of St. Moritz” (rather than the left), “made a looping right turn near the top of St. Moritz at its intersection with Stump Alley” (rather than a slight right), and “intend[ed] to drive up the right side of Stump Alley” (rather than drive across Stump Alley and up the left side of the run). As a result, Valter asserts, Peters was “several yards from where he was supposed to be before trying to cross Stump Alley” at the time of the accident.

However, the court found this really did not matter because the plaintiff could not show his statements were valid. There was nothing in the evidence that showed the plaintiff’s allegations were true. “But much of Valter’s alleged facts lack evidentiary support.“ Then the court held that even if the snowmobile driver was “off route” it did not matter because the plaintiff could not prove that being off route made any difference.

The plaintiff argued Mammoth was grossly negligent for designating the snowmobile route in question as being grossly negligent.

He reasons that Mammoth should have chosen a different route because it knew Stump Alley was a popular run, knew skiers “coming down Stump Alley ‘hug’ the tree line on the left in order to turn left onto St. Moritz,” acknowledged that these trees would have grown substantially since the snowmobile routes were initially established around 1989, knew snowmobiles on St. Moritz pose a potential danger to skiers, knew other routes were available, and never conducted any safety, feasibility, or visibility studies for the route. He adds that Mammoth’s new snowmobile routes no longer use St. Moritz (though he says the “change was not made in response to Valter’s injury”) and that Mammoth now uses snowmobile corridors that are marked off with stakes and ropes.

The court rejected that argument on two different grounds. The first was the ski area still inundated its guests with warnings about snowmobiles being on the runs. The second was the plaintiff could not prove that selecting that run for a snowmobile route was done incorrectly, without planning or in any way increased the risk to skiers.

Finally, the plaintiff was shot down because the stretches in the facts went too far for the court. “But Valter’s allegations cannot be squared with the undisputed facts.”

First, in his own telling, he was traveling at a speed less than 30 miles per hour, as he was decelerating from 30 miles per hour at the time of the collision. And second, according to Peters’s undisputed testimony, Valter managed to make three or four controlled turns after Peters saw him- demonstrating that the issue is more that Valter failed to notice Peters than that he lacked time to avoid Peters. At any rate, because Valter raised this argument for the first time in his reply brief, and without good cause, we find the argument forfeited.

The court said the arguments made by the plaintiff, individually or as a group failed to show any gross negligence on the part of the defendant ski area.

So Now What?

The definition of inherent, is changing either by statute or by law. California has no ski area safety statute. However, the courts have expanded the definition of inherent risk to include snowcats, Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344
and now snowmobiles. California now joins Colorado in finding a parked snowmobile is an inherent risk of skiing, see A parked snowmobile is an inherent risk of skiing for which all skiers assume the risk under Colorado Ski Area Safety Act.

Inherent risk used to be those risks that were part and parcel of the activity, without the activity of man. Now, in skiing at least by statute or law, the inherent risks of skiing have expanded. You go skiing or boarding you assume the risk of hitting something on the slopes that is either natural or manmade.

For other articles about the inherent risks see:

A season pass release for a Pennsylvania ski are was limited to the inherent risks of skiing. Consequently, the plaintiff was able to argue his injury was not due to an inherent risk.

Hitting a rock while skiing in Montana is an inherent risk of the sport. Other interesting statements by the court though create an interesting decision.

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

Minnesota Supreme Court allows skier v. skier lawsuits in MN. Colliding with a tree is an inherent risk but colliding with a person is not?

Plaintiff cannot assume a risk which is not inherent in the activity or which he does not know.

Under Pennsylvania law, a collision with other skiers or boarders is an inherent risk of skiing. Skiing off the trail because of the collision is also an inherent risk of skiing.

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

What do you think? Leave a comment.

James H. “Jim” Moss

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

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Outdoor Recreation Insurance, Risk Management, and Law

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Valter v. Mammoth Mountain Ski Area, LLC (Cal. App. 2023)

Posted: September 25, 2023 | Author: Recreation Law | Filed under: Assumption of the Risk, Colorado, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: assumption of the risk, Collision, Inherent Risk Release, Mammoth Mountain Ski Area, ski area, skiing, Snowmobile, Waiver | Leave a comment

To Read an analysis of this case see:

Snowmobiles are an inherent risk on ski slopes in California.

Valter v. Mammoth Mountain Ski Area, LLC (Cal. App. 2023)

JOHN VALTER, Plaintiff and Appellant,
v.
MAMMOTH MOUNTAIN SKI AREA, LLC, Defendant and Respondent.

C096036

California Court of Appeals, Third District, Mono

September 18, 2023

NOT TO BE PUBLISHED

Super. Ct. No. CV170111

BOULWARE EURIE, J.

Mammoth Mountain Ski Area, LLC, is a ski resort that, like many ski resorts, uses snowmobiles in its operations. John Valter sued Mammoth after colliding with one of these snowmobiles while skiing. He alleged that a Mammoth employee improperly drove the snowmobile up the mountain and then stopped in his path. On Mammoth’s motion for summary judgment, the trial court found his claims failed as a matter of law for two reasons. First, it found Valter’s claims barred under the doctrine of primary assumption of risk, reasoning that a collision with a plainly visible snowmobile is a risk inherent in skiing and that Mammoth had not increased this risk. Second, it found Valter’s claims barred because he expressly assumed the risk of colliding with a snowmobile when he signed Mammoth’s liability waiver. In the waiver, Valter acknowledged the risks of colliding with snowmobiles and excused Mammoth for liability for its negligence.

On appeal, Valter contends neither ground for granting summary judgment is valid. Starting with the doctrine of primary assumption of risk, he asserts the doctrine is inapplicable because the risk of colliding with a snowmobile is not a risk inherent in skiing and, even it were, Mammoth improperly increased this risk. Turning to express assumption of risk, he asserts Mammoth’s conduct was grossly negligent and so exceeded the scope of the liability waiver. We limit our discussion to Valter’s second argument. Because we conclude the trial court properly granted summary judgment on the ground of express assumption of risk, we affirm on that basis.

BACKGROUND

Factual Background

Procedural Background

Following the accident, Valter sued Mammoth for premises liability and negligence, alleging that Mammoth failed to maintain the ski area in a safe condition and failed to provide adequate warning of the alleged unsafe condition. He reasoned that Peters improperly stopped his snowmobile in front of his path without providing adequate warning.

Mammoth later filed a motion for summary judgment, asserting that Valter’s claims failed as a matter of law for two reasons. It contended his claims were barred under the doctrine of primary assumption of risk because a potential collision with a snowmobile is a risk inherent in skiing and it had not unreasonably increased this risk. It also asserted his claims were barred because, in signing the liability waiver, he had expressly agreed to assume the risk of its negligence. Although Mammoth acknowledged that the waiver would not cover its gross negligence, it argued that Valter could not prove gross negligence here.

Valter opposed the motion. To Mammoth’s argument concerning primary assumption of risk, he contended snowmobiles have nothing to do with skiing and, even if they did, Mammoth increased the risk inherent in skiing in two ways: first, because Mammoth selected a dangerous snowmobile route, as skiers traveling down the popular Stump Alley run are unable to see snowmobiles traveling up St. Moritz and lack adequate warning of snowmobiles; and second, because Peters dangerously deviated from the snowmobile route when he traveled up the center of St. Moritz and up the right (skier’s left) of Stump Alley. To Mammoth’s argument concerning express assumption of risk, Valter contended Mammoth’s conduct rose to the level of gross negligence and so fell outside the scope of the liability waiver. He reasoned that Mammoth was grossly negligent because it failed to provide adequate warnings about snowmobiles, it chose a dangerous snowmobile route, and Peters dangerously deviated from this route.

The trial court granted Mammoth’s motion, agreeing with both of Mammoth’s arguments. Starting with the facts, the court found the undisputed facts showed Mammoth warned skiers about the potential risk of colliding with snowmobiles, adopted a snowmobile safety manual, and required training for employees operating snowmobiles. The court further, among other things, found the undisputed facts showed Peters slowed and then stopped on Stump Alley after exiting St. Moritz, Peters’s snowmobile was in plain view before the collision on a clear and sunny day, snowmobiles are regularly used at ski resorts, and Valter had expressly agreed to assume the risk of colliding with snowmobiles when he signed a liability waiver for his season pass.

The court then turned to Mammoth’s arguments. Beginning with Mammoth’s argument grounded on primary assumption of risk, it found a collision with a plainly visible snowmobile is a risk inherent in skiing, adding “that a snowmobile is a commonly used and essential piece of equipment necessary for the practical operation of a ski mountain.” It further found Mammoth had not increased this inherent risk. While it accepted that Peters might have deviated from the snowmobile route by several feet, it found this detail immaterial and noted that Peters had attempted to yield to downhill skier traffic on Stump Alley, slowed to five miles per hour as he looked for a safe opportunity to cross, and stopped in a plainly visible location before the collision. Turning to Mammoth’s argument premised on express assumption of risk, the court found Valter expressly excused Mammoth for liability for its ordinary negligence. Although it found the waiver would not excuse Mammoth for liability for gross negligence, it concluded Valter could not show gross negligence here.

After the court entered judgment in Mammoth’s favor, Valter timely appealed.

DISCUSSION

Standard of Review

A trial court may grant a motion for summary judgment “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).) To meet its burden on summary judgment, a moving defendant must show either that one or more elements of the plaintiff’s causes of action cannot be established or that there is a complete defense to the plaintiff’s case. (Id., subd. (p)(2).) If the defendant meets this initial burden, the burden then shifts to the plaintiff to show that a triable issue of one or more material facts exists. (Ibid.) A factual issue is material if it could make a difference in the disposition of the motion. (Cal. Rules of Court, rule 3.1350(a)(2).) And a factual issue is triable if “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)

” ‘” ‘We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.'” ‘” (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286.) We also” ‘liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.'” (Ibid.)

Express Assumption of Risk

Valter contends neither of the trial court’s grounds for granting Mammoth’s motion for summary judgment are valid. He first asserts the trial court wrongly granted summary judgment on the ground that the risk of colliding with a snowmobile is an inherent risk of skiing. He reasons that the risk of a snowmobile collision is not an inherent risk of skiing and, even if it were, Mammoth’s misconduct increased this risk. He further asserts the court wrongly granted summary judgment on the additional ground that he expressly agreed to assume the risk of Mammoth’s negligence, reasoning that Mammoth’s conduct was grossly negligent and so exceeded the scope of the agreement. Because we conclude no reasonable person could find Mammoth’s conduct rose to the level of gross negligence, we reject Valter’s challenge to the latter ground for granting summary judgment and affirm on that basis.

As a condition of receiving a season pass for Mammoth, Valter expressly agreed to assume the risk of Mammoth’s negligence. In the context of sports, including for skiing, courts have consistently found these types of agreements are valid when they excuse liability for ordinary negligence-that is, for “a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-754, 759 (City of Santa Barbara) [“a number of cases have upheld agreements insofar as they release liability for future ordinary negligence in the context of sports and recreation programs”]; see also Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1259 [finding Mammoth’s liability waiver valid].) But our Supreme Court has explained that these agreements generally cannot excuse liability for gross negligence-that is, for conduct evidencing “either a ‘” ‘want of even scant care'”‘ or ‘” ‘an extreme departure from the ordinary standard of conduct.'” ‘” (City of Santa Barbara, at p. 754.)

Applying these principles here, we conclude Valter’s signing of the liability waiver bars him from suing Mammoth for ordinary negligence-which Valter does not dispute. We further conclude Valter cannot show Mammoth’s conduct rose to the level of gross negligence. The undisputed facts show, among other things, that snowmobiles are common at ski resorts, that Mammoth posted signs warning guests that snowmobiles could be encountered at any time, that Valter expressly acknowledged the risk of colliding with a snowmobile and agreed to assume the risk of Mammoth’s negligence, that Mammoth trained Peters on snowmobile safety, that Peters drove his snowmobile slowly and stopped or almost stopped before the collision, that his snowmobile flew an orange flag, and that, in the photographs taken immediately after the accident, no obstacles are shown obstructing a downhill skier’s ability to see Peters and his snowmobile in the area of the collision. Considering the undisputed facts here, we conclude that Mammoth met its burden to show that it is entitled to judgment on the ground of express assumption of risk. We also conclude that Valter has failed to raise any triable issue of material fact to preclude summary judgment. (See Joshi v. Fitness Internat., LLC (2022) 80 Cal.App.5th 814, 828 [“although the existence of gross negligence is a matter generally for the trier of fact [citation], it may be determined as a matter of law on summary judgment in an appropriate case”].)

Second, Valter suggests Mammoth could be found grossly negligent because it never shared its designated snowmobile routes with its guests. But Mammoth repeatedly cautioned guests about snowmobiles and explained they could be encountered at any time. Signs at the top of the lifts at Mammoth, for instance, explain that snowmobiles “may be encountered at any time.” The Mammoth trail map says the same: Snowmobiles “may be encountered at any time.” And the liability waiver that Valter signed further warned about the presence of snowmobiles and the risk of collisions, stating that Valter “underst[oo]d Skiing and Snowboarding involve risks posed by . . . collisions with . . . snowmobiles and other over-snow vehicles.” Even Valter agreed “Mammoth provide[d] [him] a warning that [he] may encounter snowmobiles,” though he said Mammoth never mentioned moving snowmobiles. Considering the undisputed facts on this topic, we accept that Valter would have had more information about the potential for encountering snowmobiles had Mammoth shared its snowmobile routes with its guests. But we conclude no reasonable person could find Mammoth grossly negligent simply because it failed to share these maps-a practice that no ski resort, as far as Valter has shown, has adopted. (See Brown v. El Dorado Union High School Dist. (2022) 76 Cal.App.5th 1003, 1028-1030 [no gross negligence as a matter of law, in a case involving a student’s concussion playing football, even though the school district “could have done more to educate students and family” about concussions].)

But much of Valter’s alleged facts lack evidentiary support. He claims Peters “intend[ed] to drive up the right side of Stump Alley” based on the statements of an officer who spoke with Peters after the accident. But according to the officer, Peters characterized his route before the accident, not the route he intended to follow afterward. Valter further claims Peters ended up several yards off the snowmobile route. But he cites nothing in support and appears to rely only on speculation. He also cites a photograph to show Peters drove near the middle of St. Moritz. But the cited photograph shows Peters’s route along the left side of St. Moritz. Valter appears to characterize the photograph differently because it shows open snow to the left on part of Peters’s path. But as the Mammoth trail map and snowmobile route map show, snowmobile drivers going up St. Moritz will-even if they stay to their far left on St. Moritz-have open snow to their left as they approach Stump Alley. This area, however, is not part of St. Moritz. It is instead part of a different run, Patrolmen’s, that branches off St. Moritz immediately after St. Moritz branches off Stump Alley. As the photograph of Peters’s path shows, moreover, because of trees, Peters could not have driven farther to the left at the point where St. Moritz meets Stump Alley.

In any event, even if Peters deviated from the snowmobile route and ended up “several yards” off the route, we find no reasonable person could find his conduct demonstrated gross negligence. Even assuming that Peters’s driving left him somewhat off the designated route, the undisputed facts still show he exercised a degree of caution: He traveled slowly up the mountain, reduced his speed to five miles per hour as he exited St. Moritz, continued at five miles per hour on Stump Alley, and, after seeing Valter, slowed further and either stopped or almost stopped. Valter does not dispute these facts. The photograph depicting Peters’s path, moreover, shows, if nothing else, that Peters could not have driven farther to the left at the point where St. Moritz meets Stump Alley. And photographs taken immediately after the collision show that Peters’s snowmobile flew an orange flag and that no apparent obstacle obstructed a downhill skier’s ability to see Peters and his snowmobile while on Stump Alley. On these undisputed facts, we conclude no reasonable person could find that Peters’s conduct evidenced either a want of even scant care or an extreme departure from the ordinary standard of conduct, even if, as Valter asserts, Peters was “several yards” off the designated route at the time of the collision.

We find that true even though Valter suggests that Mammoth could be found grossly negligent even if Peters were “mere inches” off the designated route. Valter bases his point on our court’s opinion in Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546. In that case, a gym deliberately placed a piece of exercise equipment less than four feet behind a treadmill, even though it knew the treadmill manufacturer’s manual said to provide a minimum six-foot clearance behind the treadmill for user safety. (Id. at pp. 549, 551, 558.) A gym member later sued the gym for negligence after falling off the treadmill and hitting her head on the equipment behind it. (Id. at pp. 548-549.) But the trial court found her claims failed as a matter of law on summary judgment, reasoning that the gym member had signed a liability waiver and the gym’s conduct could not constitute gross negligence. (Id. at p. 553.) On appeal, we reversed. We found a jury reasonably could find the facts demonstrated gross negligence, including by finding that it is standard practice in the industry to provide a minimum six-foot safety zone behind treadmills, that the gym failed to follow this standard practice to accommodate more members to make more money, that the gym took no mitigation measures, and that, as an expert implied, the gym’s failure to provide the standard safety zone was an extreme departure from the ordinary standard of conduct. (Id. at pp. 557-558, 567.)

Attempting to apply Jimenez‘s reasoning here, Valter suggests that if “mere inches” could support a claim of gross negligence in that case, then surely several yards could support a claim of gross negligence here. We find differently. To start, as noted, Valter cites no facts showing that Peters was several yards off the designated route at the time of the accident. But even setting that aside, we find Jimenez is distinguishable on several levels. First, unlike the plaintiff there, Valter cites no expert opinion suggesting that a “mere inches” deviation-or even a “several yards” deviation-from a designated snowmobile path is an extreme departure from the ordinary standard of conduct. And second, unlike the defendant in Jimenez, Mammoth implemented various safety precautions to limit collision risks, including by warning guests about snowmobiles, training snowmobile operators, and using designated snowmobile routes. We find Jimenez of limited help to Valter for these reasons.

Next, Valter asserts Mammoth could be found grossly negligent in using St. Moritz as one of its designated snowmobile routes. He reasons that Mammoth should have chosen a different route because it knew Stump Alley was a popular run, knew skiers “coming down Stump Alley ‘hug’ the tree line on the left in order to turn left onto St. Moritz,” acknowledged that these trees would have grown substantially since the snowmobile routes were initially established around 1989, knew snowmobiles on St. Moritz pose a potential danger to skiers, knew other routes were available, and never conducted any safety, feasibility, or visibility studies for the route. He adds that Mammoth’s new snowmobile routes no longer use St. Moritz (though he says the “change was not made in response to Valter’s injury”) and that Mammoth now uses snowmobile corridors that are marked off with stakes and ropes.

But although we accept that Mammoth could have taken more precautions to ensure skier safety before Valter’s injury, its failure to do so cannot support a claim for gross negligence here. Mammoth, again, had taken several steps to limit potential collisions on St. Moritz before Valter’s injury, including warning guests about snowmobiles, requiring training for its snowmobile drivers, and requiring these drivers to yield to guests, to fly an orange flag and use headlights, and to stay to their left while driving up St. Moritz-which would place them on the opposite side of the run from skiers who were (as Valter puts it) hugging the tree line coming down Stump Alley to St. Moritz. And while Valter claims Mammoth should have used a route other than St. Moritz, he has not shown, or even alleged, that any alternate route would have been safer.

Nor has Valter shown that Mammoth’s process for selecting St. Moritz as one of its snowmobile routes was inadequate. Mammoth may not have conducted formal studies about the use of St. Moritz, but its personnel still considered potential routes that would, in their view, maximize safety and then tested their conclusions about best routes. For the St. Moritz-to-Stump Alley route, for example, Mammoth personnel skied down Stump Alley while a snowmobile was on St. Moritz and “determined that it was very easy to see the snowmobile.” And in the decades before Valter’s injury, nothing in the record shows the use of St. Moritz harmed a single skier or snowboarder. Indeed, the record shows only one other snowmobile collision in the previous 40 years at Mammoth, with the other collision occurring on a hill after a beginner skier lost control and hit a ski school’s snowmobile.

Mammoth, to be sure, could have taken even more precautions to ensure skier safety before Valter’s injury. As Valter notes, for example, Mammoth could have enhanced safety further through the earlier adoption of snowmobile corridors. But he cites not one ski resort that used snowmobile corridors before the time of his injury, and we find this limited consideration insufficient to support a potential claim for gross negligence. Considering the undisputed facts here, we conclude no reasonable juror could find Mammoth’s use of St. Moritz in its snowmobile route evidenced either a want of even scant care or an extreme departure from the ordinary standard of conduct. And we find that so even though we accept, as Valter argues, that Mammoth did not pursue all possible options for limiting collision risks. (See Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 361 [no gross negligence as a matter of law even though the city did not “pursue all possible options” when attempting to save a swimmer].)

Lastly, Valter contends several triable issues of material fact preclude summary judgment. He starts with the visibility of the snowmobile. He asserts Peters’s deviation from the route and failure to be “at the left side of St. Moritz when he reached the top of that run” endangered skiers “turning left around a blind corner onto St. Moritz.” Explaining the blind corner, he states a skier coming down Stump Alley cannot see “down much of St. Moritz” because of the angle at which St. Moritz meets Stump Alley, trees, and other obstacles. He adds that Peters’s snowmobile was dark blue and so could be “easily lost in the shadows covering the run [St. Moritz] at the time.”

But Valter’s allegations cannot be squared with the undisputed facts. Although Valter claims Peters failed to be at the left side of St. Moritz at the top of that run, the photograph showing Peters’s route-which Valter relies on-shows Peters could not have been farther to the left at that location. Although Valter further claims Peters’s snowmobile could have been lost in the shadows present at the time, the photograph he cites purportedly showing these shadows shows clear skies and white snow, with the only shadow depicted being the photographer’s own. And although Valter notes some obstacles may prevent a skier from seeing “down much of St. Moritz” while coming down Stump Alley, Peters’s snowmobile was not on St. Moritz at the time of the accident. Nor was it “coming around a blind corner when it struck him,” as Valter repeatedly asserts in his reply brief. The photograph of Peters’s route, again, shows Peters entered Stump Alley from the far left of St. Moritz and then traveled up Stump Alley before the accident. Other photographs show Peters’s snowmobile was on Stump Alley at the time of the accident and not obstructed by any apparent obstacles. And all witnesses who described Peters’s speed explained that he traveled slowly up Stump Alley and then stopped or almost stopped before Valter skied into him. Valter has failed to show a triable issue of material fact in these circumstances.

Nor are we persuaded to find differently merely because, as Valter notes, snowmobiles are not as loud and massive as certain other snow equipment-namely, snowcats. Valter discusses snowcats in an attempt to distinguish our court’s earlier decision in Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, a case involving a skier who was injured after colliding with a snowcat that was 30 feet long and 18 feet wide and had a safety beacon, warning lights, and an audible alarm. (Id. at pp. 348, 362.) Although the snowcat in that case turned without using a turn signal before the collision, we ultimately found other warnings about the snowcat’s presence (including the snowcat’s large size and loud sound) barred the skier from claiming that Mammoth was grossly negligent as a matter of law. (Id. at p. 363.) Attempting to distinguish the case, Valter asserts a snowmobile is not as obvious as a snowcat. But while that is true, our standard is not whether a snowmobile is comparable to a snowcat. And on the undisputed facts here-which, among other things, show that snowmobiles are common at ski resorts, that Peters drove his snowmobile slowly and stopped (or almost stopped) before the collision, that the snowmobile flew an orange flag, and that no apparent obstacle obstructed a downhill skier’s ability to see Peters and his snowmobile on Stump Alley-we conclude that no reasonable person could find Mammoth grossly negligent.

Valter alternatively, in his reply brief, argues he lacked sufficient time to avoid Peters even if Peters and his snowmobile were plainly visible. That is so, he reasons, because he was skiing at about 30 miles per hour (or about 44 feet per second)^[1] and Peters testified that he saw Valter when he was about 80 to 120 feet away-which would mean Valter only had two to three seconds to adjust to avoid Peters. But Valter fails to account for several facts that undercut his argument. First, in his own telling, he was traveling at a speed less than 30 miles per hour, as he was decelerating from 30 miles per hour at the time of the collision. And second, according to Peters’s undisputed testimony, Valter managed to make three or four controlled turns after Peters saw him- demonstrating that the issue is more that Valter failed to notice Peters than that he lacked time to avoid Peters. At any rate, because Valter raised this argument for the first time in his reply brief, and without good cause, we find the argument forfeited. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)

In the end, none of Valter’s arguments-whether considered individually or collectively-potentially show Mammoth was grossly negligent. Again, we accept that snowmobiles (like most, if not all, snow equipment) pose some potential risk to skiers. We accept too that Mammoth could have done more to protect skiers from potential snowmobile collisions. But the question is not simply whether a reasonable person could find that Mammoth could have done more. Of course it could have. And no matter the precautions Mammoth implements, someone could always imagine some additional precaution or some additional study that could prove helpful. But that is not the relevant inquiry. It is instead whether a reasonable person could find that Mammoth’s conduct demonstrated “either a ‘” ‘want of even scant care'”‘ or ‘” ‘an extreme departure from the ordinary standard of conduct.'” “‘ (City of Santa Barbara, supra, 41 Cal.4th at p. 753.) And on this question, we find the answer is no as a matter of law. (See Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC, supra, 25 Cal.App.5th at pp. 363-365 [no gross negligence as a matter of law even though the snowcat operator failed to use a turn signal before turning]; Brown v. El Dorado Union High School Dist., supra, 76 Cal.App.5th at p. 1030 [no gross negligence as a matter of law even though the school district “could have done more”]; Decker v. City of Imperial Beach, supra, 209 Cal.App.3d at p. 361 [no gross negligence as a matter of law even though the city did not “pursue all possible options”].)

DISPOSITION

The judgment is affirmed. Mammoth is entitled to recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

We concur: DUARTE, Acting P. J., MESIWALA, J.

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Notes:

^[1] One mile is 5,280 feet. Someone traveling 30 miles per hour is traveling 158,400 feet per hour, 2,640 feet per minute, and 44 feet per second.

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Again, a bad response to the accident and poorly written release, if you can call it that, wiped out all defenses to the lawsuit.

Posted: August 21, 2023 | Author: Recreation Law | Filed under: Assumption of the Risk, California, Equine Activities (Horses, Donkeys, Mules) & Animals, Release (pre-injury contract not to sue), Youth Camps | Tags: assumption of the risk, Dressage, Equine, Foxfield Riding School, Gross negligence, horseback riding, Inherent Risk, Ordinary Negligence, Release, Sleepaway Camp, Waiver | Leave a comment

The way the plaintiff was treated post injury, you could see that litigation was coming.

Browne v. Foxfield Riding Sch. (Cal. App. 2023)

State: California; California Court of Appeals, Second District, Sixth Division

Plaintiff: Ava Browne, through her mother, Kelly Browne

Defendant: Foxfield Riding School and riding instructor Katelyn Puishys

Plaintiff Claims: ordinary and gross negligence

Defendant Defenses: Assumption of the Risk & Release

Holding: for the Plaintiff

Year: 2023

Summary

The plaintiff fell off her horse at a camp for jumping. She walked back to the cabin by herself and ended up needing emergency back surgery. The facts leading up to her injury were equally concerning. The court found multiple was to void the release and send this win back to court so the plaintiff could try again.

Facts

Ava was 12 years old when Kelly enrolled her in Foxfield’s summer sleepaway camp. Kelly completed and signed Ava’s application. In the application, Kelly indicated Ava had prior experience in horseback riding, including jumping crossrails. The application also stated that Ava was a “Level 3” rider at Mill Creek Riding School. A “Level 3” rider at Mill Creek would have been taught how to “jump horses, with multiple jumps,” and how to control a horse’s speed from walking slowly “all the way to canter.” Such a rider would also have been introduced to bigger and wider jumps.

Foxfield evaluated Ava on the first day of camp and placed her in the group with the least advanced riders. On the first and second days of instruction, Ava rode a horse named Polly in an enclosed dressage ring. Ava felt comfortable riding Polly.

On the third day of instruction, Foxfield assigned Ava a horse named Sonny, and Puishys taught the lesson. Ava rode Sonny in the dressage ring for about an hour and practiced some jumps. The group then went into the cross-country field. Ava completed her first jump with Sonny in the field, but fell off on her second jump, the “log jump.” Sonny bucked during the jump, and Ava was thrown off and landed on her back. Puishys continued with the riding lesson while Ava walked back to the cabins by herself.

Ava called Kelly from camp, and Kelly took her home. The next day, Ava had an X-ray done on her neck. She suffered a spinal injury requiring emergency surgery.

At trial, Ava testified she was nervous about riding Sonny. While riding in the dressage ring, she had difficulty controlling Sonny and told Puishys she needed instructions. Puishys “brushed it off.” Ava was also nervous about riding in the cross-country field and told Puishys she could not do it. Puishys told Ava to “face [her] fears.”

Another camper in Ava’s group testified that Ava was having problems controlling Sonny right before the log jump. She said that Sonny seemed to “want[] to go fast” and that he was “hard to control.”

The Brownes also presented deposition testimony of Foxfield’s owner, who testified that it was not typical for dressage ring riders to be taken into the cross-country field on their third day of instruction.

After the Brownes’ case-in-chief, Defendants moved for nonsuit based on the primary assumption of risk doctrine and Foxfield’s release of liability. The trial court granted the motion as to the issue of ordinary negligence, but denied it as to gross negligence. The court found that the signed release “was specific” and “very broad.” It found the release “encompassed every one of the activities that the plaintiff engaged in, including but not limited to the activity of cross[-]country field jumping at the time the injury occurred. [¶] So clearly, primary express assumption of the risk has been established as a matter of law. There’s nothing for the jury to resolve in that regard.”

The trial proceeded on the issue of gross negligence, and the jury returned a verdict in favor of the Defendants. After partially granting the Brownes’ motion to strike and tax costs, the trial court awarded nearly $97,000 in costs to Defendants.

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

Reviewing the facts, it is fairly obvious there are some factual issues that raise a concern before the law is applied to the case. The release or at least language to prevent litigation is part of the application, not a separate document or at least not set out to be identified as important information.

The instructor seems to be indifferent towards the students and fails totally after the plaintiff fell off her horse. “…Ava was thrown off and landed on her back. Puishys continued with the riding lesson while Ava walked back to the cabins by herself.”

Failure of the instructor to listen to the concerns of the student and absolute failure to follow up or to respond when the student falls is scary.

At the same time, there also seems to be a real failure to understand the skills of the plaintiff. Her mother on the application writes down one level of skills, the evaluation seems to show a different level of skill, and the actual skill of the plaintiff is less than the other evaluations.

The failure of the student to adequately identify her skills with what she showed and the failure of the instructor to understand the needs of the plaintiff combined to create a lawsuit.

Legal Analysis

The plaintiff argued the release was void because the release:

…clearly and unambiguously” release claims arising from Defendants’ negligent conduct, which increased the inherent risks of horseback riding. Alternatively, they argue the release was void for a lack of meeting of the minds.

The court went into a thorough review of what is required for the plaintiff to win a case, a prelude to the defendant losing the case.

To prevail on a cause of action for ordinary negligence, a plaintiff must prove the defendant owed them a legal duty, breached that duty, and proximately caused their injury. Although a defendant generally has a duty” ‘not to cause an unreasonable risk of harm to others [citation], some activities-and, specifically, many sports-are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.’ The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. Where the doctrine applies to a recreational activity, operators, instructors[,] and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” ([coach has duty to not increase risk of harm inherent in learning a sport].) A written release may exculpate a defendant by negating that duty.

The analysis of the law continued.

” ‘Contract principles apply when interpreting a release. ‘Where, as here, the interpretation of a release does not turn on the credibility of extrinsic evidence,” ‘” ‘construction of the instrument is a question of law . . . . It therefore follows that we must independently determine whether the release in this case negated the duty element of plaintiff[s’] cause of action.” ‘”

The scope of a release is determined by its express language. “The express terms of the release must be applicable to the particular negligence of the defendant, but every possible specific act of negligence . . . need not be spelled out in the agreement.” “‘ “It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.” ‘”

To be effective, a “release ‘must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.'”

In the above quotes, the appellate court is pointing out that the language in the release is going to be defective, voiding the release. However, the court is not done with why and how the release is going to be denied, the court then attacks the defense of assumption of the risk.

Thus, where the primary assumption of risk doctrine applies, the release must clearly and unambiguously exempt the defendant from liability from their own misconduct or negligent acts that increase the risks inherent in the activity. It must be sufficiently clear and explicit to” ‘set forth to an ordinary person untrained in the law that the intent and effect of the document is to release . . . claims for [their] own personal injuries and to indemnify the defendants from and against liability to others [that] might occur in the future.'” “If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter.”

Finally, the court gets to the point.

The release language fails. There is no language in the release, that in the court’s opinion gave notice to the plaintiff that they were giving up their right to sue. The release did not use the word negligence or any phrase or other words that indicated this was a release.

But nothing in the release mentions negligence, negligent acts, or misconduct by the Defendants. Nor does the release inform an ordinary person untrained in the law that it would apply to Defendants’ negligent conduct or conduct that increases the risks inherent in horseback riding.

This analysis cumulates in the analogy that the release, if 0ne exists or the assumption of the risk language, only prevents claims for the inherent risks of the activity.

Read in context, the waiver language appears in the same sentence as the releasee’s assumption of inherent risks. Thus, we interpret it to encompass only those injuries resulting from the inherent risks of riding or handling of horses, not injuries resulting from Defendants’ alleged negligent acts. It is not a waiver of all liability.

The inherent risks of any activity are assumed by anyone participating in the activity. A release is used to cover those risks that are created by the defendants or those risks that are increased by the actions of the defendants. The court stated the release, if it was one, had no value.

The risk of injury caused by the defendants’ negligence was not within the scope of the release because a release requires “a high degree of clarity and specificity . . . in order to find that it relieves a party from liability for its own negligence.”

The court concluded that the only risks the plaintiff assumed were those inherent in the activity.

The only risks the Brownes assumed was related to the inherent risks of horseback riding. They did not assume liability attributable to Defendants’ negligence or conduct that increased the inherent risks in horseback riding.

The plaintiff also argued the jury instructions for gross negligence were incorrect. The defendant won at trial on the claims of gross negligence.

“Gross negligence is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others. A person can be grossly negligent by acting or failing to act.”

However, the court found the instructions were clear. However, this did not really matter because since the underlying negligence claim was now back on the table, the new trial, gross negligence would be back as a claim.

The plaintiff also argued that because the defendant was not properly licensed and accredited, there could not be a meeting of the minds. Meaning the contract, the release was void, because there was important information concerning the contract that would have prevented the plaintiff from entering into the contract if known by the plaintiff. The court did not consider this argument because it held the release was void. However, this is an interesting argument that we will probably see in the future.

Brownes argue that was error because the evidence was probative to show the release was void for a lack of meeting of the minds-i.e., that Kelly would not have signed the release if she had known Foxfield was not properly licensed and accredited. We do not resolve this argument because even if the evidence was probative to the release being void, its exclusion was harmless given our conclusion that the release only applied to injuries resulting from the inherent risks of horseback riding and not to the negligence claims.

The defendants were awarded costs of nearly $97,000. That award was based on an offer of settlement that was rejected by the plaintiff. An offer of settlement is made by the defendant means the defendant says to the plaintiff we will give you $XX dollars and a judgment. If you accept this, you get the $XX immediately. If you reject the settlement, then any cost, we incur after the offer is rejected can be billed to you if you win the amount we offer or less.

Since the win was overturned by the court then the $97,000 judgement was also overturned.

There was a dissent in this opinion, which would have upheld the win for the defendant.

So Now What?

Again, reading this case, you can see the result coming way before the court ever states its decision because of the over-justification used in the decision. At the same time, there are some clear issues that helped the court reach its decision.

The release was poorly written and part of an application. The court did not even get into the issues of how the release was presented as part of an application. The language alone was enough to trigger the failure of the release to work.

The second clear issue is how the plaintiff was treated before and after the fall. Walking back to her cabin, alone, after being told to “face her fears” and brushed off her other concerns.

To read about other poorly written releases see:

Poorly written release in Massachusetts stop lawsuit for falling off a horse during riding lessons.

Poorly written release and allegation of duress push whitewater rafting ligation to Pennsylvania Appellate court.

Poorly written release failing to follow prior state Supreme Court decisions, employee statement, no padding and spinning hold send climbing wall gym back to trial in Connecticut.

Poorly written release on a sign-in sheet barely passes protecting Ohio defendant swimming area from suit.

Poorly written release and allegation of duress push whitewater rafting ligation to Pennsylvania Appellate court.

Poorly written release failing to follow prior state Supreme Court decisions, employee statement, no padding and spinning hold send climbing wall gym back to trial in Connecticut.

Poorly written release gave the plaintiffs the only chance they had to win

To read about other California cases see:

California decision imposes three specific requirements for a release to be valid. On requirement is a release must be understood by a person untrained in the law.

Most references in case law to assumption of the risk are to this California decision. The basis for understanding Assumption of the Risk is this decision based on an injured finger during a pickup football game.

This California decision looks at assumption of the risk as it applies to non-competitive long distance bicycle rides and also determines that assumption of the risk also overcomes a violation of a statute (negligence per se).

Under California law, increasing the risk or changing the inherent risk of a sport or race eliminates the defense of assumption of the risk. Defendant found grossly negligent in its course design.

To read about other equine (horse) cases see:

Equine laws stop suit against horse, outfitter still sued.

Summer camp being sued for injury from falling off horse wins lawsuit because the plaintiff failed to find an expert to prove their case.

One winner for equine liability statutes. Indiana statute stops litigation based on horse kick.

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.

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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Browne v. Foxfield Riding Sch. (Cal. App. 2023)

AVA BROWNE, a Minor, etc., et al., Plaintiffs and Appellants,
v.
FOXFIELD RIDING SCHOOL et al., Defendants and Respondents.

2d Civil Nos. B315743, B318304

California Court of Appeals, Second District, Sixth Division

August 14, 2023

NOT TO BE PUBLISHED

Superior Court County of Ventura Super. Ct. No. 56-2017-00499800-CU-PO-VTA Matthew P. Guasco, Judge

Dykema Gossett, Becky S. James and Lisa M. Burnett for Plaintiffs and Appellants.

Hawkins Parnell &Young, Elaine K. Fresch, Jerry C. Popovich and Melanie M. Smith for Defendants and Respondents.

BALTODANO, J.

Ava Browne, through her mother, Kelly Browne,^[1] sued Foxfield Riding School and riding instructor Katelyn Puishys (collectively, Defendants) for ordinary and gross negligence after she was injured during a horseback riding accident. The trial court granted Defendants’ motion for nonsuit as to ordinary negligence, and a jury found in favor of Defendants on the gross negligence claim. The court awarded costs to Defendants.

The Brownes appeal from the judgment and contend the trial court erred when it: (1) granted partial nonsuit as to ordinary negligence, (2) instructed the jury on gross negligence, (3) made certain evidentiary rulings, (4) made cumulative errors, and (5) awarded Defendants costs pursuant to Code of Civil Procedure^[2] section 998. As we explain below, the trial court erred in granting partial nonsuit on the ordinary negligence claim but did not err with respect to its evidentiary rulings and instructing the jury. We therefore affirm in part, reverse in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

In the application, Foxfield included the following release:

“I have sufficient knowledge of horses to understand their unpredictability and potentially dangerous character in general[,] and I understand that the use, handling[,] and riding of a horse ALWAYS involves risk of bodily injury to anyone who handles or rides horses, as well as the risk of damaging the property of others. I understand that any horse, irrespective of its training and usual past behavior and characteristics, may act or react unpredictably at times, based upon instinct or fright, which likewise is an inherent risk assumed by one who handles/rides horses. I expressly assume such risk and hereby waive any claims that I might have against Foxfield Riding School, its [t]eachers, [c]ounselors[,] and [t]rainers, on behalf of the above[-]mentioned camper or myself. I agree to pay all doctor or hospital fees if the child is injured while staying at Foxfield.”

Ava called Kelly from camp, and Kelly took her home. The next day, Ava had an X-ray done on her neck. She suffered a spinal injury requiring emergency surgery.

The Brownes sued Defendants for negligence/gross negligence. They alleged Defendants breached their duty of care by assigning Ava to ride Sonny, a horse “unfit and unsafe for riding by a beginning rider like Ava.” They also alleged Defendants failed to adequately instruct Ava before requiring her to ride in the cross-country field, which was beyond her abilities.

Phyllis Pipolo, Ava’s previous riding instructor, testified that Ava’s balance was “slightly ahead of the center of gravity” and “slightly out of the rhythm of the horse.” She questioned Ava’s stability and said Ava had issues with “a lack of control.”

The Brownes’ expert witness, Linda Rubio, inspected Foxfield’s facilities, observed Foxfield’s horses, interviewed the Brownes, reviewed deposition testimony, and watched videos of Ava’s riding. Rubio opined Ava was a beginning level rider and that Sonny was not a suitable horse because he was “an advanced horse.” She also opined the lesson plan on the day of the accident with Ava riding Sonny was not an appropriate plan for Ava because it “increase[d] the risk over and above those inherent [in] horseback riding.” Rubio said Ava should not have gone into the cross-country field because it was “beyond her scope of capability.” According to Rubio, Foxfield increased the risk of Ava falling off the horse by putting her in the field and having her attempt the log jump.

DISCUSSION

Partial nonsuit

The Brownes contend the trial court erred when it granted a partial nonsuit as to ordinary negligence. They contend the release did not “clearly and unambiguously” release claims arising from Defendants’ negligent conduct, which increased the inherent risks of horseback riding. Alternatively, they argue the release was void for a lack of meeting of the minds. We agree the trial court erred in interpreting the release and granting partial nonsuit. ” ‘A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in [their] favor.’ [Citation.] In determining the sufficiency of the evidence, the . . . court must not weigh the evidence or consider the credibility of the witnesses. Instead, it must interpret all of the evidence most favorably to the plaintiff s case and most strongly against the defendant, and must resolve all presumptions, inferences, conflicts, and doubts in favor of the plaintiff. If the plaintiffs claim is not supported by substantial evidence, then the defendant is entitled to a judgment as a matter of law, justifying the nonsuit.” (Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1541.) We review the trial court’s ruling on a nonsuit de novo. (Id. at pp. 1541-1542.)

To prevail on a cause of action for ordinary negligence, a plaintiff must prove the defendant owed them a legal duty, breached that duty, and proximately caused their injury. (Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1356 (Benedek).) Although a defendant generally has a duty” ‘not to cause an unreasonable risk of harm to others [citation], some activities-and, specifically, many sports-are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.’ [Citation.] The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. [Citations.] Where the doctrine applies to a recreational activity, operators, instructors[,] and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154, italics omitted; see also Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1005-1006 [coach has duty to not increase risk of harm inherent in learning a sport].) A written release may exculpate a defendant by negating that duty. (Benedek, at p. 1356.)

” ‘Contract principles apply when interpreting a release.'” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1483 (Cohen).) Where, as here, the interpretation of a release does not turn on the credibility of extrinsic evidence,” ‘” ‘construction of the instrument is a question of law . . . . It therefore follows that we must independently determine whether the release in this case negated the duty element of plaintiff[s’] cause[] of action.” ‘” (Ibid.)

The scope of a release is determined by its express language. (Benedek, supra, 104 Cal.App.4th at p. 1357.) “The express terms of the release must be applicable to the particular negligence of the defendant, but every possible specific act of negligence . . . need not be spelled out in the agreement.” (Ibid.)”‘ “It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.” ‘” (Ibid.)

To be effective, a “release ‘must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.'” (Benedek, supra, 104 Cal.App.4th at p. 1356.) Thus, where the primary assumption of risk doctrine applies, the release must clearly and unambiguously exempt the defendant from liability from their own misconduct or negligent acts that increase the risks inherent in the activity. (Cohen, supra, 159 Cal.App.4th at p. 1488.) It must be sufficiently clear and explicit to” ‘set forth to an ordinary person untrained in the law that the intent and effect of the document is to release . . . claims for [their] own personal injuries and to indemnify the defendants from and against liability to others [that] might occur in the future.’” (Ibid.) “If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter.” (Benedek, at p. 1357.)

The express language of the release here does not “clear[ly], unambiguous[ly], and explicit[ly]” relieve Defendants of liability resulting from their own negligence or for conduct that increased the risks inherent in horseback riding. (Benedek, supra, 104 Cal.App.4th at p. 1356.) The release informed Kelly that the “use, handling[,] and riding of a horse ALWAYS involves risk of bodily injury to anyone who handles or rides horses” and that “any horse . . . may act or react unpredictably at times, . . . which likewise is an inherent risk assumed by one who handles/rides horses.” By signing the release, Kelly “expressly assume[d] such risk and . . . waive[d] any claims that [she] might have against” Foxfield and its teachers. (Italics added.) But nothing in the release mentions negligence, negligent acts, or misconduct by the Defendants. Nor does the release inform an ordinary person untrained in the law that it would apply to Defendants’ negligent conduct or conduct that increases the risks inherent in horseback riding. (See Cohen, supra, 159 Cal.App.4th at pp. 1488-1489.) Rather, the only assumption of risk mentioned in the release pertains to the inherent risks of handling or riding a horse.

The release does state that Kelly “waive [s] any claims that [she] might have against [Defendants]” and that she “agree[s] to pay all doctor or hospital fees” if Ava was injured at Foxfield. But we do not read these statements in isolation. Instead, we must interpret the release as a whole and its language in context, avoiding a piecemeal, strict construction. (Civ. Code, § 1641; Segal v. Silberstein (2007) 156 Cal.App.4th 627, 633.) Read in context, the waiver language appears in the same sentence as the releasee’s assumption of inherent risks. Thus, we interpret it to encompass only those injuries resulting from the inherent risks of riding or handling of horses, not injuries resulting from Defendants’ alleged negligent acts.^[3] It is not a waiver of all liability. (Cf. Benedek, supra, 104 Cal.App.4th at p. 1358 [release of all liability where release clearly and explicitly stated that it applied to “liability for any personal injuries suffered while on [defendant’s] premises” (italics added)]; National &International Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 936 [release expressly provided that plaintiff was “not to sue [defendants] . . . from any and all claims and liability arising out of . . . ordinary negligence”].)

This case is like Cohen, supra, 159 Cal.App.4th 1476. There, the plaintiff was injured when she fell off a horse during a horseback ride. (Id. at p. 1480.) She then sued the defendants for negligence for allegedly increasing the risk inherent in trail riding when the guide accelerated the gait of the horses without warning, causing her to lose control and fall off her horse. (Ibid.) The defendants moved for summary judgment on the ground that the plaintiff signed a release. (Id. at p. 1481.) The release informed the plaintiff of the inherent risks of horseback riding, including that a horse will run or bolt uncontrollably without warning. By signing the release, she agreed to”‘ assume responsibility for the risks identified herein and those risks not specifically identified.'” (Id. at pp. 1485-1486, italics omitted.) The trial court granted summary judgment, finding the release clearly expressed an agreement not to hold the defendants liable for negligence. (Id. at p. 1482.)

The Court of Appeal reversed, concluding the trial court erred in interpreting the release. (Cohen, supra, 159 Cal.App.4th at p. 1487.) It explained that all the risks specifically described in the release were ones inherent in horseback riding. (Id. at p. 1486.) The risk of injury caused by the defendants’ negligence was not within the scope of the release because a release requires “a high degree of clarity and specificity . . . in order to find that it relieves a party from liability for its own negligence.” (Id. at p. 1488.) And” ‘[n]othing in the [r]elease clearly, unambiguously, and explicitly indicate[d] that it applie[d] to risks and dangers attributable to [the defendants’] negligence or that of an employee that may not be inherent in supervised recreational trail riding. Nor [did] the [r]elease indicate that it cover[ed] any and all injuries arising out of or connected with the use of [the defendants’] facilities.'” (Id. at p. 1489, italics omitted.) The same is true here.

Defendants rely on Eriksson v. Nunnink (2015) 233 Cal.App.4th 708 and Brown v. El Dorado Union High School Dist. (2022) 76 Cal.App.5th 1003 (El Dorado), two cases where a release in the recreational sports context was found to relieve the defendants from liability for their negligent conduct. But these cases are distinguishable. In Eriksson, the release between a plaintiff (a horseback rider) and the defendant (trainer) expressly stated that the “[r]ider agree[d] to hold [the trainer] . . . completely harmless and not liable and release [her] from all liability whatsoever, and AGREE[D] NOT TO SUE [her] on account of or in connection with any claims, causes of action, injuries, damages, costs[,] or expenses arising out of [the rider’s] use of [the trainer’s] services . . ., including[,] without limitation, those based on death . . . [or] bodily injury, . . . except if the damages [were] caused by the direct, willful[,] and wanton negligence of the [t]rainer.” (Ericksson, at p. 720.) The release also stated that the “[r]ider agree[d] to indemnify [the trainer] against, and hold her harmless from, any and all claims, causes of action, damages, judgments, costs[,] or expenses . . . [that] in any way [arose] from [the rider’s] use of [the trainer’s] services.” (Ibid.) The Eriksson court held that this release “plainly encompasse[d] liability for future negligence as well as any previously committed torts,” with the only exception to damages caused by gross negligence. (Id. at pp. 722-723.)

Similarly, in El Dorado, the language of the release between a student athlete and a school district expressly absolved the school district and its employees “from any and all claims of liability arising out of their negligence, or any other act or omission [that] cause[d] . . . illness, injury, death[,] or damages of any nature in any way connected with the student’s participation in the school[-]related activity.” (El Dorado, supra, 76 Cal.App.5th at p. 1010.) The court held that such language provided an “unequivocal[] agree[ment] to assume the risk of injuries caused by the negligent acts of the [d]istrict employees . . . while [the student] played football.” (Id. at p. 1025.)

Unlike Ericksson and El Dorado, Foxfield’s written release did not clearly and expressly apply to Defendants’ negligent conduct, nor did it waive all liability. The only risks the Brownes assumed was related to the inherent risks of horseback riding. They did not assume liability attributable to Defendants’ negligence or conduct that increased the inherent risks in horseback riding. Nonsuit should have been denied.^[4]

At oral argument Defendants argued the trial court’s grant of nonsuit on the ordinary negligence claim was harmless. Because the jury found in their favor on the gross negligence claim, Defendants posit, the jury necessarily rejected the Brownes’ theory that Defendants “unreasonably increased the risk to Ava over and above those already inherent in horseback riding.” But the jury was only asked to render a verdict on gross negligence, which requires” ‘” ‘the want of even scant care or an extreme departure from the ordinary standard of conduct.'” ‘” (County of San Diego v. Superior Court (2015) 242 Cal.App.4th 460, 474.) We do not know whether the jury would have found for the Brownes on a claim that only required finding that Defendants breached a legal duty that proximately caused Ava’s injuries. We thus cannot say that the grant of nonsuit was harmless.

Jury instruction for gross negligence

The Brownes next contend the trial court prejudicially erred when it denied their proposed modification to CACI 425. We disagree.

CACI 425 states: “Gross negligence is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others. [¶] A person can be grossly negligent by acting or failing to act.” The Brownes requested a modification to specify that” ‘if a defendant acts or fails to act in a manner which [sic] substantially or unreasonably increases the risk of danger or harm inherent in the sporting activity, such conduct constitutes gross negligence if you find that said defendant’s act or failure to act demonstrates the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or others.'” The trial court denied the proposed modification and instructed the jury with CACI 425, but allowed the Brownes to argue their expanded definition of gross negligence during closing arguments.

“A party is entitled upon request to correct, nonargumentative instructions on every theory of the case . . . [that] is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party’s theory to the particular case.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) Where a civil jury instruction error is alleged, reversal is only appropriate if after examination of the entire cause, the” ‘error complained of has resulted in a miscarriage of justice.’ [Citation.]” (Id. at p. 580.) To assess prejudicial instructional error, we evaluate: “(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.” (Id. at pp. 580-581.)

Here, even if the trial court erred in denying the modified instruction, the Brownes do not show they were prejudiced. During closing argument, the Brownes argued that Defendants were grossly negligent when they “unreasonably increased the risk to Ava over and above those already inherent in horseback riding.” The Brownes presented evidence to support this theory and summarized the evidence during closing argument. They also argued the jury could find Defendants grossly negligent if the evidence proved Defendants’ conduct, including the failure to act, “was a substantial factor in causing harm to Ava” irrespective of the release.

The trial court also clarified the gross negligence standard by instructing the jury that an “act or omission by the defendants [that] substantially or unreasonably increases the risk inherent in horseback riding and jumping can be gross negligence if it meets the definition of gross negligence. That is, it has to have amounted to . . . the want of any care or an extreme departure from conduct that would otherwise be reasonable.” The Brownes point to no other instructions that would have affected the jury’s understanding of gross negligence. Furthermore, there was no indication by the jury that it was confused or misled. (Soule, supra, 8 Cal.4th at pp. 580-581.) Thus, the court did not prejudicially err in denying the requested modification.

Evidentiary errors

Next, the Brownes argue the trial court erred when it: (1) excluded evidence regarding Foxfield’s lack of proper licensure and accreditation, and (2) did not permit Pipolo to testify as an expert witness. We review these rulings for abuse of discretion (Pannu v. Land Rover N. Am., Inc. (2011) 191 Cal.App.4th 1298, 1317), and reject the Brownes’ arguments.

1. Licensure and accreditation

Defendants moved in limine to exclude evidence regarding Foxfield’s lack of proper licensure and accreditation as a sleepaway camp because it was more prejudicial than probative. The trial court granted the motion. The Brownes argue that was error because the evidence was probative to show the release was void for a lack of meeting of the minds-i.e., that Kelly would not have signed the release if she had known Foxfield was not properly licensed and accredited. We do not resolve this argument because even if the evidence was probative to the release being void, its exclusion was harmless given our conclusion that the release only applied to injuries resulting from the inherent risks of horseback riding and not to the negligence claims.

2. Pipolo’s testimony

At trial, Defendants objected to Pipolo’s testimony that Ava was a “beginner” rider because Pipolo was not an expert and could not opine on Ava’s skill level. The court sustained the objection but allowed Pipolo to testify about her observations of Ava’s riding.

There was no abuse of discretion. Pipolo was a lay witness and could only offer opinion testimony if it was “[r]ationally based on her perception” and “[h]elpful to a clear understanding of [her] testimony.” (Evid. Code, § 800.) In contrast, an expert could properly testify to an opinion related to “a subject that is sufficiently beyond common experience” and based on their special knowledge, skill, experience, training, or education. (Evid. Code, § 801.) An assessment of a horse rider’s skill level is related to a subject matter beyond common experience and thus required an expert opinion. (See, e.g., Giardino v. Brown (2002) 98 Cal.App.4th 820, 826.)

Any error in disallowing Pipolo to opine that Ava was a “beginner” rider also would have been harmless. Pipolo was permitted to describe her observations of Ava’s riding abilities, including observations on Ava’s issues with stability and control. Rubio also testified that Ava was a beginning rider. And there was no dispute Ava was classified in the lowest skill group at Foxfield. Excluding Pipolo’s opinion thus did not prejudice the Brownes.

Cumulative error

The Brownes argue cumulative error. Because we have determined the trial court erred in granting nonsuit on the ordinary negligence claim, this matter must be reversed. To the extent the Brownes argue the remaining issues resulted in cumulative error, our rejection of each of them forecloses their claim. (People v. Avila (2006) 38 Cal.4th 491, 608.)

Section 998 costs award

Lastly, the Brownes contend the costs awarded to Defendants pursuant to section 998 should be vacated. Section 998 provides that if “an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover [their] postoffer costs and shall pay the defendant’s costs from the time of the offer.” (§ 998, subd. (c)(1).) Because we reverse and remand the matter on the issue of ordinary negligence, the Brownes can potentially obtain a more favorable judgment or award on remand. We accordingly vacate the costs award.

DISPOSITION

The judgment is reversed with respect to the nonsuit on the ordinary negligence claim, and the section 998 costs award is vacated. The matter is remanded for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed. The parties shall bear their own costs on appeal.

I concur: GILBERT, P. J.

YEGAN, J., Dissenting:

I respectfully dissent. The majority opinion erases mother’s name from the waiver and release document. We should not do that. “The purpose of the law of contracts is to protect the reasonable expectations of the parties.” (Ben-Zvi v. Edmar Co. (1995) 40 Cal.App.4th 468, 475.) Mother knew and knows that riding a horse is dangerous and that people can be seriously injured when riding a horse. Mother agreed to accept this risk for her daughter. To be sure, she did not actually expect that daughter would be hurt but she knew, or should have known, that this was a foreseeable risk. The riding school had a reasonable expectation that it would not be the subject of a lawsuit based on a claim of negligence. These reasonable expectations should account for something.

The trial court expressly ruled that the waiver and release document was “very specific” and “very broad.” I agree with the trial court. The activity that led to minor’s harm was riding a horse and jumping a barrier in a country field. Minor was not a first time rider. She had ridden and jumped horses at another riding facility. She indicated on her application that she had experience at horse jumping. How could riding and jumping a horse not be covered by the release? Just what is the effect of mother’s signature on the release directed to? And the last line of the waiver and release document that mother signed could not be more explicit: “I agree to pay all doctor or hospital fees if [my] child is injured while staying at Foxfield [riding academy].” This last sentence is in no way ambiguous and a reasonable person can only read it as a release of any obligation of riding school to pay these fees.

The nature of incremental and progressive teaching to achieve proficiency in sporting activities, is pretty basic. A professional surfing instructor does not start teaching on a 35-foot-wave at Waimea Bay. A professional snow ski instructor does not start teaching at Hangman’s Hollow in Mammoth Mountain, one of the steepest and narrowest ski runs in the United States. Incremental teaching moves in progressive steps. It involves the professional judgment of the particular instructor. When a mishap occurs, it is always possible to assert the instructor has made a mistake and should be liable for the choices made. But this is the nature of incremental teaching. The teaching cycle involves “pushing” the student to the goal of the lesson. “Learning any sport inevitably involves attempting new skills. A coach or instructor will often urge the student to go beyond what the student has already mastered; that is the nature of (inherent in) sports instruction.” (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1368-1369; see also Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428, 14361437.) There is an established progression to the goal of proficiency. That is what happened here. The instructor did not take the student to the equivalent of Waimea Bay or Hangman’s Hollow. She took minor on a low-level jump course in the country. This was progressive and incremental teaching.

A waiver and release document can always be more specific and the majority could write such a document. So could I. This is not the test on appeal. The commonsense rationale of the trial court should not be tested by a waiver theoretically drafted by Professors Williston or Corbin. (See Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755; see also National &International Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3rd 934, 937-938.) The fair import of the document is that it releases riding school from the theoretical negligence of the instrutor who picked the horse and who made the decision to jump in the field. It is always possible for a plaintiff to characterize such decisions as “increasing the risk of harm.” This is at variance to the concept of incremental and progressive teaching.

The majority opinion relies heavily on Presiding Justice Kline’s opinion in Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476. There is a comprehensive and compelling dissent written by Justice Haerle. He has adequately answered the present majority opinion’s analysis.

I have deep concern for the injured minor. But that is no reason to void the release and waiver her mother signed. A strong case can be made that no negligence was involved here at all. But in any event, mother agreed to assume the risks involved in the sport of horse jumping. As the waiver and release document says: “[h]andling and riding of a horse ALWAYS involves risk of bodily injury ….”

———

Notes:

^[1] We refer to the Brownes by their first names to avoid confusion. No disrespect is intended.

^[2] Further unspecified statutory references are to the Code of Civil Procedure.

^[3] Even if the waiver language were ambiguous, we would construe such ambiguities against Foxfield, the drafter of the release. (Benedek, supra, 104 Cal.App.4th at p. 1357; Civ. Code § 1654; see also Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 738 [“release forms are to be strictly construed against the defendant”].)

^[4] Because we conclude the trial court erred in interpreting the release, we need not address the alternative argument that the release was void. And because we do not resolve that issue, we deny the Brownes’ request for judicial notice as irrelevant to our decision. (State Comp. Ins. Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 442.)

———

TV “fitness race” creates “want to be’s” and “look a likes” and a lawsuit.

Posted: August 14, 2023 | Author: Recreation Law | Filed under: Assumption of the Risk, Health Club, Indoor Recreation Center, Pennsylvania | Tags: assumption of the risk, Falling, fitness race, Hang Boards, Inherent Risk, Ninja, Ninja race, No Duty Rule, Urban Air, Warrior Course | Leave a comment

The “No Duty Rule” is another way of saying the plaintiff failed to prove the Defendant owed them a duty. In this lawsuit, there was no duty because the risk that caused the injury was inherent to the activity.

Barrett v. New Am. Adventures, LLC (W.D. Pa. 2023)

State: Pennsylvania, United States District Court, W.D. Pennsylvania, Pittsburgh

Plaintiff: Courtney Barrett

Defendant: New American Adventures, LLC, a Pennsylvania limited liability company; One American Way, LLC, a Pennsylvania limited liability company, and; and UATP Management, LLC, a Texas limited liability company

Plaintiff Claims: negligence

Defendant Defenses: no duty

Holding: For the Defendants

Year: 2023

Summary

The risk the plaintiff encountered was inherent to the activity, therefore the defendant did not owe a duty to the plaintiff. No duty, then there is no negligence and no lawsuit.

Facts

This is a personal injury case brought by Plaintiff for injuries she received on November 23, 2018, while participating on an obstacle course called the Warrior Course at Urban Air Trampoline and Adventure Park in Cranberry Township, Pennsylvania (“Urban Air”). Urban Air is a franchise trampoline and adventure park owned and operated by Defendant New American Adventures, LLC (“NAA”). Defendant NAA is the franchisee and Defendant UATP Management Inc. (“UATP”) is the franchisor. Defendant NAA leases the premises from Defendant One American Way, LLC (“One American”) which was a landlord out of possession of the premises at the time of the incident.

At the time of the incident, Plaintiff was 34 years old and a resident of Mammoth Lakes, California with her partner, Christopher Hodges, and their two children. Plaintiff was an accomplished athlete in high school in track and field performing the long jump, triple jump, and 100 and 200 meter sprint races. She was also a cheerleader. She attended a dance and gymnastics school and was heavily involved in dance gymnastics, cheering, and fitness. Following high school, Plaintiff participated in competitive cheerleading for the Pittsburgh Storm for two years. She also competed in the Arnold Schwarzenegger Fitness Expo in Columbus, Ohio where she won third place. Additionally, Plaintiff has skied since the age of four locally at Seven Springs Mountain Resort and Hidden Valley Resort and continued to do so in California, including working at the Mammoth Ski Resort. Prior to attending Urban Air, Plaintiff had been to other trampoline and amusement parks with Mr. Hodges and their children.

Plaintiff was visiting her parents for the Thanksgiving Holiday and went to Urban Air with Mr. Hodges, their two children, her sister Alexandra Barrett, and her parents on November 23, 2018. Plaintiff testified that she understood the concept if a person is engaged in a warrior course like adventure where you are hanging, a person can fall wrong and injure themself. She further understood that it was possible that she might injure herself, including breaking a bone, when participating in activities at an adventure park. Plaintiff would rate her skill level as medium to high given her experience as a former athlete, gymnast, and track and field athlete. Before she decided to participate in the Warrior Course, she had in mind that she had enough skill and experience to complete the course.

Upon approaching the Warrior Course, Plaintiff went to the expert lane with two blue grip hang boards which had a gap in between when the incident occurred. According to Plaintiff, you had to shimmy your way hanging on to the end of the plank and propel your body to grab the next one. She acknowledged there were balls in the ball pit. Plaintiff knew when she started the Warrior Course that there was a possibility she would not finish and that she could slip and not catch the second plank and that if she missed, she would fall into the area below. As Plaintiff went to swing from the first board to the second board, she either slipped off (one or both hands) or she remembered thinking “oh, I’m just going to fall into the ball pit below.” Plaintiff went through the balls and landed on the surface below injuring her knee.

The defendant filed a motion for summary judgment claiming

1) Plaintiff’s claims of negligence for injury she suffered falling off the Warrior Course attraction at Urban Air are barred by the “no-duty” rule; 2) Defendant One American was a landlord out of possession of the premises; and 3) The record is devoid of facts establishing Defendants’ conduct was reckless such that Plaintiff is not entitled to punitive damages.

This is the decision concerning that motion.

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

Negligence requires the plaintiff proving four requirements. The first is the defendant owed the plaintiff a duty. Proving this has evolved in some states to the “No Duty Rule.” There is no duty owed to the plaintiff. Therefore, the plaintiff can’t sue. In Pennsylvania and in this case, the defendant proved there was no duty owed, the No Duty Rule was applicable, and the case was dismissed.

Under Pennsylvania law, there are four states, like all states, to prove negligence:

To bring a claim of negligence under Pennsylvania law, a plaintiff must show that: (1) the defendant had a duty or obligation recognized by law; (2) the defendant breached that duty; (3) a connection exists between the breach and the duty; and (4) the breach created actual loss or damage.

In this case, the defendant argued that they had no duty to protect the plaintiff from harm because the risk the plaintiff undertook was an inherent risk of the sport or activity. “Specifically, Defendants submit that they had no duty to protect Plaintiff from the inherent risk of falling from the Warrior Course and, thus, summary judgment is warranted.”

The “no-duty” rule provides that “an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity. “Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant…and there can be no recovery based on allegations of negligence. Pennsylvania applies the “no-duty” rule to sports, recreation, and places of amusement.

The court then made a statement that some courts seem to forget. “To that end, the severity of the injury, whether minor or extreme, has no bearing on whether the “no-duty” rule applies.”

The court then went on to state the two-part test under Pennsylvania law to determine if the no duty rule applies.

1) whether the user was engaged in the amusement activity at the time of the injury; and

2) whether the injury arose out of a risk inherent in the amusement activity.

When both questions are answered in the affirmative, summary judgment is warranted. “If those risks are not inherent, traditional principles of negligence apply and [the Court] must determine what duty,” if any, a defendant owes to a plaintiff, whether the defendant breached that duty, and whether the breach caused the plaintiff’s injuries.

The first part of the test was easy. The plaintiff was at the defendant’s location to have fun.

Here, there is no question that at the time of the injury Plaintiff was engaged in the Warrior Course attraction at Urban Air. Specifically, Plaintiff testified that she was on the Warrior Course and in the process of swinging from the first plank or board to the second one when she slipped off and fell into the ball pit below injuring her knee. Therefore, the first question is answered in the affirmative.

To answer the second part of the two-part test the court defined “inherent” as applied to the risk the plaintiff encountered.

A risk that is “common, frequent, and expected” is an inherent risk. Though a plaintiff’s subjective awareness of a specific inherent risk is not required

Based on the plaintiff’s testimony during depositions, the court determined that falling was an inherent risk of hanging above the ground on a board.

She testified that (based on her experiences involving other sports and recreational activities, as well as her participation in other adventure parks) she knew there was a possibility that while on the Warrior Course she could slip, lose her grip, and/or not catch the second plank. She also testified that she understood that if that happened, she would fall to the area below that contained the balls and could be injured.

The court went on to reinforce its decision by pulling information from the Plaintiff’s expert witness who also surmised that when hanging above the ground by your hands you could fall.

Additionally, Plaintiff’s expert stated that “[i]t is not unreasonable to expect that users will lose their grip and either unintentionally or intentionally fall.” He further stated that a fall from the Warrior Course “would not be unexpected.” Id. at p. 13. In fact, Plaintiff acknowledges that participating in an obstacle course like the Warrior Course presents inherent risk of injury from a fall.

It is pretty bad, when your expert report is used against you. However, it is also pretty obvious that falling is a risk whenever you are above the ground.

The plaintiff then argued that the risk at issue had a narrower focus. That the risk was not falling, but landing. In this case, the balls used to land on were not sufficient to protect the plaintiff from injury. However, the court rejected this argument because the risk was falling, the result was landing. The result is not part of the definition of the risk.

Pennsylvania courts “‘have rejected attempts by plaintiffs to define the injury producing risks in a very specific and narrow manner. Instead, they look to the “‘general risk’ that gave rise to the accident.”

The plaintiff then went further and argued that this was not an inherent risk because it was special. Plaintiff argued the case law where the injury was produced by a risk that other courts had determined was not inherent to the activity. In those cases, the injury was rare, not planned for and could not be defined as something that would happen every time the risk was encountered.

These cases, however, just as with cases that have held certain risks are inherent to a particular activity, turn on the relevant facts and the activity in question in determining if a risk is inherent. None, however, involves a Warrior Course type of attraction. Thus, the Court turns to the facts and activity in this case.

The court summed up its analysis in this way.

The final argument of the plaintiff was the No Duty Rule should not apply because the defendants deviated from industry customs or standards. Instead of using balls, they should have used foam in the pit. However, again, the court looked at the inherent risk. The inherent risk is falling when hanging from your arms above the ground. The result is not part of the risk.

Plaintiff suggests that Defendants should have used foam instead of plastic balls to minimize the risk and/or to ensure the balls in the pit were always level and that Defendants should have advised her not to land with a straight leg. These arguments go to negligence principles, not as to salient question of whether the risk was inherent. The question of inherent risk must be determined first. “[W]hen inherent risks are involved, negligence principles are irrelevant,” the inquiry is over, and summary judgment is proper. Therefore, Plaintiff’s arguments in this regard, and the evidence submitted to support them, fail to raise a genuine issue of material fact. Thus, the Court finds summary judgment in favor of Defendants is warranted.

So Now What?

I have continuously reminded people that the first step in determining if anyone has a legitimate lawsuit against is, did you owe the plaintiff a duty and did you breach the duty. People believe that just because they are injured, that someone owes them money. I tell them that before I can turn a claim over to the insurance company, I have to know what we, the defendant did wrong. I ask, “What did we do wrong.” Rarely do I get an answer, and if I do, I explain that we did not do what they said we did. Most time, though, the injured person cannot define what we did wrong.

If we did not do something wrong, then we probably did not have a duty to the injured person and thus are not liable.

In Pennsylvania, that has evolved into a rule, the No Duty Rule. There cannot be a claim for negligence unless all four of the requirements to prove negligence have been met. The first is, did the defendant owe a duty to the plaintiff.

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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Barrett v. New Am. Adventures, LLC (W.D. Pa. 2023)

Posted: August 14, 2023 | Author: Recreation Law | Filed under: Assumption of the Risk, Health Club, Indoor Recreation Center, Pennsylvania | Tags: assumption of the risk, duty, Inherent Risk Urban Air, Negligence, No Duty Rule, Warrior Race | Leave a comment

Barrett v. New Am. Adventures, LLC (W.D. Pa. 2023)

COURTNEY BARRETT, AN ADULT INDIVIDUAL; Plaintiff,
v.
NEW AMERICAN ADVENTURES, LLC, A PENNSYLVANIA LIMITED LIABILITY COMPANY; ONE AMERICAN WAY, LLC, A PENNSYLVANIA LIMITED LIABILITY COMPANY, AND; AND UATP MANAGEMENT, LLC, A TEXAS LIMITED LIABILITY COMPANY; Defendants,

No. 2:20-CV-01813-CRE

United States District Court, W.D. Pennsylvania, Pittsburgh

June 30, 2023

MEMORANDUM OPINION
^[1]

CYNTHIA REED EDDY, UNITED STATES MAGISTRATE JUDGE.

I. INTRODUCTION

This civil action was initiated by Plaintiff alleging one count of negligence against each of the three Defendants arising out of an injury from a fall by Plaintiff at Urban Air Trampoline and Adventure Park on November 23, 2018. This Court has diversity jurisdiction pursuant to 28 U.S.C. §1332.

Presently before the Court is Plaintiff’s Motion for Partial Summary Judgment (ECF No. 45) and Defendants’ Motion for Summary Judgment (ECF No. 47). Both Motions are brought pursuant to Federal Rule of Civil Procedure 56. The Motions are fully briefed and ripe for disposition.

For the reasons that follow, Defendants’ Motion for Summary Judgment (ECF No. 47) is granted and Plaintiff’s Motion for Partial Summary Judgment (ECF No. 45) is denied as moot.

II. STANDARD OF REVIEW

a. Federal Rule of Civil Procedure 56

The standard for assessing a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure is well-settled. A court should grant summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. “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). Furthermore, “summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 250.

On a motion for summary judgment, the facts and the inferences to be drawn therefrom should be viewed in the light most favorable to the non-moving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Hudson v. Proctor & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (citations omitted). When reviewing cross-motions for summary judgment, the court is to view the evidence in the light most favorable to the nonmoving party with respect to each motion. F.R.C.P. 56. It is not the court’s role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). “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, 477 U.S at 247-48. An issue is “genuine” if a reasonable jury could possibly hold in the nonmovant’s favor with respect to that issue. Id. “Where the record taken as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial’.” Matsushita, 475 U.S. at 587; Huston, 568 F.3d at 104.

A plaintiff may not, however, rely solely on his complaint to defeat a summary judgment motion. See, e.g., Anderson, 477 U.S. at 256 (“Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.”). Allegations made without any evidentiary support may be disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000).

III. BACKGROUND^[2]

On November 20, 2020, Plaintiff filed a Complaint in this Court based on diversity. (ECF No. 1). Thereafter Plaintiff filed an Amended Complaint. (ECF No. 11). Count I of the Amended Complaint is a claim of negligence against Defendant NAA. Id. Count II asserts a claim of negligence against Defendant One American. Id. Count III is a claim of negligence against Defendant UATP. Id.

IV. DISCUSSION

A. Defendants’ Motion for Summary Judgment (ECF No. 47)

Defendants seek summary judgment on three grounds: 1) Plaintiff’s claims of negligence for injury she suffered falling off the Warrior Course attraction at Urban Air are barred by the “no-duty” rule; 2) Defendant One American was a landlord out of possession of the premises; and 3) The record is devoid of facts establishing Defendants’ conduct was reckless such that Plaintiff is not entitled to punitive damages. (ECF No. 47). As a preliminary matter regarding to the second ground, Defendants submit that American Way owes no duty to Plaintiff as a landlord out of possession of the premises. (ECF No. 49, pp. 14-17). Thus, Defendants contend that summary judgment as to Count II is warranted. Id. In Response, Plaintiff “acknowledges that there is insufficient evidence to establish liability on the part of Defendant One American and that summary judgment is appropriate.” (ECF No. 55, p. 2). Plaintiff further admits that Defendant One American is not liable as a matter of law. (ECF No. 57, p. 12, ¶76). Based on the same, the Court finds summary judgment as to Defendant One American is warranted. Accordingly, Defendants’ Motion for Summary Judgment (ECF No. 47) is granted as to Defendant One American and Count II is dismissed with prejudice.

The Court now turns to Defendants’ main argument that Plaintiff’s claims of negligence are barred by the “no-duty” rule. (ECF No. 49). To bring a claim of negligence under Pennsylvania law, a plaintiff must show that: (1) the defendant had a duty or obligation recognized by law; (2) the defendant breached that duty; (3) a connection exists between the breach and the duty; and (4) the breach created actual loss or damage. Krentz v. Consol. Rail Corp., 910 A.2d 20, 27-28 (Pa. 2006). Defendants assert that Plaintiff cannot show the first element – a legal duty recognized by law. (ECF No. 49). Specifically, Defendants submit that they had no duty to protect Plaintiff from the inherent risk of falling from the Warrior Course and, thus, summary judgment is warranted. (ECF No. 49).

The “no-duty” rule provides that “an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity. Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1186 (Pa. 2010), citing Restatement (Second) of Torts §496A, CMTT c, 2 (where plaintiff has entered voluntarily into some relation with defendant which he knows to involve the risk, he is regarded as tacitly or impliedly agreeing to relieve defendant of responsibility, and to take his own chances); Hughes v. Seven Springs Farm, Inc., 762 A.2d 339, 343-44 (citing Jones v. Three Rivers Mgmt. Corp., 394 A.2d 546 (Pa. 1978). “Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant…and there can be no recovery based on allegations of negligence. Chepkevich. 2 A.3d at 1186, citing Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000). Pennsylvania applies the “no-duty” rule to sports, recreation, and places of amusement. Chepkevich, 2 A.3d at 1186.

To that end, the severity of the injury, whether minor or extreme, has no bearing on whether the “no-duty” rule applies. Richmond v. Wild River Waterpark, Inc., No. 1972 MDA 2013, 2014 WL 10789957, at *1 (Pa. Super. Ct. Oct. 6, 2014). Rather, there is a two-part inquiry to determine if the “no-duty” rule applies:

1) whether the user was engaged in the amusement activity at the time of the injury; and

2) whether the injury arose out of a risk inherent in the amusement activity.

Chepkevich, 2 A.3d at 1186. When both questions are answered in the affirmative, summary judgment is warranted. Id. “If those risks are not inherent, traditional principles of negligence apply and [the Court] must determine what duty,” if any, a defendant owes to a plaintiff, whether the defendant breached that duty, and whether the breach caused the plaintiff’s injuries. Quan Vu v. Ski Liberty Operating Corp., 295 F.Supp.3d 503, 507 (M.D. Pa. 2018), aff’d sub nom. Vu v. Ski Liberty Operating Corp., 763 Fed.Appx. 178 (3d Cir. 2019).

Here, there is no question that at the time of the injury Plaintiff was engaged in the Warrior Course attraction at Urban Air. (ECF No. 45-2, p. 48). Specifically, Plaintiff testified that she was on the Warrior Course and in the process of swinging from the first plank or board to the second one when she slipped off and fell into the ball pit below injuring her knee. (ECF No. 45-2, p. 57). Therefore, the first question is answered in the affirmative.

As to the second inquiry, the key question here is whether Plaintiff’s injury arose out of a risk inherent of the Warrior Course. A risk that is “common, frequent, and expected” is an inherent risk. Chepkevich, 2 A.3d at 1187. Though a plaintiff’s subjective awareness of a specific inherent risk is not required, Quan Vu, 295 F.Supp.3d at 509, in this case, Plaintiff’s own testimony is telling. She testified that (based on her experiences involving other sports and recreational activities, as well as her participation in other adventure parks) she knew there was a possibility that while on the Warrior Course she could slip, lose her grip, and/or not catch the second plank. (ECF No. 45-2, p. 67). She also testified that she understood that if that happened, she would fall to the area below that contained the balls and could be injured. Id. at 67-68.

Additionally, Plaintiff’s expert stated that “[i]t is not unreasonable to expect that users will lose their grip and either unintentionally or intentionally fall.” (ECF No. 48-10, p. 12). He further stated that a fall from the Warrior Course “would not be unexpected.” Id. at p. 13. In fact, Plaintiff acknowledges that participating in an obstacle course like the Warrior Course presents inherent risk of injury from a fall. (ECF No. 56, p. 9, 14-16). Courts should adopt “‘a practical and logical interpretation of what risks are inherent to the sport….'” Vu, 763 Fed.Appx. at 181, quoting, Chepkevich., 2 A.3d at 1187-88. Applying the same, the Court finds that falling from the planks or boards on the Warrior Course into the ball pit below and any subsequent injury arising therefrom is an obvious danger when engaging in the Warrior Course attraction and is an inherent risk.

Plaintiff submits, however, that “[f]alling into a shallow pit filled with plastic balls is not an ‘inherent’ risk” suggesting that it is not necessary to the fundamental nature of participating in the Warrior Course. Id. at 14. This Court is unpersuaded by the framing of the issue in this manner. Pennsylvania courts “‘have rejected attempts by plaintiffs to define the injury producing risks in a very specific and narrow manner.'” Quan Vu, 295 F.Supp.3d at 508, quoting Cole v. Camelback Mountain Ski Resort, No. 16-cv-1959, 2017 WL 4621786 (M.D. Pa. Oct. 16, 2017). Instead, they look to the “‘general risk’ that gave rise to the accident.” Id. citing Chepkevich, 2 A.3d at 1186.

Moreover, in support of her position, Plaintiff sting cites cases where certain risks were held not to be inherent to a particular activity. Id. at p. 15, citing Telega v. Security Bureau, Inc., 719 A.2d 372 (Pa. Super. Ct. 1998)(involved a spectator who caught a football and was subsequently attacked by fans); Jones v. Three Rivers Management Corp., 394 A.2d 546 (Pa. 1978)(spectator of baseball game hit by a batted ball in an interior walkway); Sheerer v. W.G. Wade Shows, Inc., No. 11-cv-1496, 2012 WL 5905039 (M.D. Pa. Nov. 26, 2012)(a child’s arm injured when it was caught between the cart he was in and the wall inside the trailer that housed the ride); Perez v. Great Wolf Lodge, 200 F.Supp.3d 471 (M.D. Pa. 2016)(weight limit of participants on a waterslide attraction exceeded weight limitation and subsequently one participant was somehow separated from the tube resulting in injuries). These cases, however, just as with cases that have held certain risks are inherent to a particular activity,^[3] turn on the relevant facts and the activity in question in determining if a risk is inherent. None, however, involves a Warrior Course type of attraction. Thus, the Court turns to the facts and activity in this case.

As discussed herein above, there is no doubt that the risk of injury from falling into the ball pit while participating in the Warrior Course is “a common, frequent, and expected” part of engaging in this activity. It is part and parcel to the attraction. As Plaintiff admits, “[t]here can be little doubt that participating in an obstacle court contains a risk of injury, particularly from a fall.” (ECF No. 56, at p. 16). In fact, a fall into the ball pit from this type of obstacle course is more likely than not. (ECF No. 48-10, p. 13). It is a quintessential risk of the Warrior Course. To that end, the Court finds the risk of falling from the planks is an “inherent” risk and a subsequent injury cannot be removed from the Warrior Course without altering the fundamental nature of the activity. As set forth above, if the risk is inherent, an owner or operator has no duty to protect the user from it and the user cannot recover for any alleged negligence on the part of the owner/operator. See, Quan Vu, 295 F.Supp.3d at 507-09; Chepkevich. 2 A.3d at 1186. Accordingly, the “no-duty” rule applies here.

In opposition, however, Plaintiff also contends that the “no-duty” rule does not apply here because there is evidence that Defendants deviated “from established custom” by failing to meet industry standards. (ECF No. 56, p. 8-14). To that end, Plaintiff points to her experts who opine that the Warrior Course fails to meet industry standards and that “Defendant NAA failed to properly maintain and operate the Warrior Course within the standards set forth in the operations manual for the Warrior Course.” (ECF No. 56, pp. 10-14). For example, Plaintiff suggests that Defendants should have used foam instead of plastic balls to minimize the risk and/or to ensure the balls in the pit were always level and that Defendants should have advised her not to land with a straight leg. These arguments go to negligence principles, not as to salient question of whether the risk was inherent. The question of inherent risk must be determined first. See, Quan Vu, supra; Jones, supra; Telega, supra. “[W]hen inherent risks are involved, negligence principles are irrelevant,” the inquiry is over, and summary judgment is proper. Quan Vu, 295 F.Supp.3d at 509. Therefore, Plaintiff’s arguments in this regard, and the evidence submitted to support them, fail to raise a genuine issue of material fact. Thus, the Court finds summary judgment in favor of Defendants is warranted.

Consequently, Defendant’s Motion for Summary Judgment (ECF No. 47) is granted.^[4]

B. Plaintiff’s Motion for Partial Summary Judgment (ECF No. 45)

Plaintiff maintains that summary judgment is warranted as to Defendants’ affirmative defense of release, consent, and/or waiver. (ECF No. 45). To that end, Plaintiff contends that she did not sign the release and waiver agreement and she did not give authority to anyone to sign a waiver and release on her behalf. (ECF No. 46). Specifically, Plaintiff submits that there is no genuine issue of material fact that Plaintiff did not sign the waiver, that Mr. Hodges did not have authority (express or implied) to sign the waiver on her behalf, that there is no evidence of apparent authority, and there is no evidence of authority by estoppel. (ECF No. 46). Thus, Plaintiff seeks a partial summary judgment as to the defense of release, consent, and/or waiver. (ECF No. 45). Since the Court has granted summary judgment in favor of Defendants as to all of Plaintiff’s claims, Plaintiff’s Motion for Partial Summary Judgment (ECF No. 45) is denied as moot.

V. CONCLUSION

The Court is not unsympathetic to Plaintiff’s injury, but the extent of her injury is of no moment when considering the issue of whether the “no-duty” rule applies. Based on the foregoing, Defendants’ Motion for Summary Judgment (ECF No. 47) is granted and Plaintiff’s Motion for Partial Summary Judgment (ECF No. 45) is denied as moot.

An appropriate Order follows.

———

Notes:

^[1] All parties have consented to jurisdiction before a United States Magistrate Judge; therefore, the Court has the authority to decide dispositive motions, and to eventually enter final judgment. See 28 U.S.C. § 636, et seq.

^[2] There are cross motions for summary judgment pending. (ECF Nos. 45 and 47). As set forth above, when reviewing cross-motions for summary judgment, the court is to view the evidence in the light most favorable to the non-moving party with respect to each motion. F.R.C.P. 56. In this case, the Court finds Defendants’ Motion to be dispositive of the issues in this case. Therefore, the facts will be viewed in the light most favorable to Plaintiff. The background facts are taken from the admitted undisputed facts.

^[3]
See, e.g. Quan Vu, supra (collecting cases holding certain risks are inherent to a particular activity).

^[4] As an alternative type of argument, Defendants argue that the record is devoid of facts establishing Defendants’ conduct was reckless such that Plaintiff is not entitled to punitive damages. (ECF No. 47). Since this Court has found summary judgment is proper as to Plaintiff’s negligence claims, the issue is moot and the Court makes no comment on the same.

———

New Jersey Supreme Court holds the Rescue Doctrine only applies to rescuing people and not property unless rescuing the property saves people.

Posted: April 24, 2023 | Author: Recreation Law | Filed under: Assumption of the Risk, New Jersey, Search and Rescue (SAR) | Tags: New Jersey, New Jersey Supreme Court, Person in Peril, Rescue Doctrine, Supreme Court of New Jersey | Leave a comment

Family sues after wife is injured attempting to rescue neighbor’s dog. Supreme court holds rescuing a dog does not qualify under the rescue doctrine.

Samolyk v. Berthe (N.J. 2022)

State: New Jersey; Supreme Court of New Jersey

Plaintiff: Ann Samolyk and John Samolyk

Defendant: Dorothy Berthe, III, Defendant, and Ilona Destefanis and Robert Destefanis

Plaintiff Claims: Rescue Doctrine

Defendant Defenses:

Holding: For the Defendants

Year: 2022

Summary

The rescue doctrine in New Jersey can only be used to recover for injuries sustained when rescuing a person. Rescuing property, in this case a dog, does not apply.

Facts

This matter arises from injuries sustained by plaintiff Ann Samolyk while trying to rescue a dog owned by defendants Ilona and Robert DeStefanis. Ann’s[1] husband, John Samolyk, filed a civil action against defendants, as Ann’s guardian ad litem, alleging defendants were liable under the rescue doctrine by negligently allowing their dog to fall or jump into the canal that borders their property, prompting Ann to dive into the water to prevent the dog from drowning. The complaint also included a per quod claim by John seeking compensation for any loss or impairment of his spouse’s services, society, and companionship due to injuries Ann sustained as a proximate result of defendants’ negligence.

The parties are neighbors in Forked River, an unincorporated bayfront community within Lacey Township. Their homes are situated on a canal. In the evening of July 13, 2017, defendants’ dog fell or jumped into the canal that snakes around the rear area of this shore community. Ann claimed she heard someone calling for help to rescue their dog that had fallen into the canal.[2] A report filed by a Lacey police officer describes the incident as “a report of a dog swimming in the lagoon.” The report states that Ann “entered the lagoon to rescue the dog.” The dog “was removed from the lagoon,” without any apparent harm, by defendants’ son and a family friend. Regrettably, Ann was found “unconscious on a floating dock.” In response to defendants’ interrogatories, plaintiffs allege Ann sustained neurological and cognitive injuries as a result of the incident.

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

The basic claim of the plaintiff was

“Plaintiffs’ counsel argued that defendants “invited the rescue because the dog was in peril, . . . [and Ann] would not [have] jump[ed] in the lagoon and [nearly] drown[ed] but for the dog being in there and people screaming about having to rescue the dog.”

The rescue doctrine allows an injured rescuer to recover damages from the person who placed another in peril or placed themselves in peril.

The rescue doctrine established in Wagner was originally limited to situations “where three persons are involved, i.e., one party by his culpable act has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his aid.” New York courts later expanded the rescue doctrine “to encompass a two-party situation where the culpable party has placed himself in a perilous position which invites rescue.”

The New Jersey Supreme Court found the claims of the plaintiff wanted to expand the rescue doctrine to the injuries received from rescuing property.

In this appeal, we are asked to expand the scope of the rescue doctrine to include those who voluntarily choose to expose themselves to significant danger in an effort to safeguard the property of another. We decline to modify the rescue doctrine to incorporate such a far-reaching departure from the fundamental principles embedded in Wagner.

Several states have expanded the rescue doctrine to cover property; however, the NJ Supreme Court declined to extend the doctrine in New Jersey. Unless the property being rescued would result in saving a human life, the rescue doctrine could not be used to recover for injuries of the rescuer.

Against this analytical backdrop, we decline to expand the rescue doctrine to include injuries sustained to protect property, except in settings in which the plaintiff has acted to shield human life.

The court then wrote an example of how the rescue doctrine could be used in a case like this.

Following that line of reasoning, plaintiffs’ cause of action would have survived a motion for summary judgment had she jumped into the canal after defendants’ dog as a simultaneous reaction to seeing a child of tender years running after the animal and quickly approaching the edge of the dock. In that hypothetical situation, Ann’s actions to protect the child from imminent danger by rescuing the dog may have been reasonable and could therefore have served as the basis for a cognizable cause of action under the rescue doctrine.

Here the sole cause of the plaintiff’s injuries came from her desire to rescue property, a dog.

By contrast, the uncontested evidence here shows that Ann’s actions were based solely on her perception of danger to the dog’s life. These nuanced distinctions are intended to acknowledge and reaffirm the public policy underpinning the rescue doctrine in our state, to wit, the protection of human life. Thus, plaintiffs’ complaint was properly dismissed because Ann’s decision to jump into the canal to save the dog’s life does not give rise to a cognizable claim under the rescue doctrine.

So Now What?

The rescue doctrine started out, as stated above that someone who rescued someone who had been placed in peril by another could recover for their injuries from the party at fault, the party that placed the person in peril.

The doctrine has expanded from what once was an attempt to punish those who created problems and reward those who solved the problem to providing money to someone who tried to help.

The rescue doctrine does not apply to commercial guides and outfitters because they have a higher duty to keep their customers safe and as such, no matter how the person came to be in peril; it is the fault of the outfitter or guide and their responsibility to rescue them.

The rescue doctrine is interpreted differently in every state, so make sure you understand it before you attempt to recover for your injuries.

Other cases that talk about the Rescue Doctrine see:

Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota http://rec-law.us/1HCQ0Px

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here.

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Samolyk v. Berthe (N.J. 2022)

Posted: April 24, 2023 | Author: Recreation Law | Filed under: Assumption of the Risk, New Jersey, Search and Rescue (SAR), Uncategorized | Tags: New Jersey, New Jersey Supreme Court, Person in Peril, Rescue, Rescue Doctrine, Supreme Court | Leave a comment

Ann Samolyk and John Samolyk, Plaintiffs-Appellants,
v.
Dorothy Berthe, III, Defendant,

and Ilona Destefanis and Robert Destefanis, Defendants-Respondents.

No. A-16-21

Supreme Court of New Jersey

June 13, 2022

Argued February 1, 2022

On certification to the Superior Court, Appellate Division.

William D. Wright argued the cause for appellants (The Wright Law Firm, attorneys; William D. Wright and David T. Wright, on the briefs).

John Burke argued the cause for respondents (Burke & Potenza, attorneys; John Burke, of counsel and on the brief).

FUENTES, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court considers whether to expand the common law rescue doctrine to permit plaintiffs to recover damages for injuries sustained as a proximate result of attempting to rescue defendants’ dog.

Plaintiff Ann Samolyk sustained neurological and cognitive injuries when she entered a lagoon in Forked River to rescue her neighbors’ dog, which had fallen or jumped into the water. Samolyk’s husband filed a civil action against defendants, alleging they were liable under the rescue doctrine by negligently allowing their dog to fall or jump into the water, prompting Samolyk to attempt to save the dog.

Neither the Law Division nor the Appellate Division found the doctrine applicable. The Court granted certification. 248 N.J. 518 (2021).

HELD: After reviewing the noble principles that infuse the public policy underpinning this cause of action, the Court declines to consider property, in whatever form, to be equally entitled to the unique value and protection bestowed on a human life. The Court nevertheless expands the rescue doctrine to include acts that appear to be intended to protect property but are in fact reasonable measures ultimately intended to protect a human life.

1. Under the rescue doctrine, “[t]he state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid.” Wagner v. Int’l Ry. Co., 133 N.E. 437, 437-38 (N.Y. 1921). The doctrine has also been held to provide a source of recovery to one who is injured while undertaking the rescue of another who has negligently placed himself in peril. Thus, an actor is liable for harm sustained by a rescuer where the conduct of the actor has created a danger only to himself, if at the time of such conduct he should reasonably anticipate that others might attempt to rescue him from his self-created peril, and sustain harm in doing so. The Restatement (Second) of Torts and a majority of states have extended the rescue doctrine to efforts to save property. (pp. 6-11)

2. The Court declines to expand the rescue doctrine to include injuries sustained to protect property, except in settings in which the plaintiff has acted to shield human life. Notwithstanding the strong emotional attachment people may have to dogs, cats, and other domesticated animals, or the great significance some may attribute to family heirlooms, or works of art generally considered as irreplaceable parts of our cultural history, sound public policy cannot sanction expanding the rescue doctrine to imbue property with the same status and dignity uniquely conferred upon a human life. The risk protected by the rescue doctrine is calibrated only by the reasonableness of the actions taken by the rescuer because all human life is equally precious. The same calculation, considering the necessarily subjective attachments to property, would prove untenable. (p. 12)

3. The Court explains that certain preemptive acts that appear to be driven by the protection of property are, at their core, adjuncts to the protection of human life and thus may give rise to a cause of action under the rescue doctrine. By contrast, the uncontested evidence here shows that Samolyk’s actions were based solely on her perception of danger to the dog’s life. The complaint was properly dismissed because the decision to jump into the canal to save the dog’s life does not give rise to a cognizable claim under the rescue doctrine. (pp. 13-14)

AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, SOLOMON, and PIERRE-LOUIS join in JUDGE FUENTES’s opinion.

OPINION

FUENTES JUDGE (temporarily assigned).

This appeal requires this Court to determine whether to expand the common law rescue doctrine to permit plaintiffs to recover damages for injuries sustained as a proximate result of attempting to rescue defendants’ dog. After reviewing the noble principles that infuse the public policy underpinning this cause of action, we decline to consider property, in whatever form, to be equally entitled to the unique value and protection we bestow on a human life. We nevertheless expand the cognizable scope of the rescue doctrine to include acts that facially appear to be intended to protect property, but are in fact reasonable measures ultimately intended to protect a human life.

This matter arises from injuries sustained by plaintiff Ann Samolyk while trying to rescue a dog owned by defendants Ilona and Robert DeStefanis. Ann’s^[1] husband, John Samolyk, filed a civil action against defendants, as Ann’s guardian ad litem, alleging defendants were liable under the rescue doctrine by negligently allowing their dog to fall or jump into the canal that borders their property, prompting Ann to dive into the water to prevent the dog from drowning. The complaint also included a per quod claim by John seeking compensation for any loss or impairment of his spouse’s services, society, and companionship due to injuries Ann sustained as a proximate result of defendants’ negligence.

The parties are neighbors in Forked River, an unincorporated bayfront community within Lacey Township. Their homes are situated on a canal. In the evening of July 13, 2017, defendants’ dog fell or jumped into the canal that snakes around the rear area of this shore community. Ann claimed she heard someone calling for help to rescue their dog that had fallen into the canal.^[2] A report filed by a Lacey police officer describes the incident as “a report of a dog swimming in the lagoon.” The report states that Ann “entered the lagoon to rescue the dog.” The dog “was removed from the lagoon,” without any apparent harm, by defendants’ son and a family friend. Regrettably, Ann was found “unconscious on a floating dock.” In response to defendants’ interrogatories, plaintiffs allege Ann sustained neurological and cognitive injuries as a result of the incident.

After joinder of issue and the parties’ answers to interrogatories, as well as production of relevant documentary evidence, but before the parties took depositions, the Law Division judge assigned to manage the case directed the parties to file dispositive motions addressing whether plaintiffs raised a cognizable claim under the rescue doctrine.

Plaintiffs’ counsel argued that defendants “invited the rescue because the dog was in peril, . . . [and Ann] would not [have] jump[ed] in the lagoon and [nearly] drown[ed] but for the dog being in there and people screaming about having to rescue the dog.” In rebuttal, defense counsel noted that no court in this State had extended the rescue doctrine to apply to the protection of property. The Law Division judge agreed with defendants’ position. The judge noted he was not empowered “to start defining what level of property is worth risking a human life.”

The Appellate Division reached the same conclusion in an unpublished opinion, noting that “no reported case from any New Jersey court has applied the rescue doctrine to support a cause of action brought by the rescuer of real or personal property against a defendant who, through his negligence, placed the property in peril.”

The Appellate Division’s thoughtful opinion recognized, however, that the Restatement (Second) of Torts § 472 (Am. Law Inst. 1965) has extended the rescue doctrine to the protection of property. Plaintiffs also relied on caselaw from our sister states tracking the Restatement’s approach. Although the Appellate Division found that “[s]ome of that authority is persuasive and raises a legitimate question [as to] why the rescue doctrine should be limited to the rescue of another human being,” it nevertheless declined to expand the scope of this common law doctrine in deference to its role as an intermediate appellate court.

This Court granted plaintiffs’ petition for certification to determine whether the rescue doctrine extends to property, specifically here, a dog. 248 N.J. 518 (2021).

II.

The parties rely on the arguments they made before the Appellate Division. Plaintiffs urge this Court to rely on the Restatement, as the majority of our sister states have done, and extend the rescue doctrine to protect property. In response, defendants argue it is unclear whether a majority of states have extended the doctrine to protect property, and they emphasize that New Jersey courts have consistently applied the rescue doctrine to encourage voluntary exposure to danger only to protect human life.

III.

This Court reviews the grant of a motion for summary judgment de novo, applying the same standard used by the trial court. Woytas v. Greenwood Tree Experts, Inc., 237 N.J. 501, 511 (2019). We must “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.” Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). The issue before us concerns the development of our state’s common law, a responsibility exclusively entrusted to this Court. See DCPP v. J.R.-R., 248 N.J. 353, 373 (2021).

The rescue doctrine is best described by quoting the words of Justice Benjamin N. Cardozo, then Judge of the New York Court of Appeals, in Wagner v. International Railway Co.:

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid.

[133 N.E. 437, 437-38 (N.Y. 1921).]

The rescue doctrine established in Wagner was originally limited to situations “where three persons are involved, i.e., one party by his culpable act has placed another person in a position of imminent peril which invites a third person, the rescuing plaintiff, to come to his aid.” See Provenzo v. Sam, 244 N.E.2d 26, 28 (N.Y. 1968). New York courts later expanded the rescue doctrine “to encompass a two-party situation where the culpable party has placed himself in a perilous position which invites rescue.” Ibid.

The rescue doctrine “has long been a part of our State’s social fabric.” Saltsman v. Corazo, 317 N.J.Super. 237, 248 (App. Div. 1998) (quoting Burns
v. Mkt. Transition Facility, 281 N.J.Super. 304, 310 (App. Div. 1995)). The doctrine has been applied “to situations where the rescuer . . . sues the rescued victim who is either completely, or partially, at fault for creating the peril that invited the rescue.” Id. at 249. The Appellate Division has consistently applied the doctrine to cases where the rescuer is injured when trying to rescue another person. See id. at 247; Blackburn v. Broad St. Baptist Church, 305 N.J.Super. 541, 544-46 (App. Div. 1997); Tornatore v. Selective Ins. Co. of
Am., 302 N.J.Super. 244, 252 (App. Div. 1997). The first time this Court directly considered the rescue doctrine was in Ruiz v. Mero, a case in which we affirmed the Appellate Division’s opinion, which held that the Legislature abrogated the “firefighters’ rule”^[3] when it adopted N.J.S.A. 2A:62A-21. 189 N.J. 525, 527 (2007). In Ruiz, a unanimous Court upheld the right of a police officer to rely on the rescue doctrine to sue “a commercial landowner for injuries he suffered when quelling a disturbance at the owner’s bar.” Ibid. In the course of explaining the statute’s unambiguous conflict with the firefighters’ rule, Justice Long noted the rescue doctrine was “[d]eeply rooted” in our state’s common law and “provides a source of recovery to one who is injured while undertaking the rescue of another who has negligently placed himself in peril.” Id. at 528-29.

In Estate of Desir v. Vertus, we reviewed the applicability of the rescue doctrine in the context of a “tragic shooting death of an individual by a criminal fleeing from a business.” 214 N.J. 303, 308 (2013). The estate of the victim filed a civil action against the defendant based in part on the rescue doctrine. Ibid. We held the defendant did not negligently create the danger that caused the decedent to come to his aid because the

evolution of the rescue doctrine remains grounded upon essential tort concepts of duty and foreseeability. As the doctrine has been explained, an actor is liable for harm sustained by a rescuer “where the conduct of the actor has created a danger only to himself, if at the time of such conduct he should reasonably anticipate that others might attempt to rescue him from his self-created peril, and sustain harm in doing so.”

[Id at 321 (quoting Restatement (Second) of Torts § 445 cmt. d).]

Those cases illustrate that, as the guardians of our state’s common law, this Court has limited the application of the rescue doctrine to reflect the sound public policy Justice Cardozo eloquently described in Wagner.

We acknowledge that the Restatement (Second) of Torts extends the rescue doctrine to property and provides that

[i]t is not contributory negligence for a plaintiff to expose himself to danger in an effort to save himself or a third person, or the land or chattels of the plaintiff or a third person, from harm, unless the effort itself is an unreasonable one, or the plaintiff acts unreasonably in the course of it.

[§ 472 (emphasis added).]

See also Prosser & Keeton on Torts, § 44 (5th ed. 1984) (explaining that, “[a]lthough there has been some disagreement, the great majority of courts now apply the [rescue doctrine] to one who tries to rescue the property of another, even when under no duty to do so, and even though the property involved is that of the defendant”).

The Second Restatement, however, acknowledges that “a plaintiff may run a greater risk to his own personal safety in a reasonable effort to save the life of a third person than he could run in order to save the animate or inanimate chattels of his neighbor or even of himself.” § 472 cmt. a. Furthermore, the Restatement (Third) of Torts: Liability for Physical and Emotional Harm includes the extension to property, noting: “This Section is also applicable to a rescuer of imperiled property, whether that property is owned by another or by the rescuer.” § 32, cmt. b (Am. Law Inst. 2010).

A majority of our sister states that have extended the rescue doctrine to cover property have done so in accord with the Restatement (Second) of Torts. See, e.g., Estate of Newton v. McNew, 698 P.2d 835, 837 (Colo.App. 1984) (holding that the doctrine is applicable to property after finding that a “majority of states apply” the doctrine to “one who tries to rescue the property of another”); Neff v. Woodmen of the World Life Ins. Soc’y, 529 P.2d 294, 296 (N.M. Ct. App. 1974) (finding the doctrine applicable to property and noting that “[t]he majority of courts . . . have extended [the doctrine] to include situations where property is in danger of being severely damaged or destroyed”); Henjum v. Bok, 110 N.W.2d 461, 463 (Minn. 1961) (holding that the doctrine is applicable “where an attempt is being made to save human life or property”).

Other jurisdictions have declined to expand the rescue doctrine to include the protection of property. For example, the Missouri Eastern District Court of Appeals held in Welch v. Hesston Corp. that, “[u]nlike a majority of other jurisdictions,” it has consistently declined to extend the rescue doctrine to include the protection of property. 540 S.W.2d 127, 129 (Mo.Ct.App. 1976). The court explained that

[t]he policy basis of the distinction in treatment of rescuers of persons and rescuers of property seems “to rest upon that high regard in which the law holds human life and limb; whereas, when mere property is involved, one may not voluntarily subject another to greater liability than that which he seeks to avert.”

[Id. at 129-30 (quoting Tayer v. York Ice Mach. Corp., 119 S.W.2d 240, 246 (Mo. 1937)).]

IV.

Against this analytical backdrop, we decline to expand the rescue doctrine to include injuries sustained to protect property, except in settings in which the plaintiff has acted to shield human life. We are convinced that any attempt to reform the application of the rescue doctrine to include the protection of property, whether animate or inanimate, realty or chattel, must emanate from our innate instinct to protect human life. Notwithstanding the strong emotional attachment people may have to dogs, cats, and other domesticated animals, or the great significance some may attribute to family heirlooms, or works of art generally considered as irreplaceable parts of our cultural history, sound public policy cannot sanction expanding the rescue doctrine to imbue property with the same status and dignity uniquely conferred upon a human life.

The words uttered by Justice Cardozo describe the contours of a cause of action that tolerates a concomitant degree of harm a plaintiff is reasonably willing to risk and, if necessary, endure to protect a human life. The risk factor is calibrated only by the reasonableness of the actions taken by the rescuer because all human life is equally precious. The same calculation, considering the necessarily subjective attachments to property, would prove untenable.

We are also aware, however, that certain preemptive acts that appear to be driven by the protection of property are, at their core, adjuncts to the protection of human life and thus may give rise to a cause of action under the rescue doctrine. For example, consider a neighbor who reports a fire in a nearby house to the proper authorities, then attempts to squelch the fire based on a reasonable, good faith belief that children or other vulnerable inhabitants may be in immediate danger, or because it appears likely the fire may spread to other occupied properties. Under those circumstances, if the fire was negligently started, the neighbor may have a cognizable basis to invoke the rescue doctrine to recover damages for injuries caused by the preemptive measures taken to limit the intensity of the fire, even if it is later determined there was no actual risk to human life because the house was unoccupied.

The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON, SOLOMON, and PIERRE-LOUIS join in JUDGE FUENTES’s opinion.

———

Notes:

^[1] We refer to plaintiffs by their first names because they share the same last name. We do not intend any disrespect.

^[2] Although defendants dispute this part of the facts presented to the Law Division, we will accept them as accurate for the purpose of addressing the dispositive legal issue raised by the parties.

^[3] The firefighters’ rule was a common law affirmative defense absolving the owner or occupier of land of liability “to a paid fireman for negligence with respect to the creation of a fire.” Krauth v. Geller, 31 N.J. 270, 273 (1960).

———

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Ski Area not liable when skiers leave the ski run and collide with snow making equipment in Michigan.

Posted: October 2, 2022 | Author: Recreation Law | Filed under: Assumption of the Risk, Michigan, Ski Area | Tags: fatality, Michigan Michigan Ski Area Safety Act, Michigan SASA, SASA, Schuss Mountain, ski run, Snow Making, Snow Making Equipment | Leave a comment

Litigation ensued because an important term in the Michigan’s Ski Area Safety Act was not defined in the act. What is a ski run?

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

State: Michigan; Court of Appeals of Michigan

Plaintiff: Cheryle A. Round, as Personal Representative of the Estate of Charles R. Round

Defendant: Trinidad Resort & Club, LLC, Schuss Mountain

Plaintiff Claims: negligence action, alleging that defendant failed to comply with duties imposed under the SASA

Defendant Defenses: Release

Holding: For the defendant ski area

Year: 2022

Summary

Lawsuit against a ski area was based on a term in the statute that was not defined, forcing the court to define the term. What is a ski run? The decedent skied into snow making equipment and died. If on the ski run, the equipment must be marked. The equipment was not marked. The court also ruled over and embankment, not on snow and 15-25 feet from the edge of the run, the snow making equipment was not on the ski run.

Facts

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

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

Pursuant to Michigan’s Ski Area Safety Act, a ski area is not liable for injuries to its patrons for collisions with snow making equipment if the snow making equipment is “properly marked or plainly visible.”

§ 408.342. Duties of skier in ski area; acceptance of dangers.

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

The plaintiff argued the snow making equipment was not marked and had to be marked because it was located on the ski run. The defendant argued that the snow making equipment was not on the ski run. Ski run is not defined by the Michigan’s Ski Area Safety Act. The Michigan Appellate Court then had to use the plain meeting of the terms to derive a definition.

At minimum, the plain meaning of the phrase “ski run” for purposes of the SASA must include a path or route expected to be used for skiing down a hill. Indeed, ski runs are named, designed, constructed, groomed, and designated as the route skiers are to use for skiing down a particular hill. As this Court similarly noted in Rhoda v O’Dovero, Inc, unpublished per curiam opinion of the Court of Appeals: “Although the SASA does not define the terms ‘run,’ ‘slope’ or ‘trail,’ the plain, ordinary and common meanings of these terms encompass the paths a skier or snowboarder takes to get down a hill, including those paths designed and constructed by the ski operator for precisely that purpose.”

The court then went into the depositions presented by the defendant, witnesses who described the location of the snow making equipment when the deceased hit it.

The decedent was found 22′ off the run, over an embankment under the snow gun. It took several repetitions to move the deceased in a toboggan from where he was back up to the ski run.

The court reasoned if the snow gun which the deceased collided with was located on the trail, the other skiers following him would have hit the snow gun also.

The Appellate court sent the case back to the trail court with an order to grant the defendant’s motion to dismiss the case.

So Now What?

Short and sweet, but educational because of the issues the statute left out. Michigan’s Ski Area Safety Act is a combination of a skier safety act and a tramway act. Consequently, it is quite long with little have much to do with how the ski area is to operate. The act has definitions but most deal with the structure of the tramway issues.

When one term, as in this case ski run is used to defined part of a statute, that term needs to be defined, or we end up in a position like this, litigation to define what is a ski run.

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

Posted: October 2, 2022 | Author: Recreation Law | Filed under: Assumption of the Risk, Michigan, Ski Area | Tags: fatality, Michigan SASA, Michigan Ski Area Safety Act, Schuss Mountain, ski run, Snow Making Equipment | Leave a comment

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

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

No. 357849

Court of Appeals of Michigan

September 15, 2022

UNPUBLISHED

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

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

Per Curiam

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MCL 408.326a provides in relevant part:

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

———

Notes:

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

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

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

———

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

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

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

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

No. 357849

Court of Appeals of Michigan

September 15, 2022

UNPUBLISHED

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

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

Per Curiam

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

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

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

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

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

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

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

MCL 408.326a provides in relevant part:

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

* * *

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

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

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

———

Notes:

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

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

———

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The path down from the road to a river is an open and obvious danger that the plaintiff assumes before walking down the path.

Posted: June 27, 2022 | Author: Recreation Law | Filed under: Assumption of the Risk, New York, Paddlesports, Rivers and Waterways | Tags: assumption of the risk, Battenkill River, Battenkill river Sports & Campground, Common Carrier, River Tubing, Tubing | Leave a comment

Plaintiff worked hard to come up with any possible legal theory to win.

Rooney v. Battenkill River Sports & Campground Holding Co. (N.Y. Sup. Ct. 2022)

State: New York; Supreme Court of New York, Third Department

Plaintiff: Jessica Rooney

Defendant: Battenkill River Sports & Campground Holding Company, LLC

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: For the Defendant

Year: 2022

Summary

Plaintiff sued for injuries she received while walking down a path to the river to go tubing. Defendant tube rental company proved the risks were open and obvious, and the plaintiff assumed the risks.

Facts

In July 2018, plaintiff sustained injuries when she slipped on a rock located on an access path while attempting to access the Battenkill River to go water tubing.

This is a case out of New York so the facts are few, and the decision is short.

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

Not all the legal arguments made by the plaintiff are going to be discussed here. The case is easy to read, and you understand them on your own.

The plaintiff was walking down an embankment to the river, which was not owned by the tubing company, when she fell. She sued for negligence and argued the defendant owed her a high duty of care because the defendant was a common carrier.

The trail court adopted that position and upheld the plaintiffs’ claims on that theory; however, the trial court dismissed the plaintiff’s claims because she assumed the risk causing her injury. The plaintiff appealed. The appellate court did not review the common carrier question.

(It would be extremely rare and unlikely that any transportation that was incidental to the recreational activity and only taking people from the shop to the put in would be found to be a common carrier by any court in any state.)

The duty of the defendant in this situation is to exercise reasonable care to make sure the conditions are as safe as they appear. The defendant has a duty to search for unknown risks that may not be obvious to the guest. Meaning any risk that is visible is assumed by the guest, those risks that are hidden are not assumed by the guest.

The duty owed under these circumstances is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty”

The court found that the defendant had met its burden and showed there were no hidden risks and the risks the plaintiff encountered were open and obvious.

Given this evidence, we find that defendant established its prima facie entitlement to judgment as a matter of law that plaintiff, who had prior experience water tubing and who had on a prior occasion used the same access path, assumed the inherent risk of her injuries. The risk of falling on uneven and rocky terrain while traversing the river’s embankment to access the river is a commonly appreciated and an obvious risk inherent in and arising out of the nature of the sport of river tubing…

Under New York law, when the defendant meets this threshold then the burden of proof shifts to the plaintiff to prove the defendant hid the risks or made the risk greater than they appeared.

Thus, the burden shifted to plaintiff to raise a triable issue of fact as to whether the defendant concealed or unreasonably enhanced the danger, engaged in reckless or intentional conduct or created conditions that were unique and not inherent in river water sports activities

The plaintiff failed to do so in two different ways. First, the plaintiff was unable to prove the defendant had anything to do with the path leading to the water, or that the path was in terrible condition with hidden dangers. Second, the plaintiff walked the same path in prior years without incident when tubing.

The court then summed up its analysis on why the plaintiff could not overcome her burden.

“One who engages in water sports assumes the reasonably foreseeable risks inherent in the activity” and it is foreseeable that, in order to gain access to the river, plaintiff needed to traverse down an uneven embankment consisting of rock and gravel. Although plaintiff encountered less than optimal conditions on the river embankment access path in July 2018, the risk of falling on the natural, rocky terrain is interwoven with and inherent in the sport of river water tubing and therefore was assumed by her. Plaintiff’s vague and equivocal testimony that defendant unreasonably increased the risk of traversing the path was insufficient to create a question of fact. Moreover, although plaintiff testified that there was no warning sign at the access point, a warning sign is unnecessary as “[t]he duty to warn… does not extend to open and obvious dangers – particularly those encompassing natural geographic phenomena which can readily be observed by those employing the reasonable use of their senses”

So Now What?

In New York, it is always an issue as to whether or not an activity will fall within the purview of New York General Obligations Law § 5-326 which prohibits a place of amusement from using a release. Several courts have interpreted New York General Obligations Law § 5-326 to mean a physical place and so a river may not qualify. However, based on several other decisions it might be worth putting release language into a written agreement for guests to sign.

At the very least, the defendant could use an assumption of risk agreement where the agreement points out the risk of tubing, including accessing the river, reinforce those risks in a safety talk and protect from more than the inherent risks of tubing.

It might not bring closure any quicker; however, it might deter a plaintiff from starting a case to begin with.

What do you think? Leave a comment.

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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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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Rooney v. Battenkill River Sports & Campground Holding Co. (N.Y. Sup. Ct. 2022)

Posted: June 27, 2022 | Author: Recreation Law | Filed under: Assumption of the Risk, New York, Paddlesports, Rivers and Waterways | Tags: Access Path, assumption of the risk, Battenkill River, Battenkill River Sports & Campground Holding Company, Open and Obvious, River Tubing, Tubing | Leave a comment

Rooney v. Battenkill River Sports & Campground Holding Co. (N.Y. Sup. Ct. 2022)

Jessica Rooney, Appellant-Respondent,
v.
Battenkill River Sports & Campground Holding Company, LLC, Respondent-Appellant.

No. 2022-02606

Supreme Court of New York, Third Department

April 21, 2022

Calendar Date:February 10, 2022

Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel), for appellant-respondent.

Mark D. Goris, Cazenovia, for respondent-appellant.

Before: Egan Jr., J.P., Clark, Aarons, Reynolds Fitzgerald and McShan, JJ.

Reynolds Fitzgerald, J.

Cross appeals from an order of the Supreme Court (McGrath, J.), entered July 1, 2021 in Rensselaer County, which granted defendant’s motion for summary judgment dismissing the complaint.

In July 2018, plaintiff sustained injuries when she slipped on a rock located on an access path while attempting to access the Battenkill River to go water tubing. Plaintiff subsequently commenced this negligence action against defendant, the company that rented her the tube and shuttled her by van to the river’s access point. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint on the basis that defendant did not owe or breach any duty to plaintiff and that plaintiff’s claim was barred by the doctrine of primary assumption of risk. Plaintiff opposed the motion arguing, among other things, that defendant was a common carrier and, as such, it owed a duty of care to maintain the access path. Supreme Court found that defendant operated as a common carrier, and that questions of fact existed as to whether the embankment’s access path was primarily used for defendant’s business and whether defendant assumed a duty of care. Nevertheless, Supreme Court granted defendant’s motion and dismissed the complaint, finding that the doctrine of primary assumption of risk applied to bar plaintiff’s claims. Plaintiff appeals and defendant cross appeals from those portions of the order that found defendant to be a common carrier and that questions of fact exist as to whether defendant owed plaintiff a duty of care. ^[1]

The gravamen of plaintiff’s contention is that the doctrine of primary assumption of risk is inapplicable here because, although she had traversed the at-issue access path on a prior occasion, such activity is not an inherent risk associated with water tubing. “Under the assumption of risk doctrine, a person who elects to engage in a sport or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Schorpp v Oak Mtn., LLC, 143 A.D.3d 1136, 1137 [2016] [internal quotation marks and citations omitted]; see Morgan v State of New York, 90 N.Y.2d 471, 484-485 [1997]; Thompson v Windham Mtn. Partners, LLC, 161 A.D.3d 1366, 1366 [2018]; Youmans v Maple Ski Ridge, Inc., 53 A.D.3d 957, 958 [2008]). “The duty owed under these circumstances is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Youmans v Maple Ski Ridge, Inc., 53 A.D.3d at 958 [internal quotation marks and citations omitted]).

In support of its motion, defendant submitted photographs ^[2] of the access path used by plaintiff and the particular rock that plaintiff identified as the one on which she slipped. Defendant also relied on the depositions of plaintiff and Suzanne Piekarz, the daughter of defendant’s owner. Plaintiff’s testimony confirmed that she had previously used the same access path on a prior water tubing excursion. Piekarz, who has worked at the business since she was a child, testified that the access path consisted of dry dirt and was not particularly rocky, and that the business did not own or maintain the river’s embankment access path. Her testimony also revealed that customers were warned by posted and written materials to walk and not run to the river, and that they assumed the risk for all river water activities, including one sign, which read:” you assume risk of injury and/or death when participating in river activities .” Given this evidence, we find that defendant established its prima facie entitlement to judgment as a matter of law that plaintiff, who had prior experience water tubing and who had on a prior occasion used the same access path, assumed the inherent risk of her injuries. The risk of falling on uneven and rocky terrain while traversing the river’s embankment to access the river is a commonly appreciated and an obvious risk inherent in and arising out of the nature of the sport of river tubing (see Sara W. v Rocking Horse Ranch Corp., 169 A.D.3d 1342, 1343-1344 [2019]; Martin v State of New York, 64 A.D.3d 62, 64 [2009], lv denied 13 N.Y.3d 706 [2009]; Youmans v Maple Ski Ridge, Inc., 53 A.D.3d at 959).

Thus, the burden shifted to plaintiff to raise a triable issue of fact as to whether defendant concealed or unreasonably enhanced the danger, engaged in reckless or intentional conduct or created conditions that were unique and not inherent in river water sports activities (see Morgan v State of New York, 90 N.Y.2d at 487). Plaintiff testified at her deposition that she previously rented a tube from defendant on two prior occasions and that she was taken by shuttle van to an access point, including on one occasion to the same access point where the accident occurred. Plaintiff recalled receiving documentation to fill out, viewing some warning signs at or near the rental office and receiving some general instructions during the shuttle van ride, but she did not recall any specific discussions, warnings or instructions regarding the access point or how to traverse from the shuttle van down to the river’s embankment access path to the river. Plaintiff described the river’s embankment access path as a narrow, rocky path that was difficult to navigate while holding a tube. Plaintiff stated that she was wearing flip flops and did not know what caused her to fall. Lastly, plaintiff asserted that when she went river tubing in 2017, the river embankment access path was a much smoother surface consisting of hard packed dirt and gravel.

“One who engages in water sports assumes the reasonably foreseeable risks inherent in the activity” Sartoris v State of New York, 133 A.D.2d 619, 620 [1987] [citation omitted]), and it is foreseeable that, in order to gain access to the river, plaintiff needed to traverse down an uneven embankment consisting of rock and gravel. Although plaintiff encountered less than optimal conditions on the river embankment access path in July 2018, the risk of falling on the natural, rocky terrain is interwoven with and inherent in the sport of river water tubing and therefore was assumed by her. Plaintiff’s vague and equivocal testimony that defendant unreasonably increased the risk of traversing the path was insufficient to create a question of fact. Moreover, although plaintiff testified that there was no warning sign at the access point, a warning sign is unnecessary as “[t]he duty to warn… does not extend to open and obvious dangers – particularly those encompassing natural geographic phenomena which can readily be observed by those employing the reasonable use of their senses” (Arsenault v State of New York, 96 A.D.3d 97, 101 [2012] [internal quotation marks and citations omitted]). In view of the foregoing, we find that Supreme Court’s award of summary judgment to defendant dismissing the complaint was proper (see Martin v State of New York, 64 A.D.3d at 65; Youmans v Maple Ski Ridge, Inc., 53 A.D.3d at 959-960).

Egan Jr., J.P., Clark, Aarons and McShan, JJ., concur.

ORDERED that the order is affirmed, without costs.

ORDERED that the cross appeal is dismissed, without costs.

———

Notes:

^[1] As Supreme Court granted defendant’s motion for summary judgment dismissing the complaint, defendant is not aggrieved by Supreme Court’s July 2021 order (see CPLR 5511), and defendant’s cross appeal must therefore be dismissed (see Matter of Village Green Hollow, LLC v Assessor of the Town of Mamakating, 145 A.D.3d 1134, 1135 n 2 [2016]; Maldonado v DiBre, 140 A.D.3d 1501, 1503 n 3 [2016], lv denied 28 N.Y.3d 908 [2016]). Although defendant’s arguments are properly before us as alternative grounds for affirmance, our decision renders them academic (see Ford v Rifenburg, 94 A.D.3d 1285, 1285 n 1 [2012]; McCormick v Bechtol, 68 A.D.3d 1376, 1378 n 2 [2009], lv denied 15 N.Y.3d 701 [2010], cert denied 562 U.S. 1063 [2010]).

^[2] Said photographs reflect the position and size of the rock, neither of which is particularly remarkable, and confirm plaintiff’s contention that the rocks located on this river access path were “not even.”

———

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G-YQ06K3L262

Trampoline Court Safety Act

Posted: November 15, 2021 | Author: Recreation Law | Filed under: Assumption of the Risk, Indoor Recreation Center, Michigan | Tags: #TrampolineParks, assumption of the risk, Duty to Warn, Michigan Trampoline Safety Act, Trampoline | 1 Comment

§ 691.1731. Short title

This act shall be known and may be cited as the ‘trampoline court safety act’.”

Mich. Comp. Laws 691.1731 Short title (Michigan Compiled Laws (2021 Edition))

§ 691.1733. Operator; duties

An operator shall do all of the following:

(a) Post the duties of trampoliners and spectators as prescribed in this act and the duties, obligations, and liabilities of operators as prescribed in this act in conspicuous places.

(b) Comply with the safety standards specified in ASTM F2970 – 13, “Standard Practice for Design, Manufacture, Installation, Operation, Maintenance, Inspection and Major Modification of Trampoline Courts” published in 2013 by the American society for testing and materials.

(d) Maintain the stability and legibility of all required signs, symbols, and posted notices.

(Added by 2014, Act 11,s 3, eff. 2/18/2014.)…

Mich. Comp. Laws 691.1733 Operator; duties (Michigan Compiled Laws (2021 Edition))

§ 691.1735. Trampoliner; duties

While in a trampoline court, a trampoliner shall do all of the following:

(a) Maintain reasonable control of his or her speed and course at all times.

(b) Read and follow all posted signs and warnings.

(d) Not run on trampolines, over pads, or on platforms.

(e) Refrain from acting in a manner that may cause injury to others.

(f) Not participate in a trampoline court when under the influence of drugs or alcohol.

(g) Properly use all trampoline court safety equipment provided.

(h) Not participate in a trampoline court if he or she has a preexisting medical condition, a bone condition, a circulatory condition, a heart or lung condition, a back or neck condition, high blood pressure, or a history of spine, musculoskeletal, or head injury, if he or she has had recent surgery, or if she may be pregnant.

(i) Remove inappropriate attire, including hard, sharp, or dangerous objects, such as buckles, pens, purses, or badges.

(j) Conform with or meet height, weight, or age restrictions imposed by the operator to use or participate in the trampoline court activity.

(k) Avoid crowding or overloading individual sections of the trampoline court.

(l) Use the trampoline court within his or her own limitations, training, and acquired skills.

(m) Avoid landing on the head or neck. Serious injury, paralysis, or death can occur from that activity.

(Added by 2014, Act 11,s 5, eff. 2/18/2014.)

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G-YQ06K3L262

Redmond v. Spring Loaded I, LLC, 349683Court of Appeals of Michigan, May 06, 2021

Redmond v. Spring Loaded I, LLC, 349683Court of Appeals of Michigan, May 06, 2021

Scott Redmond, Plaintiff-Appellant,

Spring Loaded I, LLC, and Spring Loaded III, LLC, Defendants,

and

Spring Loaded II, LLC, doing business as Airtime Trampoline-Sterling Heights, Defendant-Appellee.

No. 349683

Court of Appeals of Michigan

May 6, 2021

UNPUBLISHED

Macomb Circuit Court LC No. 2016-004272-NO

Before: Gleicher, P.J., and K. F. Kelly and Riordan, JJ.

PER CURIAM.

In this tort action, plaintiff appeals as of right the circuit court’s order granting summary disposition in favor of defendant, Spring Loaded II, LLC (Spring Loaded II), under MCR 2.116(C)(10).[ 1] We affirm.

I. FACTS & PROCEDURAL HISTORY

Plaintiff, a 47 year-old, 275 pound man, sustained a severe ankle injury while jumping on a trampoline at a facility owned and operated by Spring Loaded II. Plaintiff’s injury was captured on a surveillance camera. Spring Loaded II’s trampoline court facility is a large room filled with trampolines that are connected to one another by padded frames. Plaintiff’s injury occurred as he attempted to jump from one trampoline to another. He gained momentum to hurdle a two-foot-wide section of padding by jumping near the edge of the trampoline. In doing so, his ankle buckled and he fell onto the trampoline. Although he was in close proximity to the padding, it does not appear that he touched the padding when he landed.

Plaintiff sought to recover damages from Spring Loaded II under a negligence theory and for Spring Loaded II’s alleged failure to comply with the Trampoline Court Safety Act, MCL 691.1731 et seq. After engaging in discovery, Spring Loaded II filed a motion for summary disposition under MCR 2.116(C)(10). The circuit court granted Spring Loaded II’s motion and this appeal followed.

II STANDARD OF REVIEW

We review de novo a trial court’s decision on a motion for summary disposition. El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019). A motion under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Id. at 160. When considering a motion under MCR 2.116(C)(10), the trial court must consider all evidence submitted by the parties in the light most favorable to the party opposing the motion. Id. “A motion under MCR 2.116(C)(10) may only be granted when there is no genuine issue of material fact.” Id. (citation omitted). “A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might differ.” Id. (citation and quotation marks omitted).

III. ANALYSIS

The circuit court properly granted Spring Loaded II’s motion for summary disposition under MCR 2.116(C)(10).

A. THE TRAMPOLINE COURT SAFETY ACT

Plaintiff argues that summary disposition was inappropriate because there were genuine issues of material fact regarding whether Spring Loaded II violated the Trampoline Court Safety Act and whether the alleged violations caused plaintiff’s injury.[ 2] We disagree.

The Trampoline Court Safety Act prescribes duties and liabilities of trampoline court operators and individuals who use trampoline courts. MCL 691.1737 provides that “[a] trampoliner, spectator, or operator who violates this act is liable in a civil action for damages for the portion of the loss or damage that results from the violation.” Thus, in order to recover under MCL 691.1737, a party must establish both a violation of the Trampoline Court Safety Act and causation. Under MCL 691.1733(b), a trampoline court operator shall “[c]omply with the safety standards specified in ASTM[3] F2970-13, ‘Standard Practice for Design, Manufacture, Installation, Operation, Maintenance, Inspection and Major Modification of Trampoline Courts’ published in 2013 by the American society for testing and materials.”

Plaintiff argues that a reasonable trier of fact could find that Spring Loaded II’s failure to develop and communicate patron size restrictions to employees and patrons violated ASTM F2970-13 §§ 6, 9.1, 16.21, 16.22, and A.1.1.4 as well as ASTM F770-11 §§ 4.2 and 4.2.1, thereby causing plaintiff’s injury. However, ASTM F2970-13 § 6 applies only to “designers/engineers or manufacturers” of trampolines and § A.1.1.4 applies only to manufacturers. Spring Loaded II is an operator of a trampoline court facility and plaintiff presented no evidence that Spring Loaded designed or manufactured the trampoline.

ASTM F2970-13 § 9.1 requires trampoline manufacturers to furnish operating and maintenance information to trampoline court operators, and ASTM F2970-13 § 9.2 requires trampoline court operators to permanently affix the operating and maintenance information in a visible location in the trampoline court. ASTM F2970-13 § 9.2.5 requires the operating and maintenance information to include the “[m]aximum total patron weight per trampoline bed and per trampoline court.” Spring Loaded II conceded that the information plate was not posted in the trampoline court facility, and explained that the omission was due to the manufacturer’s failure to provide an information plate for that trampoline. However, even if a reasonable trier of fact could find that Spring Loaded II violated ASTM F2970-13 § 9.1 by failing to post the information plate, no reasonable trier of fact could find that the omission caused plaintiff’s injury. Under ASTM F2970-13 § 6.8.[ 3], trampoline manufacturers are generally required to design trampolines that are able to support users weighing 300 pounds and plaintiff testified in his deposition that he weighed approximately 275 pounds on the date of his injury. Thus, plaintiff would not have been informed that he exceeded the maximum user weight even if the information plate had been posted. Moreover, plaintiff failed to present any evidence that he would not have used the trampolines if the information plate had been posted.[ 4]

ASTM F2970-13 § 16.21 provides that the operator of a trampoline court facility “may deny entry to the device to any person, if in the opinion of the owner/operator the entry may cause above normal exposure to risk of discomfort or injury to the person who desires to enter . . . .” ASTM F2970-13 § 16.22 provides that “[t]rampoline court attendants should be given guide[]lines on the special considerations concerning patron size, and patrons with physical or mental disabilities or impairments . . . .” However, the word “may” indicates that ASTM F2970-13 § 16.21 is a discretionary provision and does not require trampoline court operators to deny entry to individuals that may have above normal exposure of risk to discomfort or injury. Moreover, plaintiff presented no evidence that any employees at Spring Loaded II believed plaintiff to be at an above normal risk of injury and considered exercising their discretion to deny entry to plaintiff. Furthermore, although Spring Loaded II should have given trampoline court attendants guidelines on the special considerations concerning patron size, ASTM F2970-13 § 16.22 did not require Spring Loaded II to do so in the instant matter. See In re Forfeiture of Bail Bond, 496 Mich. 320, 328; 852 N.W.2d 747 (2014) (noting that the significance of a statutory amendment changing “should” to “shall” is that the statute becomes mandatory). Therefore, no reasonable trier of fact could find that Spring Loaded II violated ASTM F2970-13 §§ 16.21 or 16.22 by not advising its attendants regarding any risks associated with a 275 pound patron. In addition, the language in ASTM F770-11 §§ 4.2 and 4.2.1 is almost identical to the language in ASTM F2970-13 §§ 16.21 and 16.22, and therefore, that plaintiff’s arguments with respect to those provisions fail for the same reasons.

Plaintiff next argues that a reasonable trier of fact could find that Spring Loaded II violated ASTM F2970-13 §§ 6.1 and 14.2, as well as ASTM F770-11 §§ 4.1, 8.1, and 8.3, by failing to develop and communicate information regarding the risks associated with jumping near the edge of the trampoline bed or the risks associated with jumping from one trampoline to another, thereby causing plaintiff’s injury. We disagree.

ASTM F2970-13 § 6.1 applies to designers, engineers, and manufacturers of trampolines, and as previously stated, plaintiff presented no evidence that Spring Loaded II was anything other than an operator of a trampoline facility. Additionally, ASTM F2970-13 § 14.2 requires trampoline court owners and operators to “notify the appropriate manufacturer(s) of any known incident as specified in Practice F770-11 Section 8.3.” F770-11 § 8.3 requires notification of incidents that result in a serious injury within seven days of the occurrence of the incident and incorporates F770-11 § 8.1, which states that owners and operators should complete an incident report including information regarding the injury. The use of the word “should” indicates that completing an incident report in accordance with F770-11 § 8.1 is discretionary. See In re Forfeiture of Bail Bond, 496 Mich. at 328 (noting that the significance of a statutory amendment changing “should” to “shall” is that the statute becomes mandatory). Additionally, Spring Loaded II’s obligation to notify the manufacturer of plaintiff’s injury could not have arisen until after plaintiff’s injury occurred. Thus, even assuming Spring Loaded II failed to notify the trampoline manufacturer of plaintiff’s injury, no reasonable trier of fact could find that the failure to do so caused plaintiff’s injury. Similarly, F770-11 § 4.1 requires owners and operators to “read and become familiar with the contents of the manufacturer’s recommended operating instructions and specifications, when received[, ]” and to prepare an “operating fact sheet” that shall be made available to trampoline court attendants. F770-11 § 4.1 does not mandate providing any information to patrons, and plaintiff failed to present any evidence that the manufacturer’s recommended operating instructions addressed an increased risk associated with jumping near the edge of a trampoline or jumping from one trampoline to another. Thus, no reasonable trier of fact could find that Spring Loaded II’s alleged failure to provide an operating fact sheet to trampoline court attendants caused plaintiff’s injury.

B. DUTY TO WARN

Plaintiff argues that there is a genuine issue of material fact regarding whether Spring Loaded II breached its duty to warn plaintiff of the risks associated with jumping on a trampoline at higher weights or the risks associated with jumping from one trampoline to another. We disagree.

MCL 691.1736 provides: An individual who participates in trampolining accepts the danger that inheres in that activity insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries that result from collisions with other trampoliners or other spectators, injuries that result from falls, injuries that result from landing on the trampoline, pad, or platform, and injuries that involve objects or artificial structures properly within the intended travel of the trampoliner that are not otherwise attributable to the operator’s breach of his or her common[-]law duties.

The surveillance video shows that plaintiff’s injury occurred just before he attempted to jump from one trampoline to another. Plaintiff jumped on the trampoline in order to gain momentum to traverse a small section of padded frame that joined the two trampolines. While jumping near the padded section, but before traversing the frame, plaintiff’s ankle buckled and he fell onto the trampoline. Based upon the surveillance video, there is no genuine issue of material fact regarding whether plaintiff accepted the inherent danger of sustaining an injury from landing on the trampoline or trampoline pad. Accordingly, plaintiff cannot recover unless his injury was otherwise attributable to Spring Loaded II’s breach of its common-law duties. MCL 691.1736.

Plaintiff contends that product sellers have a duty to transmit safety-related information when they know or should know that the buyer or user is unaware of the information, and this duty may be attributed to a successor in possession of the product. Plaintiff posits that Spring Loaded II had a duty to transmit safety-related information to its patrons regarding the increased risks associated with patron weight and jumping from one trampoline to another because Spring Loaded II was a successor in possession of trampolines. In support of this premise, plaintiff relies upon Foster v Cone-Blanchard Mach Co, 460 Mich. 696, 707; 597 N.W.2d 506 (1999), in which our Supreme Court held that “in certain circumstances a successor may have an independent duty to warn a predecessor’s customer of defects in a predecessor’s product.” However, plaintiff failed to present any evidence that there were defects in the trampoline, and therefore, plaintiff’s reliance on Foster is misplaced. Thus, there is no genuine issue of material fact regarding whether Spring Loaded II had a duty to warn in this regard.

Moreover, there is no genuine issue of material fact regarding causation because plaintiff failed to present any evidence that he would not have used the trampolines if he had been warned about the increased risk of injury associated with higher weight or jumping from one trampoline to another.[ 5]

IV. CONCLUSION

The circuit court properly granted Spring Loaded II’s motion for summary disposition under MCR 2.116(C)(10). Accordingly, we affirm.

Gleicher, J. (concurring in part and dissenting in part)

Plaintiff Scott Redmond sustained a devastating ankle injury when he landed improperly on a trampoline. Redmond brought a negligence claim against defendant Spring Loaded II, LLC, the owner and operator of the trampoline park where the accident occurred. The Trampoline Safety Act, MCL 691.1731 et seq., governs Redmond’s claim. The act imposes certain safety standards on trampoline manufacturers and operators, but also limits liability through an assumption of the risk provision, as follows: An individual who participates in trampolining accepts the danger that inheres in that activity insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries that result from collisions with other trampoliners or other spectators, injuries that result from falls, injuries that result from landing on the trampoline, pad, or platform, and injuries that involve objects or artificial structures properly within the intended travel of the trampoline are that are not otherwise attributable to the operator’s breach of his or her common law duties. [MCL 691.1736.] [1]

Despite this provision, if an injured plaintiff establishes a violation of one of the specific duties of care imposed under the act, the plaintiff may recover damages to the extent that the defendant’s violations caused the injury. MCL 691.1737; see also Rusnak v Walker, 273 Mich.App. 299, 304; 729 N.W.2d 542 (2006) (construing virtually identical language in the in the Ski Area Safety Act, MCL 408.321 et seq.).

The majority holds that defendant did not violate any of the specific safety standards set forth in the act, and I agree. Unfortunately for trampoline users, few of the safety standards referenced in the act apply to trampoline court operators. But despite that plaintiff’s claim for damages arising from defendant’s alleged safety standard violations must fail for the reasons discussed by the majority, I would hold that plaintiff’s common-law failure to warn claim survives.

Plaintiff alleges that his injury occurred when he landed on the foam padding between two trampolines as he attempted to jump from one trampoline to the other, and that defendant failed to warn of the danger of jumping from trampoline to trampoline. The majority rejects that plaintiff landed on the foam padding. According to the majority’s interpretation of a surveillance video, “[a]lthough he was in close proximity to the padding, it does not appear that he touched the padding when he landed.”

I disagree with the majority’s interpretation of the video, and I further object to the majority’s usurpation of the fact-finding role reserved to the jury. I have watched the video at least a dozen times, and it appears to me that a portion of Redmond’s foot did, in fact, come in contact with the foam padding. It is a close question: a paradigmatic issue of fact. The video was created from a single camera pointed in a single direction. It captures only one angle of view. It is impossible to discern from the video exactly where Redmond’s foot landed as he completed his final jump. Redmond testified that he landed on the foam padding, and the video does not blatantly contradict his testimony. For that reason, the majority errs by finding otherwise. See Scott v Harris, 550 U.S. 372, 378-381; 127 S.Ct. 1769; 167 L.Ed.2d 686 (2007). Viewing the evidence in the light most favorable to Redmond, a question of fact exists regarding where his foot made contact. For summary disposition purposes, we must assume that Redmond landed on the pad between trampolines, as he testified, rather than on the trampoline itself.

Plaintiff’s expert witness, Dr. Marc Rabinoff, authored a lengthy report detailing the dangers of jumping from one trampoline to another. He explained that “[t]rampolines are not designed to have persons jump on the edge of the trampoline bed near the frame,” and generally “are not designed for lateral movement, including the lateral movement required to jump from one bed, over the frame, and on to another bed.” Dr. Rabinoff opined that “there is a substantial increase in the risk of injury to persons who jump on the edge of the trampoline bed near the frame or who are jumping laterally from one trampoline bed to another.” He stressed: Notably, there is nothing inherent about a trampoline park that requires a user to jump near the edge of a trampoline bed. Nor is there anything inherent about a trampoline park that requires a user to jump from one trampoline bed over the frame and padding and on to another trampoline bed.

Dr. Rabinoff concluded that “the proximity of the trampoline beds, coupled with the absence of any signage prohibiting the practice, supports the conclusion that jumping from one bed to another was promoted by the owner/operator at the time of Mr. Redmond’s injury,” and that Spring Loaded failed to warn “that jumping near the edge of the trampoline bed, or using the trampoline for lateral propulsion, or jumping over the frame from one trampoline bed to another, materially increased the risks to users beyond the risk that is normally associated with jumping on a single trampoline bed.”

Based on Dr. Rabinoff’s testimony, I would hold that Redmond has established a jury question regarding whether jumping from one trampoline to another is an inherent risk of the activity. If it is not, Redmond did not accept a risk of injury by attempting this maneuver, and should be entitled to present his negligence claim to a jury.

My analysis considers the language of MCL 691.1736, which states that “obvious and necessary dangers” that “inhere[]” in the sport of trampolining include “injuries that result from collisions with other trampoliners or other spectators, injuries that result from falls, injuries that result from landing on the trampoline, pad, or platform, and injuries that involve objects or artificial structures properly within the intended travel of the trampoline that are not otherwise attributable to the operator’s breach of his or her common law duties.” I am aware that this Court has applied the last antecedent canon in interpreting a similarly worded statute in the Roller Skating Safety Act, MCL 445.1721 et seq., holding that the Legislature meant to eliminate a cause of action for a breach of a common-law duty only when an “object or artificial structure” is in the path of travel. Dale v Beta-C, Inc, 227 Mich.App. 57, 69; 574 N.W.2d 697 (1997) (“[W]e hold that the only enumerated risk that is limited by an operator’s breach of a common-law duty is for injuries ‘which involve objects or artificial structures properly within the intended travel of the roller skater.’ “).

In my view, Dale improperly applied the last antecedent canon, and this Court should not make the same mistake in the context of the statute now at issue. Our Supreme Court has cautioned that “the last antecedent rule should not be applied if ‘something in the statute requires a different interpretation’ than the one that would result from applying the rule.” Dye v Esurance Prop & Cas Ins Co, 504 Mich. 167, 192; 934 N.W.2d 674 (2019), quoting Hardaway v Wayne Co, 494 Mich. 423, 428; 835 N.W.2d 336 (2013). “[T]he last antecedent rule does not mandate a construction based on the shortest antecedent that is grammatically feasible; when applying the last antecedent rule, a court should first consider what are the logical metes and bounds of the ‘last’ antecedent.” Hardaway, 494 Mich. at 429.

A natural construction of the language of MCL 691.1736 suggests that the clause “that are not otherwise attributable to the operator’s breach of his or her common law duties” qualifies the term “injuries” and should be applied to all forms of trampolining “injuries,” rather than being artificially limited to the statute’s final clause. [2] Indisputably, common-law duties of care attend to all facets of trampolining, including the conduct of “other trampoliners or other spectators,” maintenance and inspection of the “trampoline, pad, or platform,” and the substance of the warnings owed to trampoliners at a commercially operated trampoline park. It makes no sense, logically or linguistically, that the Legislature would carve out a single aspect of trampolining for common-law application, leaving the others unaffected.

In Dale, 227 Mich.App. at 69, this Court’s analysis centered on the absence of a comma at the end of the last “injuries” clause: “Proper syntax provides that commas usually set off words, phrases, and other sentence elements that are parenthetical or independent.” The absent comma, the Court ruled, meant that the phrase “not otherwise attributable to the operator’s breach of his or her common law duties” applies only to the last clause. Id. at 68-69. I cannot agree that punctuation is decisive, particularly when the sense of the paragraph leads to a different conclusion than would be dictated by a rigid application of the last antecedent rule. “When the sense of the entire act requires that a qualifying word or phrase apply to several preceding or succeeding sections, the word or phrase will not be restricted to its immediate antecedent.” 2A Sutherland, Statutes and Statutory Constructions (7th ed), § 47.33.

The context of MCL 691.1736 supports that all four described forms of trampolining injuries (resulting from “collisions with other trampoliners or other spectators,” “falls,” “landing on the trampoline, pad, or platform,” and those that involve “objects or artificial structures properly within the intended travel of the trampoliner”) are inherent risks of the activity unless they are “otherwise attributable to the operator’s breach of his or her common law duties.” That “duties” is plural reinforces my view that the term applies to more than just the final form of injury. See, e.g., Duffy v Dep’t of Natural Resources, 490 Mich. 198, 221; 805 N.W.2d 399 (2011). I would reverse the trial court’s grant of summary disposition and would remand for trial regarding whether Redmond accepted an inherent risk when he attempted to jump from one trampoline to the next, and whether a common-law duty required defendant to warn him of the risks of that activity.

Notes:

[ 1] Spring Loaded I, LLC, Spring Loaded II, LLC, and Spring Loaded III, LLC are separate franchises of an entity named Airtime International, and are owned by the parent company Spring Loaded LLC. Spring Loaded I, LLC and Spring Loaded III, LLC were dismissed from the case below and are not part of this appeal.

[ 2] Plaintiff argues in his reply brief that the issue of causation was not properly before the circuit court because it was not raised by Spring Loaded II when seeking summary disposition. We disagree. Under MCR 2.116(G)(4), “[a] motion under subrule (C)(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact.” Spring Loaded II addressed the issue of proximate cause in its April 17, 2019 supplemental brief in support of its motion for summary disposition. Specifically, Spring Loaded II rebutted the opinion of plaintiff’s expert that Spring Loaded II’s failure to develop and communicate weight restrictions contributed to plaintiff’s injuries. Spring Loaded II argued that the expert’s opinion regarding causation was mere speculation and plaintiff’s injury was caused solely by plaintiff’s improper landing technique rather than any alleged violation of the Trampoline Court Safety Act.

[ 3] ASTM is an acronym for the American Society for Testing and Materials.

[ 4] Although plaintiff stated in an affidavit that he would not have used the trampolines if he had been warned about the increased risk of injury associated with higher weight, plaintiff’s affidavit was filed as part of plaintiff’s motion for reconsideration after the circuit court granted summary disposition in favor of Spring Loaded II. When reviewing an order granting or denying summary disposition, we consider only the evidence that was properly presented to the trial court in deciding the motion. Village of Edmore v Crystal Automation Sys Inc, 322 Mich.App. 244, 262; 911 N.W.2d 241 (2017). We will not consider evidence on appeal that was first presented in a subsequent motion for reconsideration. Innovative Adult Foster Care, Inc v Ragin, 285 Mich.App. 466, 474 n 6; 776 N.W.2d 398 (2009). Thus, we do not consider plaintiff’s affidavit here.

[ 5] Although plaintiff stated in an affidavit that he would not have used the trampolines if he had been warned about the increased risks, plaintiff’s affidavit was filed after the circuit court granted summary disposition in favor of Spring Loaded II. Thus, we will not consider it in this appeal. Village of Edmore, 322 Mich.App. at 262; Innovative Adult Foster Care, Inc, 285 Mich.App. at 474 n 6.

[1] In Felgner v Anderson, 375 Mich. 23, 39-40; 133 N.W.2d 136 (1965), the Michigan Supreme Court eliminated the assumption of the risk defense in tort cases. The Trampoline Safety Act resurrects the doctrine in trampoline-associated negligence claims.

[2] By way of reminder, here is the language. I have highlighted the words leading to the mosty natural reading: An individual who participates in trampolining accepts the danger that inheres in that activity insofar as the dangers are obvious and necessary. Those dangers include, but are not limited to, injuries that result from collisions with other trampoliners or other spectators, injuries that result from falls, injuries that result from landing on the trampoline, pad, or platform, and injuries that involve objects or artificial structures properly within the intended travel of the trampoline are that are not otherwise attributable to the operator’s breach of his or her common law duties. [MCL 691.1736.]

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Michigan Trampoline Statute protects Trampoline Operator from claims that he violated ANSI standards.

Posted: November 15, 2021 | Author: Recreation Law | Filed under: Assumption of the Risk, Indoor Recreation Center, Michigan | Tags: #TrampolineParks, ANSI, assumption of the risk, Failure to Warn, Indoor Trampoline Park, Michigan Trampoline Safety Act, Trampoline | 1 Comment

Statute did not require nor did the ANSI requirement state that the defendant trampoline park needed to tell the plaintiff, he was too fat and unskilled to jump on the trampoline.

Redmond v. Spring Loaded I, LLC, 349683Court of Appeals of Michigan, May 06, 2021

State: Michigan

Plaintiff: Scott Redmond

Defendant: Spring Loaded I, LLC, and Spring Loaded III, LLC, Defendants, and Spring Loaded II, LLC, doing business as Airtime Trampoline-Sterling Heights

Plaintiff Claims: Failure to comply with Michigan’s Trampoline Court Safety Act, MCL 691.1731 et seq.

Defendant Defenses: It complied with the Michigan’s Trampoline Court Safety Act, MCL 691.1731 et seq.

Holding: For the Defendant

Year: 2021

Summary

A 47-year-old 275 man was injured while attempting to jump from one trampoline to another at the defendant’s trampoline facility. He claimed the defendant had a duty to warn him of the risks and failed to follow ANSI standards.

The court found the plaintiff assumed the risks, so there was no duty to warn and ANSI standards were created for manufacturers and designers of trampolines, not operators.

Facts

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

This is simply an interpretation of a surveillance video and the application of a statute to what the court saw on the video. The statute is the Michigan Trampoline Court Safety Act, § 691.1731 et. seq.

§ 691.1731. Short title This act shall be known and may be cited as the ‘trampoline court safety act’.”

Mich. Comp. Laws 691.1731 Short title

§ 691.1733. Operator; duties

An operator shall do all of the following:

(a) Post the duties of trampoliners and spectators as prescribed in this act and the duties, obligations, and liabilities of operators as prescribed in this act in conspicuous places.

(c) Maintain the trampoline court according to the safety standards cited in subdivision (b).

(d) Maintain the stability and legibility of all required signs, symbols, and posted notices.

§ 691.1735. Trampoliner; duties

While in a trampoline court, a trampoliner shall do all of the following:

(a) Maintain reasonable control of his or her speed and course at all times.

(b) Read and follow all posted signs and warnings.

(c) Avoid bodily contact with other trampoliners or spectators.

(d) Not run on trampolines, over pads, or on platforms.

(e) Refrain from acting in a manner that may cause injury to others.

(f) Not participate in a trampoline court when under the influence of drugs or alcohol.

(g) Properly use all trampoline court safety equipment provided.

(i) Remove inappropriate attire, including hard, sharp, or dangerous objects, such as buckles, pens, purses, or badges.

(j) Conform with or meet height, weight, or age restrictions imposed by the operator to use or participate in the trampoline court activity.

(k) Avoid crowding or overloading individual sections of the trampoline court.

(l) Use the trampoline court within his or her own limitations, training, and acquired skills.

(m) Avoid landing on the head or neck. Serious injury, paralysis, or death can occur from that activity.

The simple analysis of the plaintiff’s argument is the ANSI code which applies to the manufacturing of Trampolines was not met by the defendant, and the defendant did not pass on required notices established by the code to the plaintiff.

The first issue was defendants failed to pass on the size restrictions that ANSI requirements might require. The court denied this argument by stating the ANSI code applied to manufacturers not trampoline owners or operators.

However, ASTM F2970-13 § 6 applies only to “designers/engineers or manufacturers” of trampolines and § A.1.1.4 applies only to manufacturers. Spring Loaded II is an operator of a trampoline court facility and plaintiff presented no evidence that Spring Loaded designed or manufactured the trampoline.

The next issue was ANSI required an operation’s plate to be firmly affixed to the trampoline. The defendant argued there was no operation’s plate because the trampoline did not come with one. The operation’s information was to include the maximum size of someone allowed on the trampoline. At the time of his injury, the plaintiff testified in his deposition; he weighed 275 pounds.

The court struck this argument down because the failure to post the plate was not the cause of the plaintiff’s injury. There must be a causal connection, proximate cause, to prove negligence. Generally, the court found trampolines are designed to hold 300 lbs., so that would not have changed the issues with the plaintiff since he weighed less than the design of the trampoline. Finally, there was no argument by the plaintiff that if the information were posted, he would not have used the trampoline.

However, even if a reasonable trier of fact could find that Spring Loaded II violated ASTM F2970-13 § 9.1 by failing to post the information plate, no reasonable trier of fact could find that the omission caused plaintiff’s injury. Under ASTM F2970-13 § 6.8.[ 3], trampoline manufacturers are generally required to design trampolines that are able to support users weighing 300 pounds and plaintiff testified in his deposition that he weighed approximately 275 pounds on the date of his injury. Thus, plaintiff would not have been informed that he exceeded the maximum user weight even if the information plate had been posted. Moreover, plaintiff failed to present any evidence that he would not have used the trampolines if the information plate had been posted.

The plaintiff argued the defendant violated an ANSI standard for:

…failing to develop and communicate information regarding the risks associated with jumping near the edge of the trampoline bed or the risks associated with jumping from one trampoline to another, thereby causing plaintiff’s injury.

Again, the court struck this down because the ANSI standard was for designers and manufacturers not operators. The standard argued by the plaintiff that was not met also had a duty to inform the manufacture of any incident within seven days of the incident which was not done in this case. Again, the failure to notify the manufacture of the incident within seven days was not the cause of the plaintiff’s injury.

The plaintiff next argued the defendant had a duty to warn of the risks of jumping on a trampoline when you were fat or the risks of jumping from one trampoline to another.

The court found the defendant did not have a duty to warn of jumping on a trampoline near the edge or jumping from one trampoline to another. The statute states “An individual who participates in trampolining accepts the danger that inheres in that activity insofar as the dangers are obvious and necessary.” An assumption of the risk statement set out in the statute. Based on the video, the plaintiff clearly accepted the risks of his actions and as such assumed the risk requiring no duty to warn on the part of the defendant.

The plaintiff argued:

However, this argument fails because it speaks to defects in the product. In this case, there were no defects in the trampoline that caused the plaintiff’s injuries.

There was a dissent in the decision. The dissenting judge agreed with the majority that there was no violation of the Michigan Trampoline Safety Act. However, the dissent did believe that there was a valid failure to warn claim. This argument stems from the dissenting judges view of the video where he believes the plaintiff’s toe touched the foam padding at the edge of the trampoline, leading to a requirement on the part of the defendant to warn patrons of jumping from mat to mat. Because the dissenting judge viewed the video differently than from the majority, he felt that factual issues should be allowed to go to the jury.

However, the dissent is just that, a minority opinion and the majority opinion is the way the decision is handled.

The circuit court properly granted Spring Loaded II’s motion for summary disposition under MCR 2.116(C)(10). Accordingly, we affirm.

So Now What?

The defendant should immediately post notices of the dangers of jumping from trampoline to trampoline and other risks. Just because the defendant won the appeal does not mean that the dissent is not an important legal analysis that can be ignored.
1. Included in those warnings should be one about fitness and weight of anyone jumping.
The defendant should use a release. A release in Michigan would have stopped this lawsuit sooner or might have prevented it from starting.
I would even post the Michigan Trampoline Safety Act duties required of a patron, and the risks accepted by a patron.

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

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

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

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

Standish v. Jackson Hole Mountain Resort Corporation

State: Wyoming, 10^th Circuit Court of Appeals

Plaintiff: Thomas A. Standish, IV; Meghan Keiter

Defendant: Jackson Hole Mountain Resort Corporation

Plaintiff Claims: Negligence and Loss of Consortium

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

Holding: For the Defendant Ski Area

Year: 2021

Summary

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

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

Facts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court concluded:

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

So Now What?

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

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

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

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

Standish v. Jackson Hole Mountain Resort Corporation

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

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

Jackson Hole Mountain Resort Corporation, Defendant-Appellees.

No. 20-8045

United States Court of Appeals, Tenth Circuit

May 14, 2021

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

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

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

Before TYMKOVICH, KELLY, and PHILLIPS, Circuit Judges.

TYMKOVICH, Chief Judge.

I. Background

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

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

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

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

II. Analysis

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

A. Inherent Risk

1. Standard of Review

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

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

2. The Wyoming Recreation Safety Act

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

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

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

a. Duty Under the WRSA

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

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

b. Inherent Risk

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

B. Consideration of Inadmissible Facts

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

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

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

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

III. Conclusion

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

———

Notes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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Table of Contents

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

Chapter 2 U.S. Legal System and Legal Research

Chapter 3 Risk 25

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

Chapter 5 Law 57

Chapter 6 Statutes that Affect Outdoor Recreation

Chapter 7 Pre-injury Contracts to Prevent Litigation: Releases

Chapter 8 Defenses to Claims

Chapter 9 Minors

Chapter 10 Skiing and Ski Areas

Chapter 11 Other Commercial Recreational Activities

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

Chapter 13 Rental Programs

Chapter 14 Insurance

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